Rex v Valikoula [2012] TOSC 22; CR 159 of 2011 (2 May 2012)

IN THE SUPREME COURT OF TONGA
CRIMINIAL JURISDICTION
NUKU'ALOFA REGISTRY

CR 159 of 2011

REX

-V-

TEVITA VALIKOULA

BEFORE THE HON. JUSTICE SHUSTER

HAVING HEARD – From Crown Counsel during the course of the trial, from Defence Counsel Mr. S Tu'utafavia, and from the defendant in person, today.

The defendant appears for sentencing - having been found guilty after a trial which took place on 13, 14 and 15th March 2012 on an indictment alleging four counts of [indecent assault] on a child under 12 years and on two counts of [Incest] allegedly committed from 2005-2010 against the defendant's biological daughter.

The circumstances of the offences are as set out in my judgment dated 10th April 2012, and I do not intend to rehearse the facts again here today. On 10th April 2012 the defendant was convicted of counts one to five and he was acquitted on count six in the indictment, for the reasons contained in the judgment.

On10th April 2012 [the date of judgment] the case was adjourned for the preparation of a PSR and, the defendant was remanded on conditional bail for sentencing to Monday 30th April 2012 @ 14.00 with a condition that he co-operates in the making of that PSR. The Court also ordered a VICTIM IMPACT REPORT at the same time, to be made available to the court for sentencing purposes.

It should be noted that the defendant is NOT a first time offender, he has one minor conviction in the past for drunkenness that said, I do intend to treat the defendant as a first time offender.

According to the pre-sentence report, the defendant is now aged 49 years, and at the time he committed these offences he was self-employed, having care of his family, he worked in the bush and travelled overseas to find work abroad. His wife now lives in America.

On 30th April and again on 01st May 2012 the case had to be adjourned as his counsel was unavailable and the Court would not sentence the defendant in his counsel's absence.

On 2nd May 2012 the defendant appeared for sentencing.

Having considered all the facts of this case, including the plea of mitigation considering the contents of the PSR, and considering the fact the defendant pleaded not guilty and he put his victim through the trauma of giving evidence against her father and having heard from the defendant in person.

The court also takes note of the difficulties in this type of case faced by both the prosecution and the defence, due to the significant delay in reporting these crimes to the competent prosecution authorities {see the case of - re MM} and the discussion as set out in my judgment

POLICY

I told the defendant – "Incest crimes" in the Kingom are becoming much more frequent, and this type of offending must be stopped. The way to do this is by the imposition of appropriate sentences in order to deter others from such offending.

Indecent assault cases are also on the rise in the Kingdom and in this particular case of several indecent assaults; the assaults are serious as they involve a clear breach of trust between the defendant and his daughter the complainant over a long period of time commencing when she was just 8 years old. She told the court in tears she did not know what was happening to her.

I told the defendant the aggravating feature of this crime were also- the fact that the victim was subject to abuse as detailed in the indictment from 2005 to 2010 in a continuing course of conduct that was inappropriate and is a clear breach of trust between a father and his youngest daughter.

The indecent assaults are then aggravated by the fact the defendant then went further in that he had unlawful sexual intercourse with his daughter - knowing full well that the complainant was his 12 year old daughter.

The other aggravating feature to this case are the vast disparity in the age between the complainant - viz a viz his victim- 45 v 12 particularly - in regards to Tongan culture behaviour and standards.

I also take into account, the defendant, by his not guilty plea forced his daughter to give evidence in open court before complete strangers.

I take into account on the defendants behalf, his previous good character the work the defendant has done in the community for his family.

I also take into account the delay in reporting these allegations to the competent police authorities - but I can only conclude that an immediate custodial sentence in this case - is entirely warranted for the seriousness of this type of offending the defendants clear breach of trust and, to deter others from committing like offences.

The defendant is sentenced as follows:-

Count 1 – The defendant is sentenced to FOURYEARS imprisonment,
Count 2 – The defendant is sentenced to FOURYEARS imprisonment,
Count 3 – The defendant is sentenced to FOURYEARS imprisonment,
Count 4 – The defendant is sentenced to FOURYEARS imprisonment,
Count 5 – The defendant is sentenced to EIGHT YEARS in prison –
Count 5 – The defendant was acquitted and discharged. The sentences are to be served concurrent to each other.

Because the defendant is to all intent and purpose a first time offender I have decided to SUSPEND the last TWO YEARS of the EIGHT YEAR sentence which I have just passed, conditional upon the defendant, keeping the peace and being of good behaviour and committing no further offending during the remaiing period of the suspension of the sentence of imprisonment.

The defendant is divested of guardianship of the complainant - Sela Valikoula [ per Act 9 of 1987] from todays date.

I certify I have warned the defendant about the consequences of committing any further offences - whilst he is subject to a suspended sentence. The start of the defendants sentence of imprisonment is to run from 30th April 2012 which is the date of the defendants first remand into custody by this court.

This is to be a deterrent sentence, applying the principles enunciated in the case of the Crown –v- Cunningham.

A copy of this order is to be served on the defendant and on the Prison Service forthwith

DATE: 2 May 2012

JUDGE