Police v Katuke [2007] CKHC 34; CR496.2004,108.07 (13 April 2007)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NO: 496/2004
CR No. 108/07

POLICE

v

KATUKE KATUKE
Defendant

Mr. Mitchell for Crown
Mr. George for Accused

SENTENCE OF WILLIAMS J

1. The Accused appears for sentence today having been found guilty by a jury on two charges. The first was a charge of rape which carries a maximum sentence of 14 years. The second was a charge of having sexual intercourse with a girl who at the time was living with him as a member of his family and under his care and protection and the penalty in that case for that charge is 7 years.
2. The circumstances in brief were that at the time the victim was 16 years and staying with the Accused and his then partner, now his wife, because his wife's sister from Atiu had asked that the victim lodge there. In effect the arrangement was that she would be their baby sitter and she was paid for babysitting duties. She was given free board and lodging.
3. In spite of her youth, she had in June 2004 given birth to a baby. She came back to Rarotonga with her mother for the purposes of adoption of that child and it was at that time that it was decided, at the request of the victim's mother, that she stay and carry out these duties and live with the Accused and his wife.
4. On the day in question, the Accused had been asked by his wife to come to her work and when there she instructed him to go home to get a bucket that she needed. She was going to take some cooking oil with permission from her place of employment and wanted something to put it in. So he was sent home on this errand. When he arrived the victim was asleep with the accused's child alongside.
5. She was woken and he asked to have sex with her. She said no twice. She admitted that on the third occasion she said nothing but giggled. The Accused at his trial took the view that the giggling was sufficient indication of consent, a stance which the jury obviously rejected, and in my view, rightly so. If giggling and laughter was always to be taken as consent, we would have a serious problem on our hands. Anyway, he then told her to get up and led her by the arm to the toilet where he had intercourse with her. It was brief.
6. Later, he was questioned by his wife who was very suspicious about why he had taken so long at home. He persistently refused to answer or comment. In other words he didn't "come clean" with his wife.
7. As I have already said, the intercourse was brief and fortunately the medical report signified that there were no signs of bruising or scratching or anything of that sort.
8. The Accused was sober at the time, so one can only assume that he knew exactly what he was doing and he did it for the sole purpose of his own sexual gratification.
9. The Victim Impact report shows that the victim suffers from a lack of self esteem. This may explain some of her behaviour. She has been mildly depressed but there have been no long term after effects. She is now living on Atiu with members of her family.
10. The Accused has conviction for one minor offence but it is nothing that counts much here. I accept he has been a good provider to his wife and looks after his children. It is most regrettable that on this occasion that he has seriously lapsed and committed a foolish and totally inappropriate act.
11. He elected to defend both charges as is his right but he is reluctant to accept the verdict of the jury that rape was committed.
12. Rape is a serious crime and as Mr Mitchell has demonstrated, in the Cook Islands, it is rare to see any sentences of less than four years.
13. The second charge is one where the law is in place to ensure that young persons who are living as members of a family group or as if they were a member of the family group, are not taken advantage of for sexual purposes. The concept there is that once a young person is treated as if that person is a member of a family there is an element of trust Imposed on the putative family members who are responsible for the care and protection of that person. Consent is not a defence.
14. I have read the Probation Report which I found very helpful. It is a fact that imprisonment here will place a burden on the wife which is regrettable. The recommendation of the Probation Service is 12 months imprisonment on each charge with the sentences to be served concurrently.
15. Mr George for the Defence has referred to the fact that the complaint was a result of the persuasion of an aunt and that during the trial the victim expressed her reluctance to continue with the proceedings. I do not place great weight on those matters. I do however think it is appropriate although this is unusual, to take into account the long delay in bringing this prosecution.
16. The aunt who was the one who brought the matter to the Police indeed said, when the Police came to see her prior to the trial, that her view was that she would withdraw her charges if she could because of the long delay. Of course, it is not for the Complainant to make that decision. The Crown on behalf of the state makes that decision and the decision, which in my view was a proper one, was to proceed. But it is right to say that instead of being promptly prosecuted and tried, the Defendant has been on remand for a long period and suffered the anxiety of waiting to know his fate. This factor should be taken into account.
17. It goes without saying that I am very unimpressed with what has happened here in terms of the Police delays. I am pleased to hear that steps have been taken to remedy similar delays in other cases,
18. As Mr George has pointed out, in New Zealand in similar circumstances, there have been occasions when the Courts have struck out the charges although in those instances it was a situation where there was real doubt as to whether there could be a fair trial because of the length of the delays.
19. Mr George stressed the hardworking and responsible character of the Accused. He has suggested that while it might be thought that imprisonment is inevitable, other alternatives should be considered. For example, that there should be a long period of probation for 3 years with 12 months community service or if that is not accepted then as an alternative to 12 months imprisonment, 6 months imprisonment.
20. In my view rape is such a serious charge that it would be irresponsible of this Court not to impose a sentence of imprisonment. As I have noted the Probation Service has suggested 12 months. That was the sentence of Justice Nicholson in some other cases which, although of a different character, seem to have similarity in that there were no injuries and those cases were too at the lower end of the scale.
21. Mr Mitchell has suggested that the proper sentence might be 2 years (with 1 year on the second charge) with that sentence to be served concurrently.
22. I think I must take into account the delay factor and in my view the exceptional circumstance of that delay enables me to impose a sentence of 9 months imprisonment on both charges. The sentences to be served concurrently.
23. I want to make it very clear that nothing in this sentence is meant to indicate that the Court is going to be taking a lenient view of rape cases even those at the so-called bottom end of the scale. I have been minded to impose a lesser penalty because I am troubled by the long delay and the fact that this Accused has been kept in suspense for a long period and I also want, by my sentence, to signify my displeasure at the prosecution delays.

David Williams CJ
13 April 2007