R v Hu'akau [2008] TOLawRp 16; [2008] Tonga LR 64 (11 April 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 16/2008

R

v

Hu'akau

Ford CJ
11 April 2008

Sentencing – carnal knowledge of girl under 12 – early guilty plea – sentence 8 years

The 27 year-old accused appeared for sentencing having pleaded guilty to one count of carnal knowledge of a girl under the age of 12 contrary to section 121 of the Criminal Offences Act (Cap 18). The five-year-old victim was in class one at the local Government Primary School. As she walked home from school on the day in question with some young friends, the accused called out from the doorway of his house for one of the girls to go to the shop and buy him a box of matches. His real intention was to persuade one of them to enter his home so that he could carry out his planned indecent acts. After committing the offence on the victim he gave her 50 cents and sent her to the shop to buy some matches and sweets for herself. He told her not tell anyone. The victim went straight home, however, and told her mother what had happened. The accused had no prior convictions and he pleaded guilty at the first opportunity. A victim impact report noted that the victim had been greatly affected by the incident and significant changes had been noted in her behaviour.

Held:

1. The accused was entitled to credit for having no previous convictions and for his guilty plea. The court also accepted that he was genuinely remorseful for what he had done. His offending, however, was of the most serious category imaginable and a strong deterrent message was called for to protect innocent young children.

2. Had it not been for the accused's guilty plea, the court would have imposed a sentence of 10 to 11 years imprisonment. The sentence, in fact, imposed was eight years imprisonment without any period of suspension.

Statutes considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown : Mr Kefu
Counsel for the accused : Mr Kengike

Sentencing Remarks

[1] You are appearing before me for sentencing on one count of carnal knowledge of a girl under the age of 12 contrary to section 121 of the Criminal Offences Act (Cap 18). Outside of murder and treason that particular offence is the most serious in the statute books carrying a maximum sentence of life imprisonment.

[2] The victim in your case was only five years old. She was in class one at the local 40 Government Primary School. She was walking home from school at lunchtime with some of her young friends. The Probation Officer says (and I will read from his report):

"He noticed the primary school children come by the street at the lunch break. The accused said he came to the main door of his house facing the front yard intending to call to any of the female children to go to the shop and buy him a box of matches. The accused said that he was only pretending to want the matches. His real intention was to get one of the female children inside the house in order to allow him to do the "dirty" things to her to rid him of his arousal. Finally, the accused was able to call victim, leading her and she followed him into his room to get some money to go and buy some matches from the shop. The victim followed the accused into his room and thats when the accused did what is stated in the summary of facts. It was at this part of the interview that the accused agreed to everything that had been stated in the summary of facts: . . . "When they reached the room the accused told the complainant to take off her underpants and then asked her if he can lick her. When the complainant refused, the accused then carried the complainant to a wooden chair and laid her there. The accused then kneeled in front of the complainant and proceeded to carnally know the complainant by inserting his penis into her vagina. The complainant pleaded with the accused to stop but the accused told her to wait. The accused copulated until he ejaculated outside the complainant's vagina . . ."

He said that after committing the offence he gave the victim 50 cents sent her to the shop to buy him three matches and sweets for her then he told her not to tell anyone. He said that after a short while the victim together with her mother returned and asked what he had done to the victim. The accused said he did not know what to say but only apologise to the victim's mother and admitted what he had done."

[3] You a 27 years of age and single. You were working as a security guard on nightshift at the time of the offending. You left Liahona High School in Form 5 in 1997. You then had a job in Ma'ufanga until 2000 and in that year you travelled overseas and served two years on Church missionary work. Not surprisingly, you lost your job after your arrest.

[4] The Probation Officer has produced references from your Church President and from your Town Officer which I have had interpreted and this morning your counsel Mr Kengike produced further references from your Church Bishop and from a woman who I understand is the child's mother's sister. I have read those references and taken them into account.

[5] Your parents are obviously good church people. Your father is a Bishop. Understandably they were shocked to learn what you had done. They apologised in the traditional Tongan manner while you were still in police custody. Although your parents continue to support you, the Probation Officer reports that many of your extended family wanted you to change your surname because of the disgrace you have bought on the family name.

[6] The Probation Officer notes that you had made up your mind that day to carry out the offence on any one of the little girls in the group who would agree to do your shopping. He also notes that you committed the offence to satisfy your arousal. The Court requested a victim impact report. The Probation Officer describes the victim as "a delightful little girl who looks happy, clean and healthy." At the same time he noted that she has a very good memory and he has no doubt that what you did to her that day will affect her whole life.

[7] The child is being fostered by a Church Minister and his wife. Her natural mother lives in New Zealand although she was in Tonga apparently looking after the child at the time of the offending. After the incident the child spent three days in hospital for medical treatment and inspection. Her foster mother told the Probation Officer that after the girl's physical injuries healed they had a hard time trying to help her get the offence out of her mind. Both parents identify great changes to the victim's behaviour. She began to disobey them (which she had not done before). Whenever they drive past the scene where it all happened the little girl recalls the incident and starts talking about things related to it. The foster parents are now planning to take the child to New Zealand to live.

[8] The Probation Officer also helpfully interviewed the victim's schoolteachers. The teacher who taught her last year in class one describe the little girl as one of those in the class who was always well cared for. She said that she was clean and tidy and she described her as "an active, good mannered child with a happy and friendly nature." Her present teacher notes that the little girl now often appears not to be concentrating. She told the Probation Officer that she just sits and stares at nothing and when the teacher calls out her name she reacts surprisingly. The Probation Officer also noted that during school breaks her teacher has observed the victim "being cruel to little boys and hating boys in her playgroup."

[9] Both teachers concluded that the victim will be greatly affected by the incident and not only that but they told the Probation Officer that what you have done to her will remain in her memory for her entire life.

[10] So to satisfy your own lust that day you, in a short space of time, carried out indecencies on this little five-year-old girl that will affect her for the rest of her life.

You stole her childhood innocence. Nothing I now say can sum up the total disgust which everyone associated with your disgraceful conduct must feel. I can safely say that those same feelings will be shared by all right-thinking members of Tonga Society.

[11] You are entitled to credit for having no previous convictions and for your guilty plea. You were wise to listen and take the advice of Mr Kengike in that regard. I accept that you are now genuinely remorseful for what you did.

[12] However, whatever way you look at it, your offending was of the most serious category imaginable. On that fateful day a little girl in her innocence was kind enough to answer your call to go and buy something for you from the local shop. You rewarded her kindness by taking away her childhood innocence for ever.

[13] A strong deterrent message is called for. Innocent young children must be protected from predators like yourself.

[14] Had it not been for your guilty plea, I would have been looking at imposing a sentence of 10 to 11 years imprisonment. Taking into account all the matters I have mentioned, particularly your guilty plea, the sentence I now impose is eight years imprisonment.

[15] I have given thought as to whether part of the sentence should be suspended but, given the serious nature of the offending, I am not prepared to grant suspension of any part of the term of imprisonment imposed.