Rex v P.F [2020] TOSC 30; CR 212 of 2019 (5 June 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU'ALOFA REGISTRY
CR 212 of 2019
REX v P.F. (a pseudonym)

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Counsel:	Ms Kafa for the Prosecution Mr Tu'utafaiva for the Accused
Date of trial: Date of verdict Date of sentence:	27, 28, 29 April 2020 29 April 2020 5 June 2020

Introduction

1. On 29 April 2020, after a three-day contested trial, the Defendant was found guilty of two counts of serious indecent assault contrary to section 124 (1) and (2) of the Criminal Offences Act.
2. He appears today for sentencing.

The offending

3. The victim is the Defendant’s stepdaughter. At the time of the offending, she was 17 years of age.
4. During the early afternoon of 15 December 2018, the victim was asleep at home. Her younger brother woke her and told her to go to the Defendant to help him top up his mobile phone credit. When the victim entered the Defendant’s bedroom, he was lying on a mattress. She sat at the foot of the mattress. The Defendant told his wife, the victim’s mother, to go to the store. While she was out, the Defendant grabbed the victim around her neck from behind and pulled her towards him and fondled her breasts. The Defendant then used his other hand in an attempt to take off the victim's trousers. The victim began to yell but the Defendant told her that he would kill her if she told her mother. The victim began to cry and asked the Defendant what he was doing to which he replied that “it would be fast”. The victim’s mother then returned home. The Defendant pushed the victim upright as the mother came into the room. The victim was too scared to say anything to her mother but tried to get her attention by “eyeing” her. The mother did not realise what was going on. The Defendant then told his wife to go to the nearby football field to get the victim's two eldest half-brothers. Again, after the mother left, the Defendant assaulted the victim this time by getting on top of her and attempting to take off her trousers. He put his hand inside her pants and touched her vagina inside her underwear. He told her to open her legs. She refused. The Defendant then told the youngest half-brother, who was only five years of age at the time, to go and get a toy gun so that he could hit the victim to make her open her legs. The mother then returned again and still did not realise what was going on. The victim thought the Defendant would continue as soon as the mother left the room again, so she went to the bathroom and eventually ran to her uncle's residence.

Crown’s submissions

5. The Crown identifies the following aggravating features:
   • (a) the Defendant was in a position of trust and he grossly breached that trust;
   • (b) the offending was serious and something the victim will have to live with for the rest of her life;
   • (c) the offending was premeditated in that the Defendant encouraged his wife, the victim's mother, to leave the house on two occasions so that he could force himself on the victim;
   • (d) the Defendant threatened the victim with violence if she told anybody about his offending;
   • (e) the Defendant has not shown any remorse.
6. The Crown’s original submissions identified the only mitigating factor as the Defendant having no previous criminal convictions. However, the Crown filed supplementary submissions in which records were disclosed of the Defendant, having an alias, by which he was convicted in 1993 of housebreaking and placed on probation for two months. Also, in 2009, he was convicted of drunkenness in a public place and fined $20. As both matters are old and unrelated in nature to the instant case, the Crown accepts that the Defendant should be treated as, or akin to, a first time offender.
7. The maximum penalty for serious indecent assault is five years imprisonment.
8. Comparable sentences:
   • (a) Felemi & Tauhelangi (unreported, CR 128 & 129 2018, 4 December 2018, Cato J) - Four counts of serious indecent assault and other offences on the daughter of Tauhelangi, involving taking off the victim's clothes, licking her vagina, fondling her breasts and sucking them and the prisoner rubbing his penis on her vagina. The starting point for the more serious offences was 4 1/2 years. 12 months was deducted for mitigation, for an early guilty plea and remorse. The final six months was suspended on conditions.
   • (b) Lolohea (unreported, CR 58 of 2016, 13 December 2016, Cato J) - The prisoner was charged with a number of sexual offences upon his stepdaughter who was aged 13, including multiple counts of rape and 16 counts of serious indecent assault. The serious indecent assault involved making the victim handle the accused's penis, touching her breasts and licking her vagina. For those offences, he was sentenced to 2 1/2 years imprisonment served concurrently with the head count of rape for which he was sentenced to six years. A discount of three years was applied on account of the prisoner being a first-time offender, his guilty plea and expressed remorse. The final 18 months of the overall sentence was suspended on conditions.
   • (c) Hu’akau (unreported, CR 107 & 108 of 2017, 16 July 2018, Cato J) – Again involved multiple counts of sexual offending against the prisoner’s stepdaughter, who was 14 years at the time, including rape and serious indecent assault. The prisoner was found guilty after a contested trial. The serious indecent assaults involved fondling, kissing and sucking of the victim's breasts for which the prisoner was sentenced to 18 months’ imprisonment. On other counts involving acts of cunnilingus, he was sentenced to 3 years imprisonment. He was a repeat offender. No part of the sentence was suspended.
   • (d) Mailau (unreported, CR 71 of 2017, 14 December 2017, Cato J) - Several counts of sexual offending against the prisoner’s daughter, who was aged 17, including incest and serious indecent assault. Following a contested trial, he was found guilty of all counts. For the offences involving fondling and sucking of the victim's breasts and an act of cunnilingus, the prisoner was sentenced to 3 years imprisonment. He had previous criminal convictions. There were no mitigating features and no part of the sentence was suspended.
   • (e) Uikelotu Afeaki ([2020] TOSC 4, CR 208 of 2019, 7 February 2020, Whitten LCJ) – A 15 year old male pleaded guilty to two counts of serious indecent assault involving groping the victim’s buttocks and breasts over her clothes. The starting point was 18 months’ imprisonment. That was discounted by one third for his early guilty plea and lack of previous convictions. Due principally to the Defendant's youth, the resulting sentence of 12 months’ imprisonment was fully suspended on conditions.
9. The Crown accepts that all but the last of the above comparable sentences involved more serious offending than the present case. They also involved breaches of trust.
10. The Crown submits, as stated by Andrew J in R v Taulanga [2007] Tonga LR 102, that in sexual offending cases:

"... The overriding principle in sentencing must be public deterrence... Any sentence must denounce this conduct in addition to the element of public protection."

11. In those circumstances, the Crown submits that:
    • (a) on count one, touching the victim’s vagina, an appropriate starting point is 3 to 4 years imprisonment;
    • (b) on count two, fondling the victim's breast outside her clothing, an appropriate sentence is 18 months’ imprisonment; and
    • (c) the Defendant is eligible for some suspension of those sentences.

Victim impact report

12. Prior to these offences, the victim was living with the Defendant and the victim's mother together with her four younger half siblings. She is now living with her uncle.
13. The victim describes the offences as something she will never forget. She has often recalled them. The experience has motivated her to do better in her studies. Her relationships with her peers have not been affected. She hopes one day to reconnect with her mother and her siblings who, at present, have distanced themselves from her, which affects her emotionally. She particularly misses her siblings. She has strong support from aunts and her uncle. She is no longer as fearful as she was during the first few months after the offending. She is making constructive and positive steps to move on with her life.
14. The Defendant has not sought the victim’s forgiveness.

Presentence report

15. The Defendant is 44 years of age. He is the sixth child of eight. After his father died in 1978, when the Defendant was then only three years of age, he had an unstable upbringing. Family problems and financial difficulties impacted his education. He completed three years studying theology but did not complete the requirements for graduation.
16. He married the victim's mother in 2001. The victim is her illegitimate daughter. She suffers from a number of medical conditions.
17. Until this offending, the Defendant raised the victim as his own daughter. The Defendant's wife described him as the sole breadwinner and a responsible and caring husband and father to the children. That testimonial must now of course be seen in light of these offences. She also said that the Defendant has a very long alcohol abuse problem which has persisted throughout their marriage. In addition to his alcohol problems, the Defendant has also used illegal drugs. Contrary to her description of the Defendant as a responsible and caring husband, the wife recounted instances of domestic violence where the Defendant physically and verbally abused her. That was consistent with the victim’s accounts of observing violence by the Defendant towards her mother.
18. The Defendant has been self-employed as an unlicensed building contractor performing carpentry, electrical and plumbing works. He has also participated in the seasonal worker scheme in Australia over the last five years, spending seven months there each year.
19. The Defendant told the report writer that he does not accept the court's decision and maintains his innocence. When she was interviewed, the Defendant's wife, who gave evidence at the trial, was asked whether she now thought it possible that her husband committed the offences. She accepted that it was possible and that he had not told her the truth.
20. The Defendant and his wife asked for leniency mainly because he is the only breadwinner for the family.
21. The report writer opined that the Defendant’s long-term alcohol addiction problem and history of abuse and violence towards his family members evidences him as being a “very dangerous person”. Abusive and violent behaviours of this kind are often a very common technique used by perpetrators to control women and girls “to satisfy their predatory sexual desire”. The Defendant has been assessed as presenting a moderate risk of reoffending. However, as his behaviour of violence, coercion and threats are known patterns of sexual violence that often happens behind closed doors and is prevalent in Tongan society, the report writer considered the Defendant a “high risk to any society especially women and girls”. A custodial sentence was recommended.

Defence submissions

22. Mr Tu'utafaiva’s submissions on sentence may be summarized as follows:
    • (a) the aggravating features identified by the Crown are not disputed;
    • (b) the probation officer's description of the Defendant being "a very dangerous person" and a "high risk to any society especially women and girls" is excessive, particularly given the Defendant is 44 years old and this is his first offence of this kind;
    • (c) starting points of three years imprisonment on count one and 18 months on count two are appropriate;
    • (d) some suspension of the sentences is warranted because of the Defendant’s age, he is a first offender and his serious alcohol and illicit drug problem which ought be addressed by attending courses conducted by the Salvation Army.

Starting point

23. As conceded by the Crown, the relevant offending in the sentences of Felemi & Tauhelangi, Lolohea, Hu’akau and Mailau was more serious than the present case. However, I consider the offending in the present case to be more serious than the offending in Afeaki, because of:
    • (a) the Defendant’s disgraceful breach of filial trust;
    • (b) his relative maturity and the victim’s relative immaturity;
    • (c) the sustained and repeated nature of his attacks on the victim;
    • (d) the Defendant’s threats of violence towards the victim if she reported the offending; and
    • (e) the touching of her vagina inside her pants and underwear.
24. Another matter of concern in assessing the level of the Defendant’s culpability is whether his statement to the victim that “it will be fast” reflected his intention to try and then have sexual intercourse with her or whether he was intending to ‘groom’ her for some future attempt.
25. Very recently, sexual offending involving young victims was described as being alarmingly prevalent in the Kingdom.^[1] With the possible exception of the relatively recent rise in serious drug related offences, sexual offences, especially against the young are one of the most damaging ills to the moral and legal integrity of any society. It is even more insidious when it occurs within families. Depraved, and often alcohol and/or drug fuelled sexual assaults not only damage the victims, sometimes horrifically and permanently, they also have the potential to strain if not destroy family relationships (as demonstrated here) and thereby threaten the very fabric of Tongan society, the bedrock of which is the love and value of family ties.
26. To achieve the sentencing aims of denunciation, protection and deterrence in respect of sexual offending such as the present, involving an adult offender and a young or adolescent victim, the Court will almost always be compelled to impose significant prison terms within the maximum penalties prescribed by Parliament.
27. Having regard to the above considerations, the maximum penalty of five years imprisonment, the comparative seriousness of the offending, the impact on the victim and the Defendant’s lack of remorse, I consider an appropriate starting point for the more serious offending itself in count 1 to be two years imprisonment. However, for the breach of trust occasioned by the Defendant assaulting his step-daughter of many years, I add another year making a total starting point of three years. On count 2, the appropriate proportional starting point is 2 years imprisonment, to be served concurrently with the sentence on count 1.

Mitigation

28. The only mitigating factor is the Defendant's lack of previous (recent or relevant) convictions.
29. Doubtless, alcohol influenced his actions that day, including the cavalier way he sent his wife out again on the second occasion, knowing full well she was unlikely to be gone for very long. Given the Defendant’s long history of alcohol abuse and domestic violence stemming from it, I do not consider the influence of alcohol on the day in question to be of any mitigation whatsoever in terms of the Defendant’s culpability. If anything, his ongoing alcohol abuse has been fermenting a tragedy waiting to happen. As the presentence report notes, long term alcohol abuse (and his admitted drug taking) has rendered the Defendant a threat to women and girls. In my view, the Defendant’s now demonstrated preparedness to satisfy his sexual desire through predatory conduct belies Mr Tu'utafaiva’s attempt to soften the probation officer’s characterisation of the Defendant and his behaviour. Had this offending not been reported so that now the Defendant must face the consequences of his behaviour, there is little basis for thinking that he would have changed of his own volition or that he would not have gone onto commit possibly even more serious crime.
30. In light of the nature of the offending and the Defendant’s breach of trust, I do not consider it appropriate in this case to allow any discount solely on account of the Defendant’s lack of previous convictions. However, I do propose to take that into account on the issue of suspension.

Suspension

31. The Defendant and his wife ask for leniency as he is the sole breadwinner. The "breadwinner submission" is one that is regularly raised in the courts of the Kingdom but it carries little weight in determining whether an accused should be sent to prison. Imprisonment will fall hard on the family the Defendant should be supporting, but this Court has commented more than once that such a factor is not the responsibility of the Court: Tukuafu v Police [2001] Tonga LR 151.^[2] Such hardship cannot be an overriding mitigating factor in cases where the objective gravity of the offences and the presence of aggravating factors call for a custodial sentence: Rex v Vake [2012] TOCA 7.^[3] Further, the fact that the offender is the breadwinner for his family, is not, and is rarely likely ever to be, on its own, a proper reason for suspending a sentence. It may be accepted that, if the Defendant goes to prison, his family will suffer. That, unfortunately, is an all too frequent consequence of criminal offending: R v Motulalo [2000] Tonga LR 311 at 314.^[4]
32. Of the considerations suggested by the Court of Appeal in Mo'unga v R [1998] Tonga LR 154 at 157, the only one which favours some period of suspension here is the Defendant’s lack of recent criminal convictions. Whether he might take any opportunity for rehabilitation is unknown. Frankly, I consider it unlikely, at least until he overcomes his drug and alcohol problems.
33. To that end, and notwithstanding any reservations about the Defendant’s aptitude for rehabilitation, I will order that the final 12 months of his sentence be suspended on conditions.
34. The resulting two years imprisonment to be served:
    • (a) is an appropriate response to the relative gravity of the offending and the Defendant’s breach of trust;
    • (b) is consistent with the comparable sentences presented by the Crown;
    • (c) reflects the Court’s strident denunciation of this type of offending and the need for specific and general deterrence; and
    • (d) may assist the victim’s healing process by affording an opportunity for reconciliation with her mother and siblings.

Result

35. The Defendant is convicted on both counts and sentenced to imprisonment for:
    • (a) three years on count 1;
    • (b) two years on count 2, to be served concurrently with the sentence on count 1.
36. Pursuant to s.24(3) of the Criminal Offences Act, the final 12 months of the effective head sentence of three years will be suspended on conditions that during the period of suspension, the Defendant shall:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within 48 hours of his release from prison; and
    • (d) undertake and complete courses on alcohol and drug awareness and domestic violence as directed by his probation officer.
37. 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
5 June 2020	LORD CHIEF JUSTICE

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^[1] R v ‘Vailea & Pepe [2020] TOSC 27
^[2] 'Eukalite v Police [1994] TLR 80 per Ward CJ
^[3] Referred to by Paulsen LCJ in Rex v Fainga'anuku [2018] TOSC 16 at [33].
^[4] Referred to in Rex v Vake [2012] TOCA 7 at [20] and Fainga'anuku at [32].