Police v Teao [2012] CKHC 66; CR176.11 (23 March 2012)

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

CR NO'S 176/11, 368/11, 622/11
& 777/11

POLICE

v

NGATOKOA TEAO

Hearing: 23 March 2012
Counsel: Mr Manavaroa for the Prosecution
Mr George for the Defendant

Sentence: 23 March 2012

SENTENCING NOTES OF THE HONOURABLE TOM WESTON CJ

[1] Mr Teao who are here today for sentence on five charges to which you have pleaded guilty. Three of these are contempt charges relating to the breaching of bail. As your counsel Mr George has said, if nothing else, these show that you suffer from a lack of discipline.

[2] I believe that the overall pattern of the offending also shows someone of considerable immaturity who feels that he can effectively do what he likes. It is plain to me that you have got a fair bit of growing up still to do.

[3] I formally enter convictions on all five of the charges to which you have pleaded guilty. Of the five charges, two are more serious, and one is particularly serious. I am going to deal with that first.

[4] That serious charge is the one brought under Section 145(2) of the Crimes Act which is attempted sexual intercourse with a girl under the age of 12 years. She was considerably under the age of 12 years; in fact she was aged six years. You deliberately separated her from her brother and another young boy and then you took advantage of her. When she screamed it seems to have brought matters to an end. And fortunately all we are faced with today is the case of attempt rather than a completed act. Nevertheless, Parliament has signalled that an attempt in these cases is regarded as an extremely serious offence because the maximum penalty is one of 10 years imprisonment. The fact that your victim was aged only six years is a considerable aggravating factor. She was a vulnerable young girl and you took advantage of her.

[5] The starting point for assessing your sentence, the Crown says, is four years. Mr Manavaroa has helpfully drawn my attention to a decision from 2010 before the High Court of New Zealand in which the defendant faced a charge for attempted sexual conduct with a girl under the age of 12 years. The maximum penalty under New Zealand Law for that was 10 years imprisonment. While the exact charge and the exact facts are different, the general analysis undertaken by the Court is, with respect, very helpful. That case involved a guilty plea and other mitigating factors. The Judge there ultimately sentenced the defendant to two years and six months imprisonment. Mr George accepts that on the facts of the case that was an understandable outcome, and indeed in some respects, it might be thought to have been a generous outcome.

[6] In my opinion, the starting point for analysing your case, is a period of imprisonment for three years. In setting that figure, I have taken account of the aggravating factors which I have already taken mentioned above, in particular that the victim was a girl aged only six years.

[7] Both the Crown and your counsel have emphasised a number of mitigating factors. You are apologetic and remorseful, you acknowledge your guilt, and you have entered your guilty plea early, you are only aged 17 at the moment, and that this is your first appearance before the Court.

[8] Taking those factors into account, I believe that there should be a discount from the three years starting period of 33% which would mean that I sentence you to 2 years imprisonment in relation to this charge Mr Teao.

[9] I also formally suppress any details and information that may lead to the identification of the victim of this crime.

[10] I now move to the next charge, which is brought under Section 209 of the Crimes Act, and it relates to an assault that you made on a Fijian man when you hit him with a bottle of beer. Your counsel has said that this incident was provoked by two Fijians although that is not consistent with the statement of facts. But whether or not is was provoked, the fact is, that you hit another person with a half full bottle of beer and caused substantial damage.

[11] You said that the incident was fuelled by alcohol and again that you are remorseful now for what you had done.

[12] There are elements here of a drunken scuffle between two young men. Regrettably these are too frequent but they are a fact of life and in my view this is not as serious a charge as the previous one.

[13] I sentence you to six months imprisonment in relation to this assault. That is to be served concurrently with the previous charge.

[14] I have been asked to make an Order for reparation in relation to this charge but I see no point in doing that and I do not do so.

[15] That then leads to each of the three contempt charges. In my opinion, these do show a contemptuous attitude on your part and one that needs to improve substantially.

[16] I have heard that you have been attending the Academy and indeed that was where you were yesterday when you were meant to be in Court being sentenced. I think it is good that you are trying to change your life by attending at that Academy but I have to say everything that is before me shows that you are going to have to make quite an effort to turn your life around.

[17] I hope that while you are in prison there will be an opportunity provided to you to further your education, and to learn something from the terrible mistakes that you have made now. I hope too there will be an opportunity for you finally to do the growing up that you should have done by now.

[18] In each of the contempt cases I sentence you to one month imprisonment, but that is to be served concurrently.

[19] Mr Teao that means the total period of your imprisonment is two years. You will be on probation once you come out of prison but that is all dealt with automatically and there are no Orders that I need to make about that.

[20] Normally, one Orders the payment of Court costs but frankly I think that is a waste of time in the present case, so there will be no Order for Court costs.

__________________________
Tom Weston
Chief Justice

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