IN THE COURT OF APPEAL OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY

Appeal No 3/1992

BETWEEN

‘APIESA PULOKA
Appellant

AND

THE CROWN
Respondent

CORAM Roper J, Ryan J Morling J

HEARING 30th March 1992
JUDGMENT 30th March 1992

ORAL JUDGMENT OF THE COURT

This is a case that has given us the greatest concern. It is an appeal against sentence by a boy who was 15 years at the time of the offending. He pleaded guilty to two charges of unlawful carnal knowledge of a girl under the age of 12 years. There is no clear evidence how old the girl was, and the best we have is that according to the police summary, she was either 7 or 8 years, while the medical report gives her age as 9 when she was medically examined in February 1991. He also pleaded guilty to two charges of indecent assault, which we assume to be alternative charges to the unlawful carnal knowledge, and one charge of indecent exposure which related to a separate incident.

It occurred some two months after the more serious offending in November and December 1990. It was this latter offending which resulted in the Appellant's arrest. It appears that it was after the indecent exposure that the girl complained to her parents about the earlier offending. He was sentenced to life imprisonment on the two unlawful carnal knowledge charges, three months on each of the indecent assaults and one month on the charge of indecent exposure.

It is questionable whether any sentence should have been imposed on the indecent assault charges but that is by the way and has no practical effect at this stage. Although the Appellant did plead guilty, there are circumstances in the case which caused us considerable concern.

First, the indecent exposure which resulted in a complaint concerning the earlier offending occurred in February 1991, but the Appellant did not have his first appearance in court in Ha'apai on the carnal knowledge cases until November 1991. He was not represented by Counsel and on that day he pleaded guilty to all charges and was remanded to the Supreme Court at Nuku'alofa for sentence.

Secondly there was a further unexplained delay of three months before the sentencing on the 21st February 1992. At that hearing the sentencing Judge was dependent on the Police statement of facts, which is a very brief document, and says in part, “the Police have indicated that a medical report confirmed that penetration had occurred”. A medical report which was obtained of the 27th February 1991 is now available to us. It says in part, “there is the possibility that some penetration (penile or fingers) was attempted”. The sentencing Judge took a very stern view of the Appellant's offending describing it as “an abomination” which could only be met by a term of imprisonment and in the result he imposed the maximum penalty on the carnal knowledge charges. Some statistical material has been provided by both Counsel which shows, first, that charges of unlawful carnal knowledge rarely come before the court, there have only been about four of unlawful carnal knowledge or attempt since 1986; and secondly that sentences over the years have varied from three months to fifteen years. The latter information is of limited value because we have no details of the facts in each case and it is well recognised that the particular facts in carnal knowledge cases may result in a wider range of sentences than in probably any other class of criminal offending. At one end of the spectrum is the inquiring youth with the girl with whom he has a virtuous friendship and at the other end of spectrum is the parent or guardian, or one in a supervisory capacity such as a school teacher who deliberately sets out to sexually abuse a young child. The penalties appropriate to the two types of cases are very different indeed.

In the present case we are dealing with an unsophisticated boy of 15 at the time of the offending having no previous convictions and little education who pleaded guilty, possibly unwisely and certainly without legal advice, at the first opportunity. And we now have information from the Salvation Army that the Appellant returned to his home in Ha'apai from Nuku'alofa to give himself up.

There is no evidence before us of any physical harm to this young girl, and no evidence as to what affect the offending has had upon her. We cannot accept that the circumstances justify a sentence which would in affect destroy this boy's life.

Mr Williams for the Crown very fairly and properly submitted that the sentences could not be supported, but did not really go further than that. We have given this matter anxious consideration, both before and after hearing Counsel's submission.

We therefore allow the appeal and quash the two sentences of life imprisonment, and in lieu the Appellant is sentenced to three years imprisonment on each charge and we suspend such part of that sentence as the Appellant has yet to serve for a period of three years. The affect of that sentence is that the Appellant is entitled to an immediate release, and should he be convicted of an offence within three years for which he could be imprisoned he may be brought back to this court to serve the balance of his sentence. As for the sentence on the charge of indecent exposure the maximum sentence is by law a fine. The sentence of imprisonment on that charge is quashed and in lieu he is convicted and discharged.

We wish to express our appreciation to the Salvation Army for its interest and concern for this boy and the help it has given him. We would like to make an order that he remains within the church to receive counselling and support but we have no jurisdiction to make such an order. We sincerely hope that the Appellant himself and the church ensure that he remains a member of that church family.

Delivered by
Roper J