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11 November 2022

Bid to increase rape sentence unsuccessful

Tuesday 29 November 2022 | Written by Matthew Littlewood | Published in Court, Crime, National


Bid to increase rape sentence unsuccessful

A man who committed several sexual offences against his then-14-year-old niece will remain imprisoned for nine years, after the Crown lost its appeal to increase his sentence to 11 years.

Clarke-In-Charge Tou was convicted on two charges of rape, three of indecent assault on a girl between 12 and 16 years and three of performing an indecent act on a girl between 12 and 16 years.

Chief Justice Sir Hugh Williams sentenced Tou to a total of nine years’ imprisonment.

At the Court of Appeal hearing on October 31, the Crown submitted a sentence of 11 and a half years would be more appropriate, while defence counsel Norman George asked for the sentence to be dropped to seven and a half years.

Justices Sir Raynor Asher, Sir Douglas White and Sir Robert Fisher oversaw the appeals hearing. Their decision was released to Cook Islands News on Monday. They decided to keep the sentence at nine years.

The Judges noted on “a prosecutor’s appeal a sentence will normally be increased only where it is manifestly inadequate or contrary to principle”.

“Any increase should take the new sentence to only the lower end of the available range. Although we would have been inclined to impose a sentence of 10 years, we do not consider that nine years was outside the range available to the Chief Justice. Accordingly, his sentence should stand.”

The Judges considered the aggravating features to be the victim’s age of 14 and 15 years respectively at the time of the offences, the gross breach of trust given the victim’s relative isolation in Rarotonga, the frequency and persistence of the respondent’s sexual offending over four months, and the likely long-term harm to the victim.

There were no mitigating factors to consider in sentencing.

“The victim impact report showed the consequences familiar in cases of this kind,” the Judges say.

“Despite counselling, the victim remained fearful for her safety, was unable to concentrate on school work, felt unsafe with older men…The probation officer considered that the respondent’s actions have left her traumatised for the rest of her life.”

During the appeals hearing, George submitted that the defendant was sexually active and the victim impact statement was a “stunningly breath-taking narrative of both reality and imagination on her part”.

Crown lawyer Jamie Crawford submitted that George’s submissions were not only irrelevant but an attempt to slander the victim. The Judges agreed with Crawford.

“If any of Mr George’s points had been proper and relevant to sentence they ought to have been raised in the Court below prior to sentencing. But none would have qualified there any more than here,” the Judges say.

“Modern understanding of relevance and irrelevance in a rape trial was expressly adopted by Parliament 35 years ago. And on a sentence appeal it is pointless to raise matters designed to cast doubt on a jury’s verdict. These submissions should not have been filed.”

During the appeals hearing, both the Crown and George agreed that the four rape bands established in New Zealand should be adopted in the Cook Islands after downward adjustment.

The maximum sentence for rape in the Cook Islands is 14 years; in New Zealand it is 20 years.

“In applying these guidelines two further considerations should be borne in mind. First, valuable guidance is to be found in the many actual examples provided by the New Zealand Court of Appeal to illustrate the way the bands work in practice,” the Judges say.

“The second is that sentencing can never be a mechanical exercise. So long as appropriate regard is paid to the bands involved, a discretion must remain with the sentencing Judge to act on factors unique to the particular case.”