Kafoa v Rex [1997] TOCA 3; APPEAL No 14-96 (20 June 1997)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA.

APPEAL NO 14/96

BETWEEN

IKA KAFOA
First Appellant
MAKISI FETU'U
Second Appellant
FANAIKA PETELO
Third Appellant

AND

REX
Respondent

Coram Morling J
Burchett J
Tompkins J

Counsel for appellants Mr Hola
Counsel for respondent Ms Bloomfield

Date of Hearing 18 June 1997
Date of Judgment 20 June 1997

JUDGMENT

These are three appeals against sentence. The first appellant was convicted of abetting the rape and second and third appellants of committing the rape of a young woman. The offences occurred on 22 July 1995. Each appellant was sentenced by Hampton CJ on 1 August 1996 to two years imprisonment.

On 22 August 1996 each appellant was admitted to bail pending the hearing of their appeals. We find the decision to grant bail (not made by Hampton CJ) surprising having regard to the gravity of the offences and appellants' meagre prospects of success in their appeals against conviction. The appeals were withdrawn at the door of the Court. It must be a rare case indeed in which a person convicted of rape can properly be granted bail pending an appeal against conviction and sentence. These appeals were not such cases. As we indicate hereunder the fact that the appellants were admitted to bail and have lived in the community for nearly a year since they were convicted has complicated the task of deciding what orders should be made in disposing of the appeals.

We have found great difficulty in deciding these appeals and our views have fluctuated on what should now happen to the appellants. The sentences imposed by Hampton CJ can only be described as very lenient for this class of offence. The reasons justifying the leniency of the sentences are set out in the Chief Justice's careful and comprehensive remarks on sentencing and we shall not attempt to recapitulate them in any detail. Without seeking to recount in any detail the facts surrounding the offences, it should be said that they were extremely serious. The first appellant, after having had consensual sexual intercourse with the complainant, virtually invited the other appellants to also have intercourse with her. She made her unwillingness to do so quite clear, but submitted because she was at a lonely place at night in the company of young men who were significantly affected by alcohol. Although it is of no great significance, it is the fact that the appellants' admittedly disgraceful conduct was not accompanied by further degrading physical acts.

All the appellants were young (aged 18, 19, and 22 at the date of the offences, one being still at school), they had all previously led blameless lives (notwithstanding, in the case of the 18 year old, a violent childhood and virtual abandonment by his parents), no physical injuries were inflicted upon the complainant (but this is not to overlook the gross affront inherent in the rapes), the offences were not premeditated and occurred when all the appellants must have been greatly affected by alcohol, and all the appellants had sought and obtained forgiveness from the complainant and had sought lo recompense her in one way or another for the wrong done to her.

All the above factors were taken into account by Hampton CJ and, as we have said, he dealt with the appellants very leniently. But it is submitted on the appellants' behalf that in the special circumstances of these cases the sentences imposed should have been suspended. The special circumstances relied upon are the repeated statements made by the complainant that she did not wish the appellants to be imprisoned and that she had, in effect, forgiven them.

We recognize the danger of accepting such statements at their face value because of the risk that they have been induced by pressure brought to bear on a complainant by family or friends or others. If we had any doubt on that matter our task would be easy, because in that event we would not entertain the thought of suspending the sentences. But the complainant has lived in a de facto relationship with one of the appellants both before and after the offences. And she has formed close friendships with the wives of two of the others and with the families of all of them. She was interviewed by Ms Anne Grigg, an experienced Probation Officer who provided a report to the Court. The report read, in part, as follows:

"At the time of the offence the complainant was upset and her complaint against the men. She confirms that they all apologised and helped her in practical ways once they realised what they had done. She has been on good terms with the families since, especially Tini's wife and feels concern for the three wives involved.

The complainant has prayed for guidance and feels the men should not be sentenced to prison because of the continuing hardship to their families. Being pregnant herself and having her partner's support she feels concern for the other two pregnant young women whose husbands may be imprisoned.

She bears the offenders no ill-will and in no way appears to be under any pressure to speak on their behalf. In fact she seems to be showing an unusual degree of charity towards them and to be genuinely fond of them and their families.

Although she was to some extent a vulnerable young woman and abused by her then boy-friend and those involved, she continued to live with Ika Kafoa when she might have returned to her extended family. After going to live with her new partner she has maintained her friendships with the offenders and their families.

The effect on her of the actual incident appears to have been less traumatic than one would have expected. She was only 17 years at the time but not ignorant of what was happening or the implications. Her level of schooling indicates a reasonable level of general awareness and in my conversation with her the overall impression was of her wish to help to do good in a situation of distress for all concerned."

The complainant's attitude at the trial appears to have been no different. She appears to have been an unwilling witness and would have much preferred the trials not to have proceeded.

If a complainant refused to give evidence in such a case, it is likely that the prosecution of the appellants would not have proceeded at all if the proceedings had been brought in a New Zealand or Australian court. That is no reason, of course, for applying to Tonga the practice adopted elsewhere, but it does highlight the fact that the attitude of the complainant is of particular significance on the question of sentence.

It is an unsatisfactory state of affairs that these three young men have been living in the community for nearly two years since the offences, nearly half of that time after conviction. But we cannot shut our eyes to what has happened in that period. Kafoa has married and has a child and apparently supports his family on a meagre income. Fetu'u has also married and has a child. All three appear to have led blameless lives, as they did before the offences were committed. The likelihood of them being encouraged to engage in future anti-social conduct by unduly lenient sentences seems extremely remote. Nevertheless, the Court must be astute to mark the offence of rape with the extreme abhorrence with which the Court and the community regard it.

After considerable hesitation and not without some misgivings a majority of the Court has come to the view that in the very special circumstances of these cases it is possible to give the appellants the chance of avoiding custodial sentences, and at the same time to mark the seriousness of the offences by imposing longer periods of imprisonment which are appropriate and which they might have to serve should they offend again. The majority think this can be achieved by increasing the sentences imposed by the trial judge to three years imprisonment in each case, and then suspending the sentences for 3 years, and ordering each appellant to perform 120 hours community service as directed by Ms Grigg (or her nominee) within 12 months of this date. One member of the Court is of a contrary view and considers the appeals should be dismissed.

The orders of the Court are as follows:

1. In each appeal, appeal allowed and sentence imposed by the trial judge quashed.
   
2. Each appellant is sentenced to three years imprisonment, each sentence to date from today.
   

3. Each sentence is suspended for a period of 3 years.

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