Police v TM [2011] CKHC 82; CR 200.10 (8 September 2011)

ORDER PROHIBITING THE PUBLICATION OF NAMES, ADDRESSES OR OTHER IDENTIFYING INFORMATION OF THE DEFENDANT, INCLUDING THE RELATIONSHIP OF THE DEFENDANT TO THE VICTIM

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR NO. 200/10

POLICE

v

T M

Hearing: 8 September 2011
Counsel: C Evans for the Police
C Petero for the Prisoner

Sentence: 8 September 2011

SENTENCING NOTES OF THE HONORABLE TOM WESTON CJ

[1] Mr M, you appear before me for sentence, having pleaded guilty to a charge of rape, the maximum penalty for which is a term of imprisonment of 14 years.

[2] I have read the victim impact report. It makes for depressing reading. Although this fact is suppressed from public reporting, the victim was your 11 year-old daughter who became pregnant as a result of what you did. She now lives in Australia with her aunt where she is trying to rebuild her life which you have, by your selfish actions, shattered. I frankly doubt that you have any real understanding of what you have done.

[3] I have heard submissions as to what is the appropriate starting point for sentencing. I have been referred to a decision of the Cook Islands Court of Appeal in the matter of R v Katuke.[1] I was a member of that Court. At [30] of the Court's decision the Court said:

We are of the view that the apiate ing point in a non-contested rape case with no agno aggravagravating feature is four years' imprisonment. This accords with the trend of sentencing in the Cook Islands established by the cases cited since 1983.

[4] During the course of submissions, I raised with the Crown whether that statement still reflected the current position in the Cook Islands. I am, of course, bound by that decision of the Court of Appeal, but I have invited the Crown to give consideration as to whether in a future case it might wish to challenge or revisit that proposition as no longer representing the community revulsion for this type of offending. It can be contrasted with the position taken in New Zealand where a much higher starting point for rape is accepted.

[5] In any event, the starting point in this case for your sentencing is four years. That already takes account of the fact that you have pleaded guilty. Nevertheless, although it came late in the history of this case, I think it is appropriate to recognise that the guilty plea here spared your daughter a terrible ordeal. I do want to bear that in mind in considering how to approach this further and so I start with a term of four years' imprisonment. I now turn to look at what is an appropriate range to recognise the aggravating features of this case. The rape victim was your daughter, she was aged only 11 and as a result of your offending, she became pregnant and has had to bring up the child of your rape.

[6] Clearly, there needs to be an uplift from four years to reflect this aggravating feature. I have found it most difficult to come up with an appropriate period which also gives some acknowledgement for your plea of guilty which has spared her the ordeal of the trial. As best I can, I believe that an appropriate term of imprisonment for you, reflecting the starting point and that uplift, is a sum of five and a half years' imprisonment.

[7] I now sentence you to that term of imprisonment.

[8] I also give fair warning that, in future cases, this term may well be regarded as lenient. I suspect that, in future cases, there may well be greater terms of imprisonment for this type of offending.

[9] I repeat that the name of the prisoner is suppressed, as is the fact that the victim was his daughter.

[10] Mr M, the Registrar will take you to the cell and arrangements will be made for you to be transported to the prison.

[11] You may stand down.

_______________________
Tom Weston
Chief Justice

Editorial Note: Derived from the Court's electronic records and believed to be correct and final.

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^[1] R v Katuke [2008] CKCA; CA 03.2007 (1 January 2008).