Rex v Motulalo [2000] TOCA 9; CA 02 2000 (21 July 2000)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY

Cr. App. 2/2000
Case No. CR 307/99
BETWEEN

REX

Appellant
AND

MA’AKE MOTULALO

Respondent.

Coram:
Ward CJ, Tompkins J, Beaumont J

Counsel:
Tavita Havea for Appellant
Luki Veikoso for Respondent

Date of Hearing: 13 July 2000
Date of Judgment: 21 July 2000

JUDGMENT OF THE COURT

The respondent pleaded guilty to one charge of attempted carnal knowledge and one charge of indecent assault of a female child. On 1 February 2000 he was sentenced on the first count to two years imprisonment suspended for two years, and on the second count to 120 hours community service. The Crown has appealed against these sentences on the grounds that they are inadequate.

THE OFFENDING

The complainant, then aged nine, is the respondent's stepdaughter. At about 10am on 21st December, 1998, when the respondent and other members of their family were in their home, the respondent and complainant were alone in a room. The respondent told the complainant to have sex with him. The complainant refused. The respondent forced her on to a mattress, and undressed her. The complainant struggled. She ceased to do so when the respondent threatened to strike her with a piece of hose. The respondent having removed his shorts, stroked the complainant's vagina with his penis. He continued to tell the complainant to have sex with him, she continued to refuse. It was at this time that the respondent's wife, the complainant's mother, came home, causing the respondent to desist. The complainant told her mother what had occurred. The mother found the respondent naked under a sheet. The mother and the complainant reported these events to the police. When the respondent was arrested the following day, he confessed voluntarily to having committed the offences with which he was charged.

THE RESPONDENT

He is aged 37. At the time of the offending he was working on a contract basis earning approximately $100 a week. He was the breadwinner for the family. His wife, the complainants mother, described him as a hard-working husband who dedicated his life to his family.

His explanation for the offending was that his wife had being denying him sexual relations, and he felt jealous of the complainant because he considered she was being specially treated. The probation officer reported that the respondent appeared remorseful and really regretted what he did.

Following the offending the mother and the children including the complainant left the respondent. After a separation of about a year the mother and children, except for the complainant, returned to him. The complainant has been living with other relatives.

FACTORS RELEVANT TO SENTENCING

There are several aggravating features. The complainant was entitled to, and no doubt did, regard the respondent as her father, or equivalent to a father. She was entitled to put her trust in him. He abused that trust. He took advantage of his position to impose himself on her in an attempt to satisfy his sexual desire. The young age of the complainant made this conduct all the more culpable.

The attempt at carnal knowledge only failed to become carnal knowledge because of the timely and fortuitous arrival of the mother. A nine-year-old girl is normally incapable of giving informed consent to sexual connection. In any event, she was actively resisting his attempts to force himself on her. In effect, what the respondent did was equivalent to attempted rape.

A degree of violence was involved. The respondent forced the complainant onto the mattress and threatened to strike her with the hose if she did not cease struggling.

There are some mitigating factors. The respondent, according to the mother, was otherwise a good father and supporter of the family. He was the breadwinner. According to the probation officer, he was remorseful, although that is not unusual with an offender who is facing sentence. He admitted the offending and pleaded guilty at an early stage, thus avoiding the need for the complainant to give evidence of what he was trying to do to her.

THE SUSPENSION OF THE SENTENCE

In R v Misinale CA 779/97, judgment 23 July 1997, also a Crown appeal against the suspension of a sentence, the Court had this to say on the approach to be adopted when considering whether a sentence of imprisonment should be suspended:

"In Mo'unga v The Crown CA 15/97, judgment 7 August 1998, this court commented on the principles to be applied in suspending a sentence at page 4 of the unreported judgment:

"In New Zealand, where there also are no criteria in the relevant statutory provisions, the Court of Appeal, in R v Petersen [1994] 2 NZLR 533, in a judgment delivered by Eichelbaum CJ, said that the suspended sentence is intended to have a strong deterrent effect, so that if the offender is incapable of responding to a deterrent, it should not be imposed. Apart from that, the Court suggested a number of situations, intended to be neither exhaustive nor comprehensive, in which the suspension of the sentence may be appropriate:

(i) Where the offender is young, has a previous good record, or has had a long period free of criminal activity.

(ii) Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.

(iii) Where. despite the gravity of the offence, there is some diminution of culpability through lack of premeditation. the presence of provocation. or coercion by a co-offender.

(iv) Where there has been cooperation with the authorities.

We see no reason why this approach should not be followed in Tonga."

These, as the reference makes clear, are not the only factors. Also relevant may be the seriousness of the offending, the need for an effective deterrence, the effect on the complainant, and the personal circumstances of the offender or those dependent on him or her. There may well be others. But although these are factors that may be taken into account in considering whether, and if so for how long to suspend part or all of a sentence, the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender. If it is not, or if for any reason rehabilitation is not relevant to the sentence to be imposed, suspension of any part of the sentence is unlikely to be appropriate.

Later in that judgment the Court observed that the fact that the offender was the breadwinner for his family, was not, and is rarely likely ever to be, on its own a proper reason for suspending a sentence.

CONCLUSION

The only reason the Judge gave for suspending the sentence was that the respondent's wife appeared before him apparently asking that he not be sent to prison. The Judge also noted that the respondent was the breadwinner and that if he sent the respondent to prison, not only will the family be broken up, as well there will be no money for the family.

The approach the Judge adopted takes no account of the devastating effect that these events, and the sentence the Judge imposed, is likely to have had on the complainant. She was forced to submit to her stepfather attempting to have sexual intercourse with her, and to suffer the significant emotional trauma that is bound to result from such conduct that is likely to affect her for a long time to come. By suspending the sentence allowing the respondent to return to his fancily, the complainant was herself effectively banished from her family. Separated from her mother and siblings, she has had to live with relatives. She therefore has to suffer in both respects, while the respondent is allowed to go free and virtually unpunished.

With offending of this kind, the wife and mother is placed in an extremely difficult situation. Forced to elect between her husband and her daughter, she frequently supports the husband, but only because she is concerned for the financial and possibly social consequences of a sentence of imprisonment on other members of her family. We doubt that much weight should be placed on the representations made by the respondent's wife. We accept that, if the respondent goes to prison, the family will suffer. That unfortunately is an all too frequent consequence of criminal offending.

When regard is had to these factors, as well as the aggravating and mitigating features to which we have referred, we are satisfied that there can be no justification for suspending any part of the relatively short sentence of imprisonment imposed.

The sentence of two years imprisonment is itself a lenient punishment for offending as serious as that which occurred in this case. Counsel for the Crown did not seek to have the term of imprisonment increased. Had a longer term of imprisonment been imposed, as could well have been the case, there may have been grounds, in the interests of rehabilitation and of the family, to suspend a relatively short part of that sentence.

THE RESULT

The application for leave to appeal is granted. The suspension of the term of imprisonment imposed in respect of count one is quashed. The sentence of community service imposed in respect of count two is also quashed. In lieu thereof, on that count, which was in the nature of an alternative count. the respondent is convicted and discharged.

To that extent the appeal is allowed.

NUKU’ALOFA: 21 JULY 2000

Ward CJ,
Tompkins J,
Beaumont J.