Maamaloa v R [2023] TOCA 17; AC 4 of 2023 (5 October 2023)

IN THE COURT OF APPEAL
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

AC 4 of 2023
[CR 137 of 2022]

BETWEEN:

SIOSAIA MAAMALOA
FINE MAAMALOA
Appellants

AND

REX
Respondent

JUDGMENT OF THE COURT

Court: Harrison J
Heath J
Dalton J

Appearances: Ms A. Kafoa for the Appellant
Ms E. Lui for the Respondent

Hearing: 26 September 2023
Judgment: 5 October 2023

[1] The appellants are husband and wife. They both appeal against sentences imposed after a trial in which they were found guilty of very serious sexual offending. The male appellant, Sosaia Maamaloa, was found guilty by Nui J siting alone of 2 counts of rape and 1 count of sodomy (s 118(1)(a) and s 136 of the Criminal Offences Act). As well, he was found guilty on 4 counts of serious indecent assault (s 124(1) and (3) of the Criminal Offences Act). Lastly, he was found guilty of abetment to serious indecent assault committed by his wife (s 8(a) and s 124(1) and (3) of the Criminal Offences Act).
[2] The appellant Fine Maamaloa was found guilty of abetment to rape (s 8(a) and s 118(a) of the Criminal Offences Act) and 3 counts of serious indecent assault (s 124(1) and (3) of the Criminal offences Act). As well, she was found guilty of abetting serious indecent assault, (s 8(a) and s 124(1) and (3) of the Criminal Offences Act). It can be seen that the appellant Fine Maamaloa was only charged with one count of abetting rape, and was charged with fewer offences that her husband, and in particular she was not charged with abetting the count of sodomy.

Facts of the offending

[3] The appellants’ defence at trial was that the complainant consented to the sexual activity which was the subject of the charges except for the sodomy charge which they denied occurred. Both gave evidence in their own defence. In a comprehensive ruling, the Judge found all the charges were proved. The appellants did not appeal against their convictions.
[4] The offending in this case was very serious. The complainant had been drinking heavily with her friend all through the evening and night. At about 11pm the complainant and her friend went to another drinking party where the appellants were also drinking. The complainant and her friend did not know the appellants. They all drank until about 5:00am in the morning. Then the party broke up. The appellants took the complainant and her friend in their car. They dropped the complainant’s friend at his house, but they took the complainant to another house which was quite remote. The complainant was very drunk indeed and for this reason she was vulnerable. She said that she could not remember anything between leaving the drinking party and waking up the next day at the remote house where the appellants had taken her.
[5] The complainant woke up and found that she was naked on a bed, and that the appellants were also naked on the bed. The appellants were having sexual intercourse. Once she woke up, they began indecently assaulting her. This included forcing her to have oral sex with the male appellant. When this finished the male appellant put his penis into her vagina and had sexual intercourse with her.
[6] After this first rape, the appellants took the complainant to another bedroom and they all lay on the bed together. After a while the male appellant again began indecently assaulting the complainant. Again she was made to have oral sex with him and then he again put his penis into her vagina and had sexual intercourse with her.
[7] The female appellant was present during all this time. When the complainant tried to resist the male appellant, the female appellant tried to calm the complainant. Then, after the second episode, the female appellant forced the complainant to perform oral sex on her. While she was doing this, the male appellant committed sodomy on her. She screamed in pain, and he desisted. After that they all lay on the bed together.
[8] After some time, the female appellant told the husband to go out to get food and he left to do so. As he was leaving, his wife called out to him to lock the door.
[9] When the complainant heard the female appellant tell her husband to lock the door, she realised that it would be hard for her to escape, and she was afraid for her life. After the male appellant returned, the complainant asked to visit the toilet and she was able to escape from the house, although with some difficulties. She went to the verandah and found that there were security screens and locked doors preventing her leaving. In the end she jumped off the verandah, a fall of about 12 feet. She then ran down the road for distance of about 500 meters. She had no clothes on as she ran. She saw a house which had some clothes hanging on a washing line. She climbed over a corrugated iron fence about 4 feet high, and took a dress from the washing line. She then went into the house and asked its occupants to hide her and to help her. They did.
[10] The appellants tried to stop her leaving. They yelled after her when they realized she had jumped off the verandah, and they went looking for her after she had left. The sentencing Judge found that there was no reason to go looking for her if she had left of her own free will, and he did not believe that the appellants were looking for the complainant because they had good intentions motivated by concern for her.
[11] The Judge below correctly inferred that the complainant’s fear was apparent from her running naked in the street, and from her jumping off the veranda and climbing over the corrugated iron fence.

The Sentences below

[12] At the sentencing hearing, the Prosecutor submitted that the joint and pre-meditated nature of this offending; taking advantage of the vulnerable complainant who was intoxicated; detaining the complainant so that she feared for her life, and displaying no remorse whatsoever for the offending, were aggravating features. We agree.
[13] The Prosecutor submitted that the only mitigating factor in favour of the appellants was that they had no previous convictions. Again, we agree. At the time of the offending the male appellant was 43 years old and the female appellant was 35 years old. They had 8 children. They were both heavy drinkers. Even after the trial, the appellants told the Probation officer who reported to the Court that they were not guilty and that the complainant consented to all the activity which went on.
[14] The Prosecutor submitted that a starting point of 9 to 10 years was necessary in order to reflect the gravity of the offending in this matter. Counsel for the appellants asked the sentencing Judge to use a starting point of 5 years for the male appellant and asked for wholly suspended sentences for the female appellant, because otherwise the children would have both parents in jail. While parental responsibilities can sometimes be regarded as a reason for a more lenient sentence, they cannot count for much in a case like this where the serious criminality overwhelms such considerations.
[15] The sentencing Judge made a finding of fact that the female appellant was “the one in control” of the offending. He explained the factual basis for that finding, and it is not for this Court to go behind that finding: it was the sentencing Judge who saw and heard the appellants during the trial and sentences. It seems likely that this factual finding was the reason that the sentencing Judge imposed sentences on both appellants which were very similar, even though the male appellant was charged with numerically more offences.
[16] In sentencing the male appellant, the sentencing Judge imposed sentences of 14 years imprisonment on both of the rapes. These sentences were concurrent. The sodomy sentence was 3 years, and was expressed to be consecutive (cumulative) on the rape sentences. The sentencing Judge imposed concurrent sentences for the other offences which the male appellant committed. He imposed 3 years concurrent sentences in respect of each of the 4 counts of serious indecent assault and a 3 year concurrent sentence in respect of abetting the serious indecent assault committed by his wife. The sentencing Judge concluded, “So that the total number of years you will serve is 17 years, less such remissions as you shall earn for good behaviour whilst serving them. I do not consider that any part of those sentences should be suspended and I make no order for suspension of your sentences.”
[17] The sentencing Judge imposed a sentence of 14 years on the female appellant for her abetment of the rape. He imposed 1 year concurrent sentences on three counts of serious indecent assault, and imposed a sentence of 1 year 6 months on another.^[1] That last sentence (1 year and 6 months) was to be served consecutively with the sentence on the rape count. The sentencing Judge said, “In total your will serve an imprisonment sentence of 15 years 6 months, less any remissions you may earn for good behaviour whilst serving them. I do not consider that any part of your sentences be suspended and I make no order for suspension of your sentence.”

Sentences manifestly excessive

[18] The appeals were on the basis that the sentencing Judge misapplied some comparable cases; should have made the sentences concurrent rather than consecutive, and in all the circumstances imposed sentences which are manifestly excessive. Responsibly, the Crown filed a “notice of no opposition to appeal against sentence” in which it conceded that the approach taken by the sentencing Judge was inconsistent with the approach taken in sentences imposed for similar offending; that the sentences ought to have been concurrent, not consecutive, and that some suspension of the sentences was appropriate.
[19] There is no doubt at all that this offending was very serious for the reasons which were identified by the Prosecution at the sentencing hearing: the offending was carried out in a premeditated way by the appellants acting jointly; it involved a detention of the complainant which naturally caused her to be very fearful, and involved a prolonged series of sexual assaults, rather than just one rape. The sodomy offending caused the complainant severe pain. The criminality of both the appellants was high. The complainant continues to suffer the psychological effects. Nevertheless, we think that the sentences which were imposed were manifestly excessive because, in each case the starting point adopted by the sentencing judge was too high, and there was an element of partial cumulation which made the end sentences too high having regard to totality considerations. Because we find the sentences manifestly excessive we go on to resentence.
[20] We do not think that the sentencing submissions made by the appellants’ counsel to the sentencing Judge were realistic, particularly when the appellants had not pleaded guilty and were not entitled to any mitigation in that respect. The case of Fa’aoso v R [1996] TLR 42 speaks of 5 years as a starting point for rape. But this case is one which involves much more criminality than just one rape; that means the starting point must be higher.
[21] We also think that the sentencing submissions made by the Prosecutor to the sentencing Judge were also slightly too low. The prosecution relied upon the case of Rex v Hu’akau & Hu’akau CR107-108/2017. We do think this was a comparable case, in many respects. It was a case where a husband and wife co-operated in sexually abusing their children. The husband was the worst offender. He was convicted (after a trial) of one count of rape and 14 counts which were predominately for serious indecent assault and domestic violence. His overall sentence was 12 and a half years. This was made up of partially cumulative sentences: 8 years for rape; 3 years for a serious assault on one daughter, and 18 months for a serious sexual assault on another daughter. The decision to impose partially cumulative sentences was appropriate in that case because the offending was against different complainants, and occurred on several different occasions. Here the offending formed one episode, so it is the overall sentence in Hu’akau (12 and a half years) which is the helpful comparator, rather than the individual sentences.
[22] In this case because the offending was one series of criminal acts, and because of totality considerations, it was appropriate that sentences be imposed which were concurrent, rather than consecutive or cumulative. The consequence of that approached is that the starting point for sentencing, and the ultimate sentence of imprisonment imposed, had to reflect the total criminality of all the offending which each appellant committed.
[23] In respect of the male appellant, the most serious offending was the rape offending. The maximum sentence for the offence of rape is 15 years. The sentencing Judge selected a starting point of 14 years. Bearing in mind the maximum penalty for the offence of rape, we think that this starting point was too high, even though the sentence had to allow for the criminality of all the offending which took place. We think that an appropriate starting point was 11 or 12 years, and that starting point should have been reduced slightly to allow for the fact that the male appellant had no previous convictions. We think that an appropriate sentence on each of the rape charges was 11 years. As the sentencing Judge recognised, the 2 rape sentences should have been concurrent with each other, and with the sentences for serious indecent assault and abetment to serious indecent assault. We think that it was appropriate to impose a separate severe sentence for the sodomy. We think that should have been 8 years. The sentence for the sodomy should also have been concurrent with the other sentences, otherwise the totality of the sentences imposed would have been crushing. While we acknowledge that the effect of concurrence is to subsume this offending within the discrete rape sentences, its seriousness is recognised within our starting point which reflects the totality of the first appellant’s offending.
[24] The female appellant was found by the sentencing Judge to be in control of the offending which took place against the complainant. Nonetheless, she was only charged with one count of abetment to rape, whereas the male appellant was charged with 2 counts of rape. The female appellant was not charged with abetment to sodomy. She was charged with only 3 counts of indecent assault, whereas the male appellant was charged with 4 counts of indecent assault. Both were charged with 1 count of abetting a serious indecent assault. In these circumstances, the sentencing Judge recognised that the female appellant’s criminality was high, but also, appropriately, took into account that she was charged with less offences than the male appellant, and gave her a slightly lesser sentence.
[25] We should adopt the same approach, so that the sentence of the female appellant is slightly lower than that of the male appellant. We think her sentence should be 10 years on the charge of abetment to rape. In fixing this sentence we take into account all the offences she committed against the complainant. We think that the sentences imposed for her abetting a serious indecent assault, and committing a serious indecent assault herself should not be disturbed, but that all her sentences should be concurrent, rather than partially cumulative.
[26] Because the sentences which we imposed are severe in their length we think it appropriate to make a considerable allowance for suspension, as the Crown conceded we should. Suspension in this case will allow some supervision of the appellants as they transition back into the society after long jail sentences, this will be useful in their rehabilitation and reintegration into the community and their family. A longer period of suspension will also mean that there is a longer period where the suspended sentence hangs over their heads, providing deterrence for some considerable time in accordance with the principles in Mo’unga v R [1998] TLR 154.
[27] The Court:

1. Allows the appeal.
2. In respect of the male appellant: (a) quashes the sentence of imprisonment on the 2 counts of rape and 1 count of sodomy; (b) in substitution, imposes a sentence of 11 years on each rape and 8 years on the count of sodomy; (c) does not disturb the other sentences imposed below; (d) orders that all sentences are to be served concurrently with each other.
3. In respect of the female appellant: (a) quashes the sentence on the count of abetment of rape; (b) substitutes a sentence of 10 years; (c) does not disturb the other sentences below, except that it, (d) orders that all sentences are to be served concurrently with each other.
   
4. Orders that the sentences of imprisonment for both appellants are to be suspended in their final 2 years, for a period of 3 years, on the conditions that the appellants: (a) do not commit any further criminal offence during the period of suspension; (b) be placed on probation; (c) live where directed by their probation officer, and (d) attend and satisfactorily complete a course on sexual abuse at the direction of their probation officer.
   

Harrison J

Heath J

Dalton J

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^[1] We cannot quite reconcile these sentences with the counts on the indictment, which are as set out at [2] above. No point was taken about this, and it makes no difference to the length of the sentences imposed.