Rex v Langi [2013] TOSC 21; CR41.2013 (5 November 2013)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU’ALOFA REGISTRY
CR41.2013

REX

V

VILIAMI AFE LANGI

BEFORE THE HON. JUSTICE CATO

SENTENCE

[1] The prisoner, Viliami Afe Langi, is an 18 year old who pleaded guilty to the rape of a feeble minded woman, in this case aged 44 contrary to the provisions of section 118 (1) (c) of the Criminal Offences Act. The maximum penalty for rape is 15 years.

The facts with which the prisoner did not disagree were;

1. The accused was a 17 year old from the village of Pea. The victim is from the same village.
   
2. The victim and the prisoner are relatives. The prisoner's paternal grandfather is the victim's great uncle.
   
3. On or about the afternoon of the 21st November, 2012 the victim was alone at home in Pea. She was sleeping when the accused entered.
   
4. He proceeded to remove her clothes before having sexual intercourse with her before leaving.
   
5. The victim's family later arrived to find her dishevelled, half naked and crying. Her relatives questioned her and subsequently lodged the complaint.
   
6. The victim admitted to the offending stating that the reason for his actions was to get at his girlfriend whom he had an argument with.
   

[2] The victim suffers moderate mental retardation with an IQ level of 35-49 which according to Dr Puloka, who prepared the report, is equivalent to a six to nine year old. She was reported to be shy and of quiet disposition. She had little to say to counsel who interviewed her but appeared teary eyed during one stage of the interview. She is being taken care of by an older sister.

[3] However, for reasons which appear in the victim impact report prepared by the Crown I have considerable concern for her welfare. She and her sister, who is her caregiver, have now moved from the village of Pea, to another village. I request the Crown to take a continuing protective interest in this victim, and her child. I note the report indicates she has received other serious sexual abuse from members of her extended family. I found the report prepared by Ms 'Atiola for the Crown very helpful.

[4] The prisoner is aged 18 now. The family have indicated they have accepted the prisoner's apology and they will respect whatever decision the Court delivers. He comes from a large family. His father recently died and his mother works. He also has been assisting in the family plantation. He showed considerable talent at sport where he represented Tonga on a schoolboys tour to Australia in 2011. He also joined a tour to New Zealand when he 15. He has also toured Fiji. He also played cricket. He displayed sufficient ability at his studies to reach the sixth form.

[5] His mother suggested to the probation writer that he was a quiet boy at Liahona, but after he went to another school in his sixth form year, he started to change. He commenced consuming alcohol, smoking and going out with friends. She feels that it was during the tours that the peer pressure also came into play. The prisoner admitted that the rape was committed under the influence of alcohol which of course may explain in part his aberrant conduct, but as the probation writer says is no justification in law, at all.

[6] I have no doubt on what I have read that this young man, it seems of considerable promise, has sadly become increasingly dependent on alcohol and in his case with very serious consequences. Apparently, his father was concerned for his son before he died. He had ceased it seems much of his former church activities. He seems now to have appreciated the error of his ways and showed contrition apologizing in Court for his actions.

[7] I am concerned both the victim in this case, and for the prisoner, who whilst still very young and with considerable promise, has committed a very serious crime. He has been in prison awaiting his sentence since he pleaded guilty and this seems to have had a very sobering effect on him.

[8] The paramount sentencing considerations here are the protection of the vulnerable, deterrence, denunciation or condemnation of such behaviour, and punishment for those who commit crimes of serious sexual abuse such as rape. The Courts protect woman from predatory sexual activity and those who are vulnerable. The Court of Appeal has set a starting point of five years for rape some years ago. Parliament has not increased the statutory maximum sentence for rape. I adopt 5 years as the starting point here.

[9] The prisoner pleaded guilty at an early stage. In cases of sexual offending particularly where the complainant is vulnerable either by reason of age or for some other disability, a significant discount should be given for an early plea which means the victim escapes the ordeal of having to give evidence. An early guilty plea is a manifestation also of genuine contrition. Cases of this kind can also be particularly difficult for the prosecution to prove. I consider a discount of 30% for an early guilty plea in a case of this kind is appropriate.

[10] I also take into account his youthful age and that he is a first offender. He has shown contrition. He is a young man of some promise. I allow another 10% for these factors making a total discount of 40%. That means the sentence I impose is three years imprisonment to be backdated to the date in which he was remanded in custody.

[11] I now turn to the question of suspension. I suspend the final 15 months of his sentence. I do so because I consider his guilty plea, his contrition, and the fact he is a first offender means that he is a worthy candidate for rehabilitation. I do not, however, propose to suspend more than this because to do so would diminish adversely the message this Court is concerned with in cases of this kind that is to deter predatory behaviour and sexual abuse of woman. I, accordingly, suspend the final 15 months of the sentence on the following conditions;

1. The prisoner is not to commit any further crimes punishable by imprisonment for a period of two years. Should he do so he is warned that he may be required to serve the 15 months period in addition to any period of imprisonment, he is ordered to serve for any new criminal offending, if convicted.
   
2. He is placed on probation for a period of 15 months;
   
3. He is to live where directed by his probation officer;
   
4. He is not to consume alcohol for a period of 15 months;
   
5. He is to attend the following courses under the direction of the probation office;
   
   1. An alcohol and drug abuse program;
      
   2. A life skills program;
      
   100. An anger management program.
        

DATED: 5 NOVEMBER 2013
JUDGE