Kolo v Rex [2006] TOCA 5; AC 04-2006 (16 August 2006)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

AC 4/2006

BETWEEN:

SOSEFO MALU KOLO
Appellant

AND:

REX
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr Clive Edwards for the Appellant
Mr Kefu for the Respondent

Date of hearing: 8 August 2006
Date of judgment: 16 August 2006

JUDGMENT OF THE COURT

[1] This was an appeal against the severity of sentences imposed for two offences of indecent assault on a female charged pursuant to s.124(1) of The Criminal Offences Act (c.18). The appellant pleaded guilty, and was sentenced on each count to imprisonment for one year, the sentences to run consecutively but the final six months of the cumulative period of two years to be suspended for one year from the date of release upon condition that the appellant be on probation for that year and that, during that year, he keep away from, and have no contact with, the complainant.

[2] The events giving rise to the two counts took place some four or five months apart, the first some time in May 2003 and the second on 8 October 2003. In May, and still on 8 October, of that year, the complainant was twelve years old and was attending primary school. On at least one of the occasions, she was wearing the distinctive uniform of a primary school girl. Her age, of course, is important for at least two reasons: on the one hand, given the other circumstances acknowledged by the appellant, it led inevitably to the plea of guilty since, by s.124(2), a "girl under the age of 16 years cannot in law give any consent which would prevent an act being an indecent assault for the purposes of [the] section"; and on the other hand, the youth of so young a victim exacerbates the offence as being one against a person of a particularly vulnerable and impressionable age. But counsel for the appellant claimed, as an element of mitigation, that, at his arraignment, this girl could be seen to be a big and well developed girl who might have been taken for older than she was. One difficulty with that proposition is that the arraignment was more than three years after the first offence, the appellant having originally contested his guilt and secured a number of adjournments. Some three years earlier, and especially when she was dressed in primary school uniform, there is no reason to imagine the appellant was in any doubt she was a very young girl, but we proceed, as the judge did, on the basis that she was mature for her age.

[3] The first offence occurred after the appellant, who was a man in his mid fifties, had become known to the girl through several previous occasions on which she had been the recipient of money he had given her at his home. On the day of the offence, she was there again with a friend, when the appellant called to her from his bedroom to come to him to get some money. Upon her entering, he told her to remove her underwear, then rubbed his erect penis on her outer genitalia and sucked her breasts. Afterwards, he gave her five dollars, with an injunction not to tell anyone what had been done.

[4] On the second occasion, after sitting the examination for entry to secondary school, the girl again went to the appellant’s home. Upon her arrival, she was invited into the bedroom, where the appellant took off her underwear, then rubbed his penis on her genitalia. This conduct was repeated later in the day. At some stage on that day, the appellant told the girl he loved her and whenever she needed anything she should come over.

[5] The girl did come over on the next day, but was intercepted by an alert neighbour, with the result that inquiries were undertaken; a medical examination confirmed signs of regular touching outside the genitalia; and the prosecution of the appellant followed.

[6] In fixing sentences of one year, the judge said the maximum penalty on each count was two years. The Crown pointed out that this was an error, his Honour’s attention not having been drawn to an amendment by which, at the time the offences were committed, the maximum penalty was five years. This error, of course, was in the appellant’s favour at the hearing below, but the Crown did not seek to disturb the sentences imposed. However, counsel for the appellant questioned whether the maximum penalty had indeed been effectively increased, while contending the sentences were excessive whether or not the relevant maximum was five years. It is therefore necessary for the Court to examine the steps by which, the Crown contends, the amendment was effected.

[7] The starting point is the consolidation of Tongan legislation that was made in 1967 in the Tongan language (the "Black Statutes"). In the version of The Criminal Offences Act there contained, the provision equivalent to s.124 (1) of the current version of the Act was s.114, which may be expressed in English as follows:

"If any person is proved to have indecently assaulted any woman he shall be imprisoned for a period of not more than two years."

That section was amended by The Criminal Offences (Amendment) Act 1990 in which The Criminal Offences Act, as amended, was referred to as "the Principal Act". Section 12 provided:

"Section 114 of the Principal Act is amended by deleting the word ‘two’ and substituting therefore ‘5’."

The well known "Red Statutes" bear the date 1988 and were printed in 1989 as the Revised Edition of the Laws of Tonga under the authority of The Laws Consolidation Act, 1988. However, the Proclamation made under s.7(1) that this revision had been approved by the King so as to have come into effect by s.8, and (as that section provided) "be without any question whatsoever in all Courts of Justice and for all other purposes whatsoever the law of the Kingdom in respect of the Constitution and all Acts, Ordinances and subsidiary legislation up to the effective day", and the Notice under s.4(1) (a) that the King in Council thereby appointed 31 December 1988 as "the effective day", were each delayed until 10 May 1991: see Tonga Government Gazette Extraordinary published 10 May 1991. A consequence of this delay in the bringing into operation of the revision of the laws of Tonga in the "Red Statutes" was that the authors of The Criminal Offences (Amendment) Act 1990 were compelled to refer to the sections of The Criminal Offences Act, not by their numbers as appearing in the revised version in the "Red Statutes" (which was not yet in force), but by their numbers as appearing in the earlier version in the "Black Statutes". Effect could then be given to the amendments, as amendments of the corresponding sections of the revised version, by virtue of The Laws Consolidation Act, s.11(1), which provides:

"Where in any enactment or in any document of whatever kind reference is made to any written law affected by or under the operation of this Act, the reference shall, unless the context otherwise requires, be deemed to be a reference to the corresponding written law in the Revised Edition and all cross-references in any such written law or document shall, where they are affected by or under the operation of this Act, be read and construed with such modifications as circumstances may require."

[8] It has been necessary to explain the legislative process in some detail, but the end result is clear: essentially the same offence (though contained in a differently numbered section, s.114) had already been amended (in 1990), so as to provide for a maximum sentence of five years, before the offence received its new section number (s.124(1)) in the revised version which came into force on 10 May 1991 as being the law at "the effective day", that is to say, 31 December 1988, and the amendment was preserved, when the revision did so come into force, by s.11(1) of The Laws Consolidation Act, which is set out at the beginning of the first volume of the "Red Statutes".

[9] In his sentencing decision, the judge pointed out that the offences must be seen as the deliberate and premeditated actions of a mature man, taking advantage of a young girl. That she was willing to participate in these actions was, of course, no justification in law, nor could it shield the offending conduct from the strong condemnation and abhorrence of the community which s.124(1) reflects. To deter this appellant, and to deter others, from conduct of this sort, and thus to protect young girls from predatory behaviour, are important objects of a sentence for such a crime.

[10] The judge considered that each of these offences was properly to be regarded as meriting a sentence of about 18 months, subject to the mitigating factors. Those factors led him to a reduced sentence for each offence of one year. They included:

(1) the plea of guilty, although this was not entered at the earliest opportunity, but only after a delay of some three years and when the trial was imminent (counsel for the appellant said the plea came after a change of counsel and upon advice that the age of the girl precluded the appellant from a defence of consent);
(2) the previous good record of the appellant as a man with no prior convictions;
(3) the appellant’s remorse and his accepted apology to his victim’s family;
(4) his avoidance of any subsequent offence and the support of a religious leader.

[11] The next question for his Honour was whether the sentences should be consecutive or concurrent. This question involves two issues: first, whether the offences were so closely connected that they should be regarded as both part of the one course of criminal activity; and secondly, whether in any event, the totality principle required the sentences to be made, wholly or partially, concurrent. As to the first issue, his Honour concluded that the substantial gap (from May to October) between these two offences compelled the finding that they were separate crimes for which, subject to the totality principle, cumulative punishment was appropriate.

[12] The totality principle was briefly referred to in Polutele v Rex [1995] Tonga LR 59 and Hokafonu v Rex (Court of Appeal, Burchett and Tompkins JJ, 25 July 2003). In the latter case (at para 52), it was said:

"[T]he court must have regard to the totality of the offending, particularly [emphasis added] where the offences are a series of related offences."

A more extended statement of the principle, with citation of a number of authorities, was made in the Australian case (in the Full Court of the Federal Court) McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555 at 563, where it was said:

"The principle of totality is discussed in some detail in D A Thomas, Principles of Sentencing (2nd ed, 1979) at pp 56-61 and in R G Fox and A Freiberg, Sentencing State and Federal Law in Victoria (1985), pp 372-373, 375, and was approved by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63, where a key passage from Thomas’s work was adopted in the judgment of the Court. According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved. The principle applies to the later of two courts, whether or not within the same jurisdiction, where the sentences are imposed by different judges: R v MacDonald (1990) 52 A Crim R 349 at 351-352. Any other approach may easily be exposed as wrong by a reductio ad absurdum. It could not be right, in a case involving 50 minor offences, each warranting a sentence of one year, to inflict as punishment a period of 50 years in gaol, just because consecutive sentences were required by the relevant principles of law, applied without modification.

When the court comes to apply the principle of totality, in a particular case where the prisoner has not previously been sent to gaol, the authorities (see Thomas, pp 59-60) support the view that the accumulation of sentences now to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment. If possible, justice should especially avoid placing such a person where, in Milton’s words, "hope [can] never come [t]hat comes to all" (Paradise Lost, 1:66-67). In a case of this kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed."

As the Court of Appeal insisted in R v Bocskei (1970) 54 Cr App R 519 at 521, "the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive."

[13] It is apparent that, in the present case, the sentencing judge was conscious of the relevant considerations, including the appellant’s position as a first offender. He took the course of accumulating the sentences, regarding the term of two years as appropriate to the total criminality involved in both offences. But he suspended for one year the final six months of that term upon the conditions set out at the commencement of these reasons. In doing so, he referred to the appellant’s previous good record and the likelihood of his rehabilitation, citing R v Misinale (Court of Appeal, 23 July 1997), the relevant passage in which may be found set out in R v Motulalo [2000] Tonga LR 311 at 313-314.

[14] Very few sentencing decisions in Tonga in recent years could be found by counsel to assist this Court as to the approach taken to a case of this kind. The closest example appeared to be Rex v Kaloni, an unreported decision of Ward CJ in which his Honour, on 1 October 2001, convicted the accused upon two counts of indecent assault, one relating to a girl aged nine and the other to her sister aged seven, and on 23 October 2001 imposed concurrent sentences of three years of imprisonment. In that case, the accused, aged in his 70s, was unrepresented and did not plead guilty. The conduct, in respect of each count, involved the licking of the girl’s vagina.

[15] Applying the rules of law governing the consideration by a court of appeal of the severity of a sentence, we are quite unable to conclude that the term of two years, particularly with the final six months suspended, was excessive so as to require appellate intervention. Accordingly, the appeal is dismissed.

Burchett J
Salmon J
Moore J