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Regina v Teokila [2008] TVHC 2; Criminal Case 1 of 2008 (22 May 2008)

IN THE HIGH COURT OF TUVALU
AT FUNAUTI.
Criminal Jurisdiction

Crim case no. 1/08

Between:

Regina

v

Tima Teokila
Defendant

BEFORE THE CHIEF JUSTICE

S Kofe for prosecution
J Grover for accused

Hearing: 21 May 2008
Sentence: 22 May 2008

Sentence

The accused has pleaded guilty to a single count of defilement contrary to section 134 of the Penal Code.

The accused is 21 years old, a second cousin of the complainant’s father and well known to the family. The victim is a 6 years old girl.

The offence was committed when the accused was very drunk and there is no doubt he recalls little of the incident. It is equally clear that he is extremely remorseful about the whole incident and has made a number of eloquent statements of his shame and his wish to "turn the clock back".

The accused had been drinking sour toddy for some hours before he took the child to the place where the incident occurred. He tells the court through his counsel that he has a memory of ‘coming to’ to find he was on top of the girl and that her condition convinced him that he had raped her. He tried to carry her to the road but was too drunk. He recalls little else.

That this was a forcible assault is clear from the evidence and left the little girl with a number of nasty injuries to her face and head. She had bruising to the forehead, a cut beneath the right eye and a bad black eye. She was bleeding from both ears, had lacerations and scratches to her left cheek and bruises on her neck.

The sexual intercourse had left her with three tears to the posterior aspect of her vagina; one on each side extending obliquely to the area of her buttock and one which tore her from the vagina through to her anus.

Following the attack the accused was arrested by the police. Their conduct as described by the accused was reprehensible and included allegations of a willingness to stand aside in order to allow members of the public to abuse, threaten and assault the accused as he was handcuffed to part of the radio tower. As a result he received injuries. Such treatment is inexcusable and I shall reduce the penalty in consequence.

The accused has filed a lengthy affidavit in which he describes his early life and the circumstances leading up to this offence. I have taken them into careful account. I also accept that he has, from the very beginning, never tried to deny his involvement or his realisation of the seriousness of what he has done.

This case could have been charged as rape but, in the case of such a young girl, the offence is sentenced on the same basis. Both offences carry a maximum penalty of life imprisonment and in both the effect on the victim is the principal consideration for the court.

I am conscious of the genuine contrition and remorse of the accused and I also accept that this conduct was totally out of character. I have no doubt he will never do such a thing again and I believe that, if allowed his liberty, he will correct his life. Unfortunately, those considerations are subordinate to the need to protect young children from this type of offence. That is the primary duty of the courts and weighs heavily against the accused’s mitigation.

There can be no justification for the treatment of the accused by the public on Niutao but, if it occurred, it shows the degree of disgust and abhorrence in which society holds this conduct.

The offence is aggravated by the young age of the victim, the violence which was clearly inflicted before or during the attack and the potentially very serious injury to the vagina region. There is no way of knowing the long term psychological effect of such an incident and I cannot take them into account beyond the fact that this accused’s actions showed a total disregard of any such possible consequences.

Whilst the fact he was so drunk takes away any premeditation, any person who drinks in the way this accused had done that day must take the full consequences of his loss of control. The court hears of too many cases where young men in Tuvalu have drunk to excess and committed offences. Anyone doing so must realise he is likely to commit offences while drunk and I regard that in itself as a serious aggravating circumstance.

In his favour, I accept, as I have said, his clear and genuine remorse. He has pleaded guilty which reduces the sentence in all cases especially in sexual offences where such a plea avoids the need to make the victim relive the experience in the witness box. However, the extent of such allowance must be measured against the likelihood of conviction on the evidence to be called. In this case, I have no doubt he could not have contested this case successfully but I accept his decision to admit the offence and take full responsibility for it was made before he had an opportunity to assess the chances fo avoiding conviction.

He is a young man with no previous convictions and was on the threshold of a profitable and satisfying career. I also allow for the fact that he is likely to be shunned by his community for many years and may well have to live a very isolated and lonely life.

From a starting point of five years I consider the aggravating factors outweigh the mitigation to the extent that the minimum sentence I can properly pass is one of six years imprisonment. However, I allow for the time already spent in custody and so the order is that he shall be imprisoned for five and a half years from today.

Before leaving the case, I also direct that a copy of this sentencing judgment and the witness statements, including the affidavit of the accused sworn on 20 May 2008, be sent to the Commissioner of Police with a direction that he investigate the allegations of the manner in which this man was detained in Niutao and of any failure by the police to protect a man in their custody. I would ask that the report of any such investigation is copied to me.

Dated: 22nd day of May 2008

Hon. Gordon Ward
CHIEF JUSTICE