Rex v Kolo [2012] TOSC 34; CR 52 of 2012 (2 August 2012)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CR 52 OF 2012

REX

V

SOSEFO MALU KOLO

BEFORE THE HON. JUSTICE CATO

The accused Sosefo Malu Kolo appears before me on the following charges upon which he was convicted following a trial before me by Judge alone on the 22nd June 2012;

1. Indecent assault on a child contrary to section 125(1) of the Criminal Offences Act( Cap 18);
   
2. Carnal knowledge of a child under the age of 12 contrary to section 121 of the Criminal Offences Act (cap 18)
   

At trial, I had discharged him on two counts of indecent assault and one count of carnal knowledge. The count upon which I had convicted him was as the evidence unfolded in the nature of a specimen count because during the period alleged October 2011, there had been according to the complainant several incidents where the accused had taken her to a remote area at Sopu and had carnal knowledge of her.

At the time of the indecent assault the complainant was aged 9 years of age and 10 when the later acts of intercourse took place.

The indecent assault involved an act of kissing her and licking her vagina. The complainant had given evidence of going with the prisoner whom she knew after school to the bushes around the Ma'ufanga school. He told her to take down her pants and she refused so he took them off. He then proceeded to kiss and lick her vagina. He said she felt afraid and felt pain. After that he gave her some biscuits and she went home.

She said in fact other similar acts of this kind occurred in this period but the Crown had charged the accused with acts of this kind in a much later period. She denied the events occurred in the later period but in the early period. I did not permit the Crown to amend the indictment to reflect the later incidents for reasons I gave in my earlier judgment.

I had allowed an amendment of count one however so that the convicted offending of indecent assault occurred in August 2010 because I considered it in order and in the interests of justice to do so.

The evidence did not reveal any further sexual activity between the two until October 2011. Over that time the accused approached the complainant who by then was aged on several occasions at various locations in the Ma'ufanga area where both he and the complainant's family lived, and took her in a car to a remote area of Sopu where he told her to remove her clothing and then had intercourse with her.

She said on the first occasion that he would shoot her if she told her parents and she said he produced a gun. She also said the first occasion arose where she and a friend had been close to a Chinese shop. The accused had dropped some money down and when her friend approached to pick it up, he said that was for the complainant. After that she was taken to Sopu where intercourse took place. She noticed blood coming from her vaginal are after intercourse had taken place. It was painful. Both she and her mother confirmed she was sore and her mother administered to her that night.

On about four occasions offending of this kind occurred at Sopu in that month with short intervals in between. The complainant said she was too scared to tell her mother. Eventually, when the school noted the child's absences her teacher approached her about them, and she essentially informed the teacher she had been with the prisoner and he had sexually interfered with her. She was then taken to the Police station where complaint was made and shortly after the prisoner was arrested.

She said in evidence that she knew the prisoner. The family would visit relatives of the prisoner who lived nearby the prisoner and watch television. On occasions, the prisoner was there. I do not however regard this as a case where it could be said there was any relationship of a trust kind between the prisoner and the complainant.

That said I was concerned at the hearing as to the unexplained absences of the complainant from school. They went well beyond any charged occasion with the prisoner. She volunteered at trial and I accept that this was the case that she would go to his home and leave school for periods although she did not claim that in this period any sexual activity occurred. The point is that she met the accused regularly it seems in this period.

On each of the occasions, when sexual activity took place the accused gave her small amounts of money to buy food or drink with. He would take her back to Ma'ufanga after sexual activity had taken place.

Essentially at trial I accepted the complainant's evidence and rejected the prisoner's account that no sexual activity had taken place. I accepted that some kind of gun had been produced and that the complainant understandably as a girl of ten was very frightened of the prisoner and for that reason had not told her mother what had happened. The complainant impressed me as a retiring girl who was truthful, and I believed her account.

There was also evidence that a medical examination revealed she was not a virgin.

The law

I turn to the offence of carnal knowledge of a child of 12 under section 121 of the Criminal Offences Act (cap 18). That carries a maximum sentence of life imprisonment.

Under the Tonga Criminal Offences Act, the offence of rape carries a maximum sentence of 15 years. The starting point for rape was said by the Court of Appeal in Fa'aoso v R [1996] Tonga LR 42 to be five years with the maximum reserved for the worst cases. The starting point may be increased by aggravating factors such as in that case associated violence or reduced by mitigating factors such as early guilty pleas, contrition, and the like. In 'Aisea v R 27th April 2012, the Court of Appeal recently referred again to Fa'aoso in reversing a decision of the sentencing Judge to impose a starting point of 13 years for rape in Tonga affirming the starting point in Fa'aoso of five years.

There do not appear to be many reported cases on carnal knowledge of a child. It is plain that the legislature in imposing a maximum sentence of life took the view that children under the age of 12 require special protection and for that reason the maximum sentence should be greater than the maximum sentence for rape. I accordingly approach this case by fixing a starting point which in my view is consistent with the legislative intent and appropriately and adequately reflects the seriousness of carnal knowledge of a child under the age of 12.

There are no precedents which fix a starting point for carnal knowledge cases, and in the absence of such guidance I fix a starting point of 8 years. That bears a proportionate comparison with rape cases and at the same time emphasizes the relevant sentencing principles being the protection of children, deterrence and indeed denunciation of offending of this kind. In the absence of authoritative guidance of the Court of Appeal, I do not fix a higher starting point than this. I acknowledge that in recent years New Zealand has for example fixed far higher sentences for sexual crimes involving children and these are set out in R v AM [2012] NZCA 114, but as the Court of Appeal has stated in 'Aisea sexual offending and particularly offences involving intercourse involve a consideration of cases and levels of sentencing which are specific and incidental to legislative reform. In my view a starting point of 8 years is an appropriate starting point in Tonga.

Aggravating factors

In this case, I accepted that there was a serious level of coercion and duress with the victim being very frightened at the threat and production of a gun, and that the offending took place on a number of occasions in October, 2011.

The offender was aged 63 and his behaviour was predatory. The complainant was aged only 10 and appeared to me as I said a very retiring girl. There was a very large age disparity. Sometimes, in cases of this kind, the relative ages when this is not very great will have a mitigating effect. I take the view that the age disparity is an aggravating feature.

This activity will no doubt affect the victim seriously perhaps indefinitely although there is some evidence that she is continuing on well with her schooling and has made progress since returning from a centre for abused children. I express the view that I hope her progress continues.

Further, the prisoner was not a first offender. In 2006 he was convicted of 2 counts of indecent assault on girls and in circumstances not dissimilar to these after guilty pleas. On that occasion he was treated leniently by the Court to two years imprisonment with six months suspended.

With this experience he chose to wilfully disregard the law again, in a way which requires a further denunciation by this Court, and marking of his recidivist and predatory character and action. The fact that he chose to offend sexually with children on a second occasion suggests he is a prisoner from whom society in any event merits a lengthy sentence of imprisonment in order to protect children from his advances. Notwithstanding his advancing years, he is a danger to young girls.

In each case, he effectively bribed the child with the payment of small amount of money for the abuse. His actions for me were both cynical and manipulative.

I consider that the starting point is aggravated in this case by four years making a total overall sentence of 12 years.

Had it not been for the fact that he offended against girls in recent years, I might have been minded to have sentenced him to 11 years imprisonment.

In my view the overall end sentence is in keeping with R v Hu'akau [2008] TOSC 5 where the prisoner was sentenced after a guilty plea to eight years for carnal knowledge of a child. There, the Chief Justice indicated that had it not been for the guilty plea he would have imposed a sentence of between 10 and 11 years. Although that case suggests a different approach to sentence rather than the approach I have adopted, the overall result is not dissimilar. I am grateful to the Crown for its helpful sentencing submissions.

I consider this is the least restrictive prison sentence I can impose – yet one that will truly represent and must reflect the predatory and serious nature of the prisoner's offending. A condign sentence is called for to not only to punish the prisoner but to emphasise that this Court will protect children from this kind of offending. It will also serve as a lesson to others not to engage in this kind of activity with children or serious consequences will follow.

Mitigation

I have now to consider any mitigating matters; however, I see nothing that would cause me to reduce the head sentence of 12 years. The prisoner is a mature man of advanced years. There is however a serious disparity between he and the child which in itself could be said to be an aggravating factor. The probation report added nothing which would alter my view.

He said in evidence that he was a man of some wealth and was a significant landowner. I said at the conclusion of the trial that I would welcome some initiative from him, with a view to financial compensation for the victim, but nothing has been forthcoming.

I accordingly see no reason to reduce the sentence which I impose in relation to the conviction for carnal knowledge of 12 years imprisonment.

I see no reason either to suspend any part of this, and I would be acting other than in accordance with principle to do so. Sentences of imprisonment should not lightly be suspended in this area of offending unless there are good rehabilitative prospects for doing so which do not in my view exist here. The public interest in protecting children is paramount in offending of this kind. Having said this, I may have been inclined to have suspended some part of the sentence had some reasonable compensation been made available to the complainant.

Finally I turn to the indecent assault conviction. The circumstances of removing clothes, kissing and licking the vagina are very serious acts on a child of this age and should in my view be reflected by a term of imprisonment of four years. I order however that this period be served concurrently with the sentence imposed of 12 years for carnal knowledge.

Hence the overall period of imprisonment is 12 years to commence from the date when the prisoner was first taken into custody.

I also wish to record that in view of this man's age prison authorities should ensure that he is given protection from harm or reprisals should the need arise.

DATED: 2 AUGUST 2012

JUDGE