Rex v Kolo [2006] TOSC 25; CR 35-2004 (17 July 2006)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

NO CR 35/2004

REX

v

SOSEFO MALU TOKELAU KOLO

BEFORE THE HON CHIEF JUSTICE WEBSTER

SENTENCING DECISION

SOSEFO MALU TOKELAU KOLO, you have pleaded guilty to 2 counts of indecent assault of a girl in contravention of section 124(1) of the Criminal Offences Act. At that time she was aged 12 and I am not going to name her, so as to protect her identity.

Circumstances of offences

The circumstances of the first count were that in May 2003 the complainant, who was still 12 years old and was attending the Government Primary School at Ma'ufanga, went with a friend to your home in Ma’ufanga during lunch time. She had gone to your home on several occasions before that with a friend, when you gave the girls money. That is a classic example of what is known as grooming by a paedophile to win a child’s confidence, and then take advantage of her or him – as it turned out in this case.

On this day the complainant entered your house with her friend, then you called out to her from the bedroom for her to come over and get some money. She went to your bedroom, where you told her to take off her underwear and you then pulled out your erect penis. You got the complainant to touch you and then rubbed your penis outside her genitalia; and you also sucked her breasts. You then gave the complainant $5 and told her not to tell anyone what you and she had done; and she returned to her friend and they shared the $5.

The circumstances of the other count were that on 8 October 2003 the same girl, the complainant, again went to your home. This was the last day of the national examination for entrance to secondary schools, which the complainant had participated in. When the complainant got to your house, again you called for her to go into your bedroom, and then you took off your underwear, pulled out your penis and rubbed it on her genitalia. You did that twice that day. On one occasion you told her that you loved her and that whenever she needed anything she should come over.

The next day the complainant again went to your home, but a neighbour had noticed the complainant's regular visits, so the neighbour stopped her, questioned her and asked whether you had done anything to her, and she answered you had. The neighbour then took the complainant to the school, where she reported it to the staff. The foster parents of the complainant were then informed, and a complaint to the Police was made subsequently.

The complainant was later examined by Dr Makameone Taumoepeau, who concluded that there had been no penetration, but there were signs of regular touching outside the complainant's genitalia.

Under section 124(2) of the Criminal Offences Act, a girl under 16 cannot in law give any consent which would prevent an act being an indecent assault.

Punishment for indecent assault

The maximum sentence which the law provides for indecent assault is 2 years in prison. That may seem low to people, but that is the maximum decided on by the Legislative Assembly and the Court must base its punishment on that. What the Court has to do then is to decide on the punishment which is appropriate for the crimes which you committed. The punishment must always fit the facts of the crimes and the offender.

In your case you took advantage of a young girl, who was just 12. Although your Counsel has submitted in mitigation that she was mature for her age, which is correct, she was clearly still at Primary School, indeed on one of the occasions she was wearing her school uniform – ie the distinctive red uniform of Government Primary Schools, so it must have been obvious to you that she was still around 12. As I have said, the law specifically provides in the case of this offence that a girl under 16 cannot in law give consent to such acts – which is to protect young girls from themselves, as well as from men like you. The crimes were obviously deliberate and pre-meditated, particularly as you had groomed the girl in advance.

It has to be borne in mind that the maximum punishment for an indecent assault on a child under 12 is 5 years’ imprisonment; and that what you did in this case was only slightly, and not radically, different from that.

In this case there are aggravating circumstances, in that you are a man of mature years, being around 55 or 56 at the time, and you clearly took advantage of a young girl, even if she appeared to be a willing participant. A custodial sentence is therefore likely to be appropriate: R v Green & ors [1971] Crim L R 299.

In crimes as serious as this, a sentence which marks the public condemnation of your crimes is therefore unavoidable. Offences of this nature occur remarkably often in Tonga. The sentence must also include some element of deterrence, both of you and of other possible offenders. The main aim of the Court must be to protect society (cf, although in different circumstances, R v Blake [1961] 3 All ER 125,128 (CCA)), ie in this case to protect the children of Tonga from people who try to do things such as you have done. It is important in the public interest that the Courts should take real steps to deter indecent assaults on girls under 16 by people who can be described as perverts or paedophiles.

It is in your favour that you say you are remorseful and you have made an apology to your victim’s parents, and although that was not made in a proper formal Tongan manner, her parents accepted it. However I note from the probation report that the result of your crimes has been that the girl has had to quit school due to the family’s embarrassment, which in Tonga I am sure is very real, so beyond what you did physically to the girl, your actions have had a lasting bad effect on her. I hope you will think about that during your time in prison.

One point in your favour is that – at the very last minute, almost 3 years after the events and after numerous attempts to hold the trial – you have pleaded guilty and thus have spared your victim from having to give evidence in Court. But it is not correct that, as you are reported to have told the Probation Officer, you pleaded guilty at the first opportunity. Giving misleading information like that is unlikely to help your own reconciliation.

While it is clear that, despite your Counsel’s pleas in mitigation, a prison sentence is right in principle, sentences for indecent assault can range widely, depending on the circumstances, and I believe that the appropriate level for offences of this kind, involving indecent assaults by a mature man on a young girl, even with her apparent consent, has to be around the top end of the scale, as they were at the top end of the range of seriousness.

As a start, in general terms an appropriate sentence for each of these offences would be around 18 months and then the Court must see whether there are mitigating factors which might reduce that term. In this case I would discount that to 1 year for each count due to your plea of guilty.

I consider that these offences were not both just part of 1 crime, but because of the gap in time of 5 months, the 2 offences formed 2 quite separate crimes, so that it is appropriate for the 2 sentences on the 2 different counts to be consecutive to each other: see Halsbury’s Laws (4th Ed reissue) Vol 11(2) para 1201. That means that your total term of imprisonment on the 2 counts is 2 years. I believe that total is right for the overall gravity of your conduct on the totality principle: see Polutele v Rex [1995] Tonga LR 59 (CA).

While in my view these are such serious crimes that mitigating factors can only have a reduced effect, in mitigation I take into account all that Mr Edwards has put forward on your behalf, including the following mitigating factors:

You have, albeit on the eve of your eventual trial, pleaded guilty;

You have no previous convictions and a previous good record;

Your remorse and apology has been accepted by your victim’s family;

You have been in no further trouble since the offence;

The letter of support from Monsignor Foliaki.

But it cannot be the right approach in offences like these to say that it was to your credit that you went no further.

I have to say that the Probation Service Report is neither generally favourable nor unfavourable.

In crimes as serious as these your domestic circumstances are unlikely to be of great relevance, even though you care for your mother. Otherwise anyone with an elderly relative to care for could commit crimes with impunity.

The principles for passing a suspended sentence have been stated by the Court of Appeal in R v Misinale [1999] TOCA 12 (CA), and they are:

(i) Where the offender is young, has a previous good record, or has had a long period free of criminal activity.

(ii) Where the offender, is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.

(iii) Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender.

(iv) Where there has been cooperation with the authorities.

Only the first (partially) and the second apply in your case; and I have to say that I hope you do take the opportunity to rehabilitate yourself and avoid further offences, but I cannot be certain that you will do so.

It is a question of balancing an appropriate public sanction for your serious criminal behaviour against the possibility of your rehabilitation, but due to the circumstances it is certainly not appropriate to suspend the whole sentence and couple that with community service.

Taking all these factors into account, in the circumstances of this case on each count I shall pass a sentence of 1 year, the periods of imprisonment being consecutive and cumulative, a total of 2 years.

I THEREFORE SENTENCE YOU TO 2 YEARS IMPRISONMENT, with the final 6 months suspended for 1 year from your date of release, on the conditions:

a. that you are on probation for that year; and

2. during that year you keep away from, and have no contact with, the complainant.
   

A breach of the conditions of suspension of the sentence may result in the suspension being revoked and you having to serve the balance of the term of imprisonment. Do you understand that?

The suspended sentence is in particular conditional on you not being involved in any further trouble with the law and the Courts during the period of suspension of 1 year. If that happens and you are convicted of an offence punishable by imprisonment committed during the period of suspension, you will have to serve the balance of 6 months of your suspended sentence in addition to the punishment imposed for your subsequent offence. Do you understand that?

R M Webster MBE
Chief Justice

17 July 2006