Rex v Vailea [2020] TOSC 27; CR 80 of 2020 (29 May 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY
CR80 of 2020 CR 81 of 2020
REX -v- SAMUELA VAILEA and LE’AU PEPE

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Mrs H. Moa for the Prosecution Defendants in person
Date of sentence:	29 May 2020

Introduction

1. On 23 April 2020, on a single indictment, Samuela Vailea pleaded guilty to one count of carnal knowledge of a young girl under the age of 15 contrary to section 121(2) of the Criminal Offences Act, and Le’au Pepe pleaded guilty to one count of simple indecent assault contrary to section 124 (1), (4) (a) and (5) of the said Act.
2. Both defendants are 16 years of age.

The offending

3. On 14 October 2019, the victim, who was then 13 years of age, ran away from her residence to her maternal uncle's residence. Upon arrival, she stayed with her uncle's wife and their children. The victim went to another residence later that evening belonging to the sister of her uncle's wife. While walking on the road, she met Samuela and another male. They eventually reached Samuela's uncle's residence. No one else was there. The other male left. The victim laid on a bed while Samuela lay on a sofa next to the bed. Samuela then had sexual intercourse with the victim.
4. Afterwards, Samuela and the victim went to another residence. Samuela then left as he had work to do in the morning. Whilst the victim was with two others, Le’au appeared. The victim knew him by his nickname. The other two persons started making fun of the victim and Le’au encouraging them to "pair up". The victim and another female went to a hut nearby. Le’au followed them. He then held the victim's hands so that she couldn't struggle. He then kissed the victim's neck leaving love bites and kissed her on the mouth. The victim told Le’au there was blood under the bed to distract him. She then kicked him in the stomach and ran back to the house. The victim remained at the residence until an adult arrived. He took the victim and the other two persons back to his residence. Thereafter, the victim was taken back to her family home.
5. On 16 October 2019, police received information from Vaiola Hospital of a suspected carnal knowledge case. Medical examination of the victim found physical evidence consistent with sexual violation.
6. On 29 October 2019, the victim's mother lodged a formal complaint against both defendants. They were apprehended. They cooperated with police and admitted to the offending. They said they knew the victim was a young girl.

Crowns submissions

7. In R v Sione Pifeleti Maile CR 58 of 2018, unreported, the defendant was charged with four counts of carnal knowledge of a girl who at the time was 12 years of age and was related to the defendant. Cato J sentenced the defendant to a good behaviour bond for two years, probation for that period and required the defendant to attend a life skills program.
8. Having regard to obvious aggravating and mitigating features, the relevant legislation and the one comparable sentence, the Crown submits that a non-custodial sentence is appropriate for both defendants. It also submits (somewhat quizzically) that a suspended sentence in whole or part is appropriate.
9. There was no victim impact report filed.

Presentence reports

10. The presentence report for Samuela describes him as having grown up well in a stable home environment. He dropped out of secondary school early due to financial hardship. He worked in the plantation to help provide his family with food and financial support. He is reported as having behavioural problems ‘against social norms’ particularly in relation to substance abuse that includes alcohol and benzene. His silent behaviour is of concern as it is appears to be a concealment strategy. This is his first involvement with the law. He expressed remorse to the report writer for what he had done. Whilst he told the report writer that he did not know that what he did was illegal until he was arrested by the police, he is now aware that what he did was illegal and accepts full responsibility for his offending. He said he never thought to ask the victim's age at any time while they were together that night. He was aware, and took advantage of, the victim's vulnerability when she asked for a place to spend the night out of fear of returning to her home.
11. He is described as not mature enough to make rational decisions for himself and unable to foresee the impact of his decisions on his future. He has been assessed as presenting a low risk of reoffending. However, the probation officer described Samuela’s behavioural problems as posing a social threat to the community. The officer recommended a community-based sentence involving a bond for two years, probation and completion of a life skills course with the Salvation Army.
12. The presentence report for Le’au describes him also as having grown up in a stable home environment. He has very limited education as he was expelled from secondary school due to alcohol problems and also made his own choice to quit school. He is helpful at home but behaves against the social norms when out in the community. He avoids involvement in religious activities and demonstrates behavioural problems consistent with substance abuse. This too is his first court appearance. He has expressed remorse for what he did and says that he is now aware that what he did was illegal. In recounting the circumstances of the offending to the report writer, Le’au said that he asked the victim's consent to kiss her but never asked for her age because he did not then think that what he was doing was illegal. He also was aware of the victim's vulnerable situation that evening, but, like Samuela, Le’au took advantage of the victim in committing his offence. Peer pressure is also noted as a major contributing factor for Le’au's offending.
13. He too is considered not mature enough to make rational decisions for himself and is unable to foresee their impact on his future. While the probation officer considers Le’au’s offending to be at the lower end of sexual crimes, he did opine that the circumstances of the offence and the age of the victim still make it a relatively serious matter. Le’au was also assessed as presenting a low risk of reoffending. However, he must change his current patterns of behaviour which may otherwise lead to further problems. For that, the probation officer considers that Le’au requires professional assistance. The officer recommended a community-based sentence involving a good behaviour bond for one year, with probation and completion of a life skills program conducted by the Salvation Army.

Consideration

14. Section 121(b) provides a maximum penalty for carnal knowledge of a young person under the age of 15 years of imprisonment for 5 years. I note that sentences for carnal knowledge of a girl under the age of 12, pursuant to s.121(a), for which the statutory maximum penalty is life imprisonment, have uniformly attracted significant jail sentences. Here, as noted above, the victim was 13 at the time.
15. Section 124(4) provides that the offence of simple indecent assault is punishable by imprisonment not exceeding 3 years and shall be heard and determined by the Magistrate’s Court.
16. Both defendants have no previous convictions.
17. But for their youth and relative immaturity, I would have been minded to impose prison sentences of 18 months and nine months respectively with further consideration to be given to suspension of all or part of those terms. In the ordinary case, a custodial sentence would be warranted in order to:
    • 17.1 reflect the Court’s denunciation of this alarmingly prevalent type of offending;
    • 17.2 protect young girls in society; and
    • 17.3 effect adequate deterrence.
18. However, as noted recently in Rex v Toutai'olepo [2020] TOSC 3, when it comes to sentencing of young offenders, the Court of Appeal in Rex v Tau'alupe [2018] TOCA 3 at [16] cautioned that:

“... the sentencing of young offenders raises special considerations: see for example the discussion in R v Churchward [2011] NZCA 531 at [77]- [92]. An offender’s youth may impinge on an assessment of their culpability. As Mr. Mo’ale said, prison for any period is known to carry an enhanced risk of trauma for young people. And, as this Court recognised in Mo’unga v R [1998] Tonga LR 154, young offenders have a greater capacity for rehabilitation.”

19. Further, as discussed in Rex v Afeaki [2020] TOSC 4, in the exercise of its discretion in sentencing young offenders, the court may have regard to factors such as international conventions: R v Vea [2006] TOSC 24. In December 1995, Tonga acceded to the U.N. Convention on the Rights of the Child. Although the Convention does not yet have the force of law in the Kingdom, its accession shows a willingness by Tonga to be bound by its terms. Article 37(b) of the Convention provides:

"...The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time."

20. Accordingly, having regard to the low to moderate level and somewhat opportunistic nature of the offending for each of the respective counts, the Defendants’ youth, their co-operation with police and early guilty pleas (thereby obviating the victim having to give evidence at trial not to mention the savings to the Crown in time, cost and resources) previous good records and remorse, I consider it appropriate to afford the Defendants a chance of rehabilitation by imposing non-custodial sentences.

Sentences

21. Samuela Vailea, you are convicted of the offence of carnal knowledge with a young person under the age of 15 years and sentenced as follows:
    • 21.1 Pursuant to s.198 of the Criminal Offences Act, you are placed on a good behaviour bond meaning you will enter into a recognizance to be of good behaviour and to appear for sentence when called upon at any time during the next two years.
    • 21.2 Further, and pursuant to s.199 of the said Act, the aforesaid good behaviour bond is subject to the following conditions:
      • 21.2.1 you be placed on probation for the period of the recognizance;
      • 21.2.2 you are to report to the probation office within 48 hours;
      • 21.2.3 during the period of the recognizance, you are to abstain from alcohol, illicit drugs or other substances of abuse;
      • 21.2.4 within the first year of the recognizance, and at the direction of your probation officer, you are to complete courses on alcohol and drug awareness and life skills; and
      • 21.2.5 further, pursuant to s.25A of the Act, you are to perform 60 hours of community service as directed by your probation officer.
22. Le’au Pepe, you are convicted of the offence of simple indecent assault and sentenced as follows:
    • 22.1 Pursuant to s.198 of the Criminal Offences Act, you are placed on a good behaviour bond meaning you will enter into a recognizance to be of good behaviour and to appear for sentence when called upon at any time during the next 12 months.
    • 22.2 Further, and pursuant to s.199 of the said Act, the aforesaid good behaviour bond is subject to the following conditions:
      • 22.2.1 you be placed on probation for the period of the recognizance;
      • 22.2.2 you are to report to the probation office within 48 hours;
      • 22.2.3 during the period of the recognizance, you are to abstain from alcohol, illicit drugs or other substances of abuse;
      • 22.2.4 within the period of the recognizance, and at the direction of your probation officer, you are to complete courses on alcohol and drug awareness and life skills; and
      • 22.2.5 further, pursuant to s.25A of the Act, you are to perform 40 hours of community service as directed by your probation officer.
23. Finally, I direct that the identity of the complainant and her evidence taken in the proceedings shall not be published in the Kingdom in a written publication available to the public or be broadcast in the Kingdom.
    

NUKU’ALOFA	M.H. Whitten QC
29 May 2020	LORD CHIEF JUSTICE