Rex v Sinoti [2015] TOSC 37; CR116.2014 (7 September 2015)

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

CR 116 of 2014

BETWEEN:

REX
Prosecution

AND:

MAIKOLO SINOTI
Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Counsel: Mr. T Aho for the Crown (written submissions by Mrs. E Langi)
Mr. D. Corbett for Mr. Sinoti

Dated: 7 September 2015.

SENTENCE REMARKS DELIVERED ORALLY

[1] Maikolo Sinoti appears before me today for sentence on one count of indecent assault on a child contrary to section 125 of the Criminal Offences Act arising out of an incident that occurred on February 2014. The offence is punishable by a maximum sentence of 7 years imprisonment. The offence upon which Mr. Sinoti was convicted was an alternative to a more serious charge that he had attempted carnal knowledge of the victim contrary to section 122(1) of the Criminal Offences Act. On that charge Mr. Sinoti was acquitted.

[2] The facts have been set in out in my earlier ruling and I do not proposed to repeat them in detail. A brief summary of the facts are as follows. At the time of the offending Mr. Sinoti was 23 years old and his victim was 11 years old. He was related to the victim in that her father is Mr. Sinoti's first cousin. On the day the offence was committed Mr. Sinoti coerced the victim to accompany him to an abandoned bus close to her home where he performed indecent acts upon her. I found these to be laying her on the floor of the bus, removing his pants and her clothes, laying on top of her, putting his penis on her vagina, kissing her, masturbating and ejaculating.

[3] In relation to sentencing I have received written and oral submissions from both Counsel of the Crown and Mr. Sinoti and have a Probation report. I have today been given two references in favour of Mr. Sinoti which I have had regard to also.

[4] In his submissions for Mr. Sinoti, Mr. Corbett acknowledges that Mr. Sinoti knew what he did was wrong. He says that Mr. Sinoti offered to plead guilty to the lesser of the two charges he was facing but no agreement could be reached about that. He said that was the reason the case had to proceed to trial and Mr. Sinoti was acquitted of the more serious charge. Although Mr. Corbett does not expressly say so, there appears to be a realistic acknowledgement that a custodial sentence is inevitable as the focus of his submissions is whether the period of imprisonment imposed should be suspended in whole or in part. He has referred me to the case of Mo'unga v R [1998] Tonga LR 154 where the Court of Appeal set out the principles to be applied in deciding whether to grant a suspended sentence of imprisonment. Mr. Corbett particularly noted the relevant matters as being:

1. Where the offender is young, has a previous good record, or has a long period free of criminal activity.
   
2. Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself.
   
3. Whether, despite the gravity of the offence there is some diminution of culpability through lack of premeditation, the presence of provocation or coercion by a co-offender.
   
4. Whether there has been cooperation with the authorities.
   

[5] In applying these principles to this case, Mr. Corbett submitted a suspended sentence of imprisonment was open here because:

1. Mr. Sinoti has only one previous conviction in 2012 and has committed no other offences.
   
2. Mr. Sinoti has no previous convictions for an offence of a sexual nature.
   
3. Mr. Sinoti is a young man at 24 years of age and therefore has an opportunity to rehabilitate himself.
   
4. Mr. Sinoti has only primary school education so giving him the opportunity to attend a life skills course would help to educate him.
   

[6] Mr. Corbett also referred me to the Court of Appeal decision of R v Motulalo [2000] Tonga LR 311 which involved more serious sexual offending that occurred in this case. In considering how to deal with Mr. Sinoti I find most relevant the comments of the Court at page 314 which highlight the need to recognise the serious emotional trauma that is bound to result from such offending which is likely to affect the victim for a very long time.

[7] In the written submissions for the Crown, Mrs. Langi noted in mitigation of the offending that Mr. Sinoti is relatively young and that he may be characterised as a person with no relevant previous convictions. However, she points out that there are significant aggravating features of the offending as follows:

1. The age disparity between Mr. Sinoti and his victim.
   
2. Mr. Sinoti was in a position of trust as he was victim's relative.
   
3. That Mr. Sinoti had coerced of victim to accompany him to the bus where he had performed the indecent acts.
   

[8] Mrs. Langi has referred me to a number of sentencing comparables and I have undertaken my own research. The cases that I have considered included R v 'Ilangana CR56 of 2015, R v Lui Lomu CR92/14, R v Taulanga [2007] Tonga LR 141 and R v Vaiangina CR312 of 2011. In my view, the most directly relevant incomparable is R v 'Ilangana. That case concerned, a 19 year old who committed indecent assaults on a girl aged 7 when he removed her pants and underwear, sat on her body and rubbed his penis on her buttocks and vagina and massaged her buttocks and vagina. Although charged with four offences they all appear to have arisen from the one incident which took place over a period of about 10 minutes. Justice Cato considered that the starting point for sentencing purposes was 2 years imprisonment which he discounted by 9 months to take into account the accused's guilty plea at an early stage, a lack of previous convictions, remorse and corporation with the authorities. He also considered it relevant that the defendant was a shy, immature and retiring individual, dependent upon his mother and of little sophistication. The result was a period of 15 months imprisonment but Justice Cato suspended the last 9 months of the sentence. Relevant for present purposes is paragraph 12 of Justice Cato's sentencing remarks where he said.

I have now to consider whether the sentence of imprisonment should be suspended fully or partially. I consider, having reflected on the matter over the period since the submissions where heard on the 7 August 2015, that I would be failing in my duty to protect young children in Tonga from sexual abuse were I to fully suspended the sentence and impose what I was urged to do by Mr. Edwards namely a lengthy sentence of community work. However, given his early guilty plea, remorse, lack of previous convictions, the fact this was a isolated activity, and the view I have taken of him generally that he is a good candidate for rehabilitation, I will impose the least restricted period of imprisonment I feel able to do consistently with the public interest in deterring such activity and protecting young children. I accordingly suspend the last 9 months of his sentence.

[9] I turn now to the Probation Report. It paints a disturbing picture of Mr. Sinoti. He had a dysfunctional childhood, an unstable upbringing and a low level of education. Mr. Sinoti is married with a child but his wife and child live overseas and so he does not have the day to day support that such relationships would ordinarily provide. The report notes that Mr. Sinoti has employment as a chef, which he enjoys, and he has the support of his employer who regards him as well behaved, diligent and well socialised with his co-workers and customers. He also attends Church and there is a reference before me from the Assembly of God Church. However, on the negative side and most importantly, Mr. Sinoti has acknowledged disturbing sexual behaviors throughout his life, although it is not clear whether such behaviors would amount to criminal offending. Be that as it may, Mr. Sinoti has a deeply unhealthy attitude to sexual matters. The report suggests that when aroused he indiscriminately tries to persuade others to allow him to perform indecencies upon them while he satisfies himself sexually. The report notes that Mr. Sinoti's attitudes to sexual matters are very dangerous and questions whether he may be mildly intellectually impaired. The report writer was undecided whether Mr. Sinoti's responses were genuine or whether he was attempting to escape the burden and seriousness of his criminal actions. The report recommends the Court consider a custodial sentence.

[10] Having considered all the facts put before me I consider that the gravity of the offending in this case is very similar to what occurred in 'Ilangana. I therefore propose to adopt the same starting point for sentencing purposes as was applied in that case, which is 2 years imprisonment. I am prepared to give Mr. Sinoti credit for the fact that he wished to plead guilty to the offence upon which he was convicted, although that is tempered by the fact that at his trial he did attempt to defend both charges and adopted as his strategy attacking the integrity and honesty of the prosecution witnesses. I also give him credit for the fact that he appears to be remorseful and that he has no relevant previous convictions. I therefore discount his sentence by 6 months to account for these matters. He is therefore sentenced to 18 months imprisonment.

[11] Turning to the issue of whether all or some part of the sentence should be suspended, Mr. Sinoti has exhibited predatory sexual behavior on this and other occasions and I feel he must actually serve a period of imprisonment consistent with my duty to deter such behavior and protect young children from the risk of his further offending. However, it is also the case that Mr. Sinoti is young and there are indications that he will be able to rehabilitate himself. Certainly, his acknowledgment that what he did was wrong, his recent good work history and his attendance at Church support that view. On balance, and not without reservations, I will suspend the final 6 months of Mr. Sinoti's sentence on the following conditions:

1. He is not to commit any offence punishable by imprisonment for a period of two years;
   
2. He is placed on probation for the period of his suspension (that is the 6 months following his release);
   
3. He must reside where he is directed by his probation officer but under no circumstances is he to reside in the same community as the victim for the period of his probation;
   
4. He is to attend a course on life skills and a course on sexual abuse at dates and times as directed by his probation officer and the Women's Crisis Centre.
   

[12] I also recommend the Commissioner of Prisons endeavour to place Mr. Sinoti away from other adult prisoners so as to ensure his protection. A copy of these sentencing remarks when typed up should be given to the Commissioner forthwith.

O.G. Paulsen

LORD CHIEF JUSTICE

DATED: 7 September 2015.