Rex v Holani - Sentence [2016] TOSC 8; CR 01 of 2016 (7 March 2016)

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

CR 01 of 2016

BETWEEN:

R E X
- Prosecution

AND:

SAMUELA HOLANI
- Defendant

BEFORE THE HON. JUSTICE CATO

SENTENCE

[1]. The prisoner, Samuela Holani, who is unrepresented, appears for sentence on one count of serious housebreaking contrary to section 173(1) (b) and 5 of the Criminal Act and one count of rape contrary to section 118 (1) (a) of the Criminal Offences Act.
[2]. The prisoner, at about 1am on the 18th July 2015, broke into the unlocked residence of the complainant and entered the bedroom where the complainant was sleeping. She woke up and recognized the prisoner as a construction worker who was building a fence at her neighbour's house. She was frightened and tried to escape but the prisoner held her and forced her onto the bed. He removed her pants and inserted his penis into her and copulated. She cried and struggled but he proceeded to have intercourse with her. She later left the room and escaped to a neighbour's for assistance. The neighbour rang the police. Later, the prisoner was located in the complainant's home, behind a freezer and asleep. He was arrested by police and later admitted to the offending. He was aged 21 at the time of the offending and was 21 years old. He has no previous convictions.
[3]. The starting point for rape after a defended hearing in Tonga has been said by the Court of Appeal to be 5 years. R v Fa'aoso [1996] Tonga LR 42. However, here there were aggravating circumstances in that the prisoner unlawfully entered the complainant's residence in the early hours of the morning and raped her. A woman is entitled to expect she is safe in her house from predatory sexual offending. I increase the starting point to one of 7 years imprisonment by way of this aggravating factor.
[4]. The prisoner is young and has no previous convictions. He co-operated with police and has expressed remorse. He claims to have been drunk that evening but whilst that may explain in part his behaviour it does not justify it and cannot be regarded as mitigation. I have read the probation report also. The report suggests that the offending was out of character. He is involved in community activities, sporting activities, is a youth choir master for his church and assists his father in the plantation. I have received good testimonials about him from the Longolongo Poto He Laukau Club, as to his community work, the President of the Youth of Free Wesleyan Church of Longolongo, and his Church Minister. His parents attribute his offending to drunkenness and apologise as they have to the Victim's mother and have given her a gift of money and a large pig.
[5]. I allow him mitigation of two years and 3 months imprisonment for his early guilty plea that saved the complainant having to give evidence, his previous good character, and also the fact that some compensation has been paid by his family. He is sentenced to four years and nine months imprisonment. Because he pleaded guilty and has expressed remorse, is a first offender and has been co-operative he should have part of his sentence suspended. I suspend the final year of his sentence on the following conditions;

1. He is not to commit any further offence punishable by imprisonment for the period of his suspension.
2. He is placed on probation for the period of his suspension;

100. He is to live where directed by his probation officer;

4. He is not to consume alcohol or drugs during the period of his suspension;
5. He is to attend a course on alcohol and drug abuse under the direction of the Salvation Army and Probation.

He is warned that any failure to abide by these conditions may mean that he is recalled to serve the remainder of his prison sentence.

• • [6]. On the offence of serious housebreaking he is convicted and sentenced to three years imprisonment to be served concurrently with the offence of rape. The sentences are backdated to the date of his remand in custody.
    

C. B. Cato
DATED: 7 MARCH 2016
J U D G E