Magistrate to Chief Justice: I was right in child sex case

Make text smaller Make text larger

A Magistrate failed in an “unprecedented” bid to justify his decision to spare a child molester from jail.

Khamisi Tokunbo wanted a lawyer to represent him during the appeal of Joshua Crockwell, who tried to get a 12-year-old to give oral sex.

Chief Justice Ian Kawaley rejected his request, which would have been a “first” in the legal world if granted. Magistrates have never been allowed to participate in Supreme Court appeals of their own decisions in that fashion before.

Mr Tokunbo controversially handed Crockwell a 15-month sentence, suspended for two years, in May.

Yesterday, he alleged that prosecutors are trying to appeal for a tougher sentence based on arguments “at great variance with what actually transpired” during the case.

The Magistrate wanted to be listed as “an interested party” to the appeal so his lawyer, Larry Mussenden could argue “that the sentence imposed was the correct sentence in all the circumstances”.

The punishment Mr Tokunbo handed to Crockwell after finding him guilty caused a storm of protest, due to his remarks during the hearing.

He commented that it was not a case where the defendant, who was 20 at the time, “preyed” upon the victim. He said it seemed there was a “mutual attraction” between the pair, and the victim — who cannot be identified — needed to be “protected from herself”.

His remarks prompted the Coalition for the Protection of Children to brand the handling of the case as being like something from “the dark ages”.

The Progressive Labour Party, One Bermuda Alliance and Women’s Resource Centre also expressed concerns, and an online petition was launched calling for Mr Tokunbo to be fired.

Crockwell was a firefighter at the time of the case, but is no longer employed with the fire service.

In a report considered by Mr Justice Kawaley yesterday, Mr Tokunbo noted that prosecutor Tawana Tannock made submissions during the sentencing from a document compiled by another prosecutor, Susan Mulligan, who handled the trial.

He complained that he had not seen this document in advance and it contained “emotive, sensitive factual assertions” that were not part of his verdict against Crockwell.

He took issue with assertions that Crockwell misled the young girl about his age and communicated with her via text messages “for a sexual purpose”.

He complained that Ms Tannock also “implied that the defendant preyed on/lured the young girl, and the community needed to be protected from him”.

The Magistrate said the remarks he made about the defendant not preying on the girl, and her needing to be protected from herself, were an effort to correct inaccurate “factual assertions” made by Ms Tannock.

Mr Tokunbo further complained that Ms Tannock produced a “victim impact statement” from the prosecutor at the last minute, when she had a legal duty to hand it to him and the defence lawyer in advance.

Mr Tokunbo’s refusal to take the statement into account in reaching his sentencing decision invoked the ire of the victim’s family and child welfare campaigners, and forms part of the prosecution’s appeal against the sentence.

The Magistrate went on to state that the media did not cover the trial and there was “no public knowledge of or interest in the case” during the trial stage.

He complained that on the day of the sentencing, “in less than 45 minutes, the prosecution’s written submission, containing a summary of facts, certain emotive and unfounded assertions, which was read aloud to the court in the presence of reporters, drew interest and formed the factual basis of the case for the media and general public’s knowledge of the entire trial”.

Mr Mussenden argued that Mr Tokunbo should be able to go a step further than simply filing a report to the Chief Justice, and should be a represented in person during the appeal.

Prosecutor Ms Mulligan opposed the bid, which Crockwell’s lawyer Elizabeth Christopher described as “ill-conceived”.

The Chief Justice noted that Mr Mussenden was unable to produce any evidence to show such a thing had been done “anywhere in the world” before.

He commented: “In legal terms, every judge who has a decision which is subject to appeal would love to get into the appellant court”.

But, he said, Mr Mussenden failed to show “why an earth-shattering precedent should be set” in the Crockwell case.

The appeal by the prosecution against the sentence — together with an appeal by Crockwell against his conviction — are due to proceed today.

Make text smaller Make text larger

Take Our Poll