Rex v Kaufusi [2007] TOSC 37; CR 185-2007 (30 October 2007)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR.NO.185 of 2007

REX

-V-

TAANI KAUFUSI

BEFORE THE HON JUSTICE ANDREW

Counsel:
Mr. Little for the Crown and
Mr. Kaufusi for the accused.

Date of Hearing: 29 October 2007
Date of Judgment: 30 October 2007

JUDGMENT

The accused has pleaded guilty to one count of indecent assault contrary to s.124(1) & (2) of the Criminal Offences Act.

The particulars of the offence are that on or about the 6th June 2007 at HAVELU, he did indecently assault P.K. who was a girl under the age of 16, in that he touched and fondled her vagina.

"The complainant in this case is the grand daughter of the accused. The complainant’s father is the accused’s son. The accused was residing together with his grand daughter and her mother at Havelu at the time of the offence.

On the evening of the 6 June 2007, the complainant was outside at the kitchen helping her mother preparing the family food. The accused was in his room at the time. When the complainant’s mother went into the house, the accused called out to the complainant to come into his room. When the complainant went into the room, the accused touched and fondled her virgina. After the indecent assault on the complainant, the complainant ran out of the room.

The complainant’s mother noticed the complainant running out of the accused’s room. She then noticed that the complainant was scared in her demeanor. She then asked the complainant what had happened to her in the room, and the complainant then told her that the accused had indecently assaulted her.

The complainant’s mother then confronted the accused about what the complainant told her, and the accused admitted that he had indecently assaulted the complainant.

A complaint was lodged with the Police, and the accused was arrested. In his record of interview, statement of charges and confession, the accused admitted the allegations of indecent assault.

The complainant was six (6) years of age at the time of the offence."

The accused has admitted to touching the complainant on the outside of her vagina. This offence was serious and involved a serious breach of trust by a grandfather committing this offence on his granddaughter.

The accused is now aged 69 years of age. He says he cannot explain why he did this. Some explanation may be that his wife died some years ago and he acted on the spur of the movement motivated by some form of sexual deprivation. But that is not an excuse.

As stated the accused is now aged 69. I think the offence is a one off happening. The accused has led a blameless life, that is, this is his first offence. He has worked as a labourer with the Ministry of Works and continues to do so, earning about $100 per week.

I accept the report of the Probation Service under the hand of Mr Sefokuli. That discloses that the accused is a quiet man and normally well behaved and that he is genuinely remorseful and truly regrets his evil behaviour towards his granddaughter. The child is now separated from the accused and I do not think she is in any further danger.

Such offences of this nature involving such young and innocent victims are invariably met with a prison sentence due to the need for public deterrence and the need to protect the victim. In this case however I consider this to be an isolated incident by an old man who has led a blameless life and at his age I do not propose to sentence the accused to imprisonment. It would appear that he has been forgiven within the family and as said, that the victim is not in any danger. It was one isolated impulsive act.

The accused is sentenced as follows:

Pursuant to S.198 of the Criminal Offences Act the accused is discharged conditionally upon his undertaking to be of good behaviour and to appear for sentence if and when called upon to do so at any time within 1 year from to-day’s date.

DATED: 30 October 2007

JUDGE