Police v Ioane [2012] CKHC 79; CR682.10 (30 March 2012)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR NO'S 682/10 - 691/10

POLICE

v

IOANE IOANE

Hearing: 30 March 2012
Counsel: Ms Evans for the Crown
Mr Petero for the Defendant

Sentence: 30 March 2012

SENTENCING NOTES OF THE HONOURABLE TOM WESTON CJ

[1] Mr Ioane you are here for sentence having pleaded guilty to ten charges of having sexual intercourse with a girl between age of 12 and 16 years. This is an offence that carries a maximum term of imprisonment not exceeding 7 years.

[2] The victim in this case was aged 12 at the time the offences happened. You are aged 39. That age discrepancy is a relevant factor in this case.

[3] The facts are as they have been outlined in the Probation report, and other materials before the Court, point to some bizarre circumstances. It is very hard for the Court to grasp a firm and settled view of what has happened.

[4] From the victim's point of view, both her mother and you operated together and effectively forced her to have sex with you.

[5] From the mother's point of view, she points to her daughter as being the initiator and she seems, in some respects, anyway, to be sympathetic to you.

[6] From your point of view, you seem to indicate that both the mother and the daughter were involved. You say that you love the complainant. You hoped that you would have had a long relationship with her.

[7] In the middle of all of this, it is difficult to find who is telling the truth. Each person seems to have vested reasons for stating the view that they do. I think there is some truth in the suggestion that the victim is manipulative and lying, and that may mean that her view of events should be regarded with some suspicion. But all of that, to some extent, is beside the point.

[8] The fact of the matter is that a 12 year old girl is not in a position to consent to sexual intercourse. The law deems someone at that age to be subject to the law's protections and the simple point is that you should not have had sex with her. The fact that you might think that she came onto you is also not an excuse.

[9] To the extent that these sort of factors are relevant here, it seems to go to the question of aggravation. If the Court had reached a firm view that you forced yourself on the girl, then that would be an aggravating feature.

[10] The Crown's submissions proceed on the basis that there was grooming and encouragement by you, that you paid money, and that in a sense you were the aggressor, you were the initiator of this, and that is how the Crown has characterised this.

[11] I can see that there is an argument to that effect but I am not confident that that is necessarily the correct position. Consequently, I am not prepared to accept that there are the particular aggravating features that the Crown has identified.

[12] The Crown relied on those aggravating features to come to the conclusion that the starting point for sentencing you is the period of 5 years. Because I believe that they have overstated those aggravating features, it seems to me that an appropriate starting period is that of 4 years.

[13] You have pleaded guilty at the earliest opportunity, and that does entitle you to a discount.

[14] Taking those factors into account, it seems to me that the appropriate sentence of imprisonment for you is 2 ½ years, and I sentence you to 2 ½ years in prison.

[15] On the question of name suppression, your counsel has sought that your name be suppressed along with that of the victim's. I have already suppressed the victim's name. In my opinion, your name should be made public and the interim order suppressing publication of your name is now at an end and your name may be published.

__________________________
Tom Weston
Chief Justice

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