Sexual offences on minors “alarmingly prevalent” states Lord Chief Justice [1]
Monday, June 1, 2020 - 19:01. Updated on Tuesday, June 2, 2020 - 09:36.
Two 16-year-olds who pleaded guilty to carnal knowledge of a young girl under the age of 15 years and simple indecent assault received non-custodial sentences, at the Nuku'alofa Supreme Court on May 29.
The offences were committed last year. Both boys pleaded guilty to the offences.
The Court suppressed the complainant's identity and her evidence taken in the proceedings.
Lord Chief Justice Whitten in his sentencing remarks, said having regard to obvious aggravating and mitigating features, the relevant legislation and one comparable sentence, the Crown submitted that a non-custodial sentence was appropriate for both.
It was also submitted that a suspended sentence in whole or part was appropriate. No victim impact report was filed.
Young offenders
The Chief Justice said but for their youth and relative immaturity he would have been minded to impose prison sentences of 18-months and nine-months respectively with further consideration to be given to suspension of all or part of those terms.
“In the ordinary case, a custodial sentence would be warranted in order to reflect yhe Court's denunciation of this alarmingly prevalent type of offending, to protect young girls in society and effect adequate deterrence.
“However, as noted recently in Rex v Toutai'olepo [2020] TOSC 3, when it comes to sentencing of young offenders, the Court of Appeal in Rex v Tau'alupe [2018] TOCA 3 at [16] cautioned that:
"the sentencing of young offenders raises special considerations: see for example the discussion in R v Churchward [2011} NZCA 531 a [77}-[92}. An offender's youth may impinge on an assessment of their culpability. As Mr. Mo'ale said, prison for any period is known to carry an enhanced risk of trauma for young people. And, as this Court recognised in Mo'unga v R [1998} Tonga LR 154 young offenders have a greater capacity for rehabilitation."
The Chief Justice said that in addition, having regard to the low to moderate level and somewhat opportunistic nature of the offending for each of the respective counts, the defendants' youth, their cooperation with police and early guilty pleas (thereby obviating the victim having to give evidence at trial not to mention the savings to the Crown in time, cost and resources) previous good records and remorse, he considered it was appropriate to afford them a chance of rehabilitation by imposing non-custodial sentences.
Good behaviour bond
The Chief Justice then placed them on good behaviour bonds but on strict conditions.
This meant if they breach the conditions during the good behavior bond time period, they can be re-sentenced and given a harsher sentence.
One defendant convicted of carnal knowledge was placed on good behaviour for the next two-years and must carry out 60-hours communituy service .
While, the other is to be on good behaviour over the next 12-months and must carry out 40-hours of community service.
Other conditions included being placed on probation for the period of the recognizance; must report to the probation office within 48 hours during the period of the recognizance, abstain from alcohol, illicit drugs or other substances of abuse; and at the direction of their probation officer must complete courses on alcohol and drug awareness and life skills.