Rex v Afeaki [2020] TOSC 4; CR 208 of 2019 (7 February 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY	CR 208 of 2019
CR 208 of 2019
REX -v- UIKELOTU AFEAKI

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Mrs Lui for the Prosecution Mr F. Vaihu for the Accused
Date of sentence:	7 February 2020

1. On 6 December 2019, the Defendant pleaded guilty to two counts of serious indecent assault. Pursuant to s.124 the Criminal Offences Act (“Act”), the offences carry a maximum of five years imprisonment.

FACTS

2. The Defendant is 16 years of age, a Form 4 student of Tupou College.
3. On 25 July 2019 (when he was aged 15) around 9 AM, the complainant, whose name shall be referred to herein simply as "M", left her home to go for a run. As she was running northward towards Hihifo Road, a white van drove past her going southward. It was being driven by the Defendant. He was running an errand for his family. He turned the van around and followed M. He asked her where she was going and asked her repeatedly to get in the van. She told the Defendant that she was exercising and that she was okay. The Defendant eventually drove past M and stopped the vehicle in front of her. He got out of the vehicle and walked over to M and started groping her breasts outside her clothing. He asked her whether ‘she could fuck him’. She declined. The Defendant continued to move towards M trying to kiss her using his body to push her further towards the bushes. He then groped M's buttocks outside her clothes. The Defendant then began to do something with his trousers. M yelled for help. As a result, the Defendant stopped what he was doing and M reached for her mobile phone in her backpack. The Defendant ran towards his van repeatedly telling M that it was okay before he drove off. M reported the incident to the police the same day. The police later arrested the Defendant and initially charged him with one count each of attempted rape, indecent assault, common assault and driving without a driver’s licence. The Defendant cooperated with police and admitted to the offending in his record of interview.

SUBMISSIONS

Pre-sentence report

4. The Defendant is the eldest of eight siblings. His father supports the family through their plantation and fishing. The Defendant helps his father in both activities. He also helps his mother with domestic duties. His parents are reported to have been very surprised to hear of what their son had done. They describe him as a quiet person who does not go out and does not mingle with local boys. He only goes out to play rugby during his leisure time. He does not drink alcohol nor does he smoke.
5. The Defendant has an average academic record and this year his parents planned to enrol him in technical classes. However, he is gifted at rugby and other sports. It was hoped his rugby talent might eventually bring financial contribution to his family.
6. The Defendant has no previous criminal convictions.
7. The Defendant is a devoted member at the family's local church youth.
8. The Defendant is said to have shown genuine remorse and deeply regrets his offending. He is ashamed of the way he behaved towards the victim. He acknowledges that he has brought shame to his family, his village, his church and the reputation of Tonga as "the Friendly Islands".
9. He has apologised directly to the victim. She has accepted his apology.
10. The offence was not planned and appears to have been a spur of the moment reaction to seeing the victim in an isolated place. The offending is said to be out of character.
11. The Chief Probation Officer opines that the Defendant has learned his lesson and that he is unlikely to reappear again in court in the future. Whilst the report writer acknowledges that the seriousness of the offence means that imprisonment is inevitable, he urges the court to consider the Defendant's age and his future and asks the court to consider probation so as to give the Defendant a final chance and also to leave open the opportunity to make use of his talent in rugby.

Victim impact report

12. The victim is 51 years of age. During the second half of 2018, she migrated from New Zealand to Tonga to take up a position as a lecturer at the University of the South Pacific. She had therefore been living in Tonga for only about nine months when the offences took place.
13. The victim told the author of the report that she had been advised by some of her friends prior to the incident not to go out running by herself, but that she did not heed their advice. She therefore partly blames herself for what happened. She is now more cautious about going out running by herself. She is experiencing difficulties in her interactions with the opposite sex. She does not like to be physically touched.
14. While the author did not recall whether the victim mentioned that the Defendant had apologised to her, she did state that the Defendant's father or another relative had apologised on his behalf and that she had accepted his apology. She asked whether the Defendant and his family were getting any support or counselling.
15. Whilst the victim wants the Defendant to appreciate the seriousness of his offending, at the same time, she is concerned about his future and the effect this might have on him and his family. She expressed the view that she did not want the Defendant to be imprisoned and that she would like him to undergo counselling to help them realise the extent of his offending and to help better himself.

Crown

16. The Crown submits the following as aggravating features:
    • (a) the attack has adversely affected the victim psychologically and in her relationships with others;
    • (b) the Defendant took advantage of the victim as she was running alone;
    • (c) the victim is of New Zealand ethnicity and citizenship and has only recently moved to Tonga; and
    • (d) had the victim not reached for her phone at the time that she did, it is possible that the offending could have been more serious.
17. The Crown submits the following as mitigating factors:
    • (a) the Defendant is a first-time offender;
    • (b) the Defendant is a young offender;
    • (c) he pleaded guilty at the earliest opportunity;
    • (d) his family has apologised to the victim; and
    • (e) the victim has sought the court’s leniency in sentencing the Defendant.
18. The Crown refers to a number of comparable sentences.
19. In Mo’unga (unreported, Supreme Court, CR 33 of 2017, 13 July 2017), the accused pleaded guilty to several counts of sexual offending including serious indecent assault of a 16-year-old girl by touching her vagina outside her clothes. The Defendant there was a first-time offender, was cooperative and showed remorse. He was 46 years of age at the time of his sentence. He was convicted and sentenced to 12 months imprisonment for the indecent assault as a component of an overall sentence totalling 15 years with the final two years suspended on conditions.
20. In Hu’akau (unreported, Supreme Court, CR 107 & 108 of 2017, 16 July 2018), a husband and wife were found guilty of several counts of sexual offending, including serious indecent assault. That count involved the victim being locked inside a storage room at a school where the male Defendant kissed her on the mouth and fondle her vagina outside her clothes. That offender had previous convictions involving indecency. He was 56 years old at the time of the offending. The victim was 14 years of age. On that count, the male Defendant was sentenced to 3 years imprisonment without suspension.
21. In Soafa (unreported, Supreme Court, CR 5 of 2016, 23 May 2016), the Defendant was an 18-year-old male who pleaded guilty to one count of attempted rape, one count of serious indecent assault and one count of housebreaking. The victim was a 24-year-old Japanese national volunteer. The Defendant attacked the victim, forced her to the floor, punched her face, pulled her hair and pushed her onto the sofa. He squeezed her neck and held her mouth to stop her from screaming. He forced her to the ground, pulled down her pants and underwear and tried to insert his penis into her vagina but she struggled and pushed him away. The Defendant was interrupted by persons walking by who heard the victim screaming. He was later arrested and admitted to the offending. He was a first-time offender and came from a broken family. He was remorseful and attempted to apologise to the victim but she did not accept his apology. Shortly after, the victim returned to Japan. On the count of serious indecent assault, for touching the victim’s vagina without her consent, the Defendant was sentenced to 18 months imprisonment to be served concurrently with his sentence for attempted rape of four years with the last 12 months suspended on conditions.
22. While the Crown acknowledges that the above cases were more serious than the instant, it nonetheless offers them as some guidance.

Defendant

23. The submissions on behalf of the Defendant largely mirror that reported in the pre-sentence report.
24. In relation to the offending, it is submitted on behalf the Defendant, amongst other things, that "he did not plan this and it just happened when he saw the victim running" and that he was "totally out of his mind thinking about doing something to the victim in this isolated place".
25. In relation to the Defendant's talent in sports, it is said that he has been offered scholarships to study and play overseas pending the result of this case. No documentary evidence of any such offers has been provided.
26. Counsel for the Defendant submits that consideration be given to orders pursuant to section 204 (1), (2) and (3) of the Criminal Offences Act. It is submitted that "with a conviction for sexual offences this young man's life ... is finished. He has a bright future and a life ahead of him. His family can pay a fine and compensation if your Honour is minded to grant this prayer."
27. Two letters of support for the Defendant have been submitted.
28. Reverend Samiuela Fonua of the Free Wesleyan Church confirmed that the Defendant has been a student at Tupou College since 2015 and was enrolled in Form 4 for the first part of 2019. He described the school as focusing on the ‘development of students to become strong and highly committed Christians’. The school’s various programs include many ‘character formation programs’. He wrote that students from the College are ‘well equipped with skills and qualities that are crucial for today's challenges’. More specifically, he wrote of the Defendant being a member of the school sports academy where he was selected for the National Under 15 rugby team to tour New Zealand last year, but unfortunately, due to unforeseen circumstances, he was not able to travel.
29. It must be said that the Defendant’s offending here suggests that, for him at least, the school’s aspirations of developing him into a ‘strong and highly committed Christian’ have, so far, been unsuccessful.
30. Pastor Similoni Tufulele first met the Defendant in 2014. He described the Defendant as quiet, spending most of his time after school caring for his younger brothers and sister and sometimes doing his father's work when the father was in New Zealand working. He commended the Defendant for his performance in the church’s functions and activities. He also remarked about the Defendant’s sporting abilities, particularly, in rugby league.
31. It is not apparent from either letter, that either author is aware of the offending.

STARTING POINT

32. The submission on behalf of the Defendant that he be discharged without conviction is, in my view, misconceived.
33. In Rex v ‘Ala (unreported, Court of Appeal, AC 19 of 2018, 17 April 2019) at [10] to [12], the Court of Appeal explained the approach to be taken in determining whether to grant a discharge without conviction under s. 204 of the Act:
    • (a) Firstly, the court must assess the seriousness of the offending including the gravity with which it is viewed by Parliament along with all aggravating and mitigating factors relevant to the particular case before it.
    • (b) Secondly, the court must consider the character and circumstances of the offender including any previous offending, the effect of the entry of a conviction on his career, his finances, his reputation, any civil disabilities that flow from the entry of a conviction as well as any indirect consequences.
    • (c) Thirdly, the court must be satisfied that the consequences of entering a conviction are out of all proportion to the gravity of the offending.
    • (d) The court must stand back and consider whether in all the circumstances of the case granting of a discharge without conviction is the appropriate result.
    • (e) The circumstances where it will be appropriate for the court to grant a discharge without conviction will rarely arise and the court should exercise its discretion sparingly. It will not be sufficient that an offender is generally a person of good character, has no prior convictions, is a young person or the victim has forgiven them. If it were otherwise, discharges without conviction would be routinely given.
    • (f) The court will not accept mere speculation about the consequences of the entry of a conviction. It can only act upon evidence and the offender will need to provide proof to satisfy the court that there is a real and appreciable risk that adverse consequences will ensue.
34. The nature of the offence is one of predatory and depraved sexual conduct. Parliament has set a maximum penalty of 5 years imprisonment. By comparison, s. 120 – attempted rape – carries a maximum of 10 years imprisonment. Across the spectrum of criminal offences and their respective legislative penalties, the present offences are, in my view, to be regarded as of significant gravity.
35. While the offending may be toward the lower end of the spectrum for crimes of this kind, it is nonetheless behaviour which is abhorrent to the community involving an attack on an innocent woman going about her lawful activities. No member of society deserves to be set upon in broad daylight in the way in which the Defendant did here. It was no doubt a very frightening experience for the victim and has lasting consequences. Equally, no doubt, had she not called for help and had the awareness to reach for her mobile phone, the Defendant may well have continued on to commit far more serious crimes.
36. I am mindful though that while he was initially charged with attempted rape, the Defendant was ultimately indicted and pleaded guilty to the lesser charges of serious indecent assault. Further, I am inclined to accept the Defendant’s submission that this was a spontaneous attack without premeditation. I consider the offending to be largely if not entirely attributable to the Defendant's likely emotional and sexual immaturity, demonstrating a lack of responsibility, consideration and control.
37. I take into account the Defendant’s lack of any previous convictions, cooperation with the authorities, early plea and remorse.
38. While there is no evidence as to the likely effect of the entry of a conviction on his career, finances, reputation, civil disabilities or indirect consequences that might flow, I accept that having a criminal record for this type of offence may potentially adversely affect his employment, education and travel prospects. However, I am not satisfied that the consequences of entering a conviction are out of all proportion to the gravity of the offending.
39. The only asserted specific risk of adverse consequences for the Defendant’s future is in relation to his prospects of playing rugby league at a high level, possibly professionally. However, there is no proof before me of the reality or extent of any such prospects.
40. In all the circumstances, I do not consider that granting of a discharge without conviction would be an appropriate result.
41. The comparative sentences referred to by the Crown suggest a range of 12 months to 3 years imprisonment, although the sentences for serious indecent assault there were part of a number of offences in each case.
42. Apart from the submissions in relation to s. 204, the Defendant has not suggested a different range or any other sentencing option.

Youth

43. Of all the relevant factors referred to above, the one which causes the most difficulty in determining the appropriate sentence, is the Defendant’s age.
44. In December 1995, Tonga acceded to the Convention on the Rights of the Child. Under the Convention, a child is defined as any person under the age of 18 years. Article 37(b) 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."

45. The Convention was referred to in R v Valu [2008] TOLawRp 10, where the accused, who was 13 years of age, pleaded guilty to seven separate offences involving housebreaking and theft. The first offence had been committed when the accused was with the Youth Diversion Scheme under which he had been placed in the custody of a supervisor for three months to allow him to complete appropriate rehabilitation progress. Prior to being referred to diversion, the accused had been placed by a Magistrate under the care of a Salvation Army officer for a few weeks but he had run away. The last offence had been committed three days after he had been granted bail in the final attempt to keep him out of prison. Andrew J found that the accused had become incorrigible. He had been given every chance to keep out of jail and there was no juvenile detention centre or other institution that could take him. Society could no longer be put at risk and as a last resort he ought be sentenced to imprisonment not only as a matter of public deterrence but simply for the protection of the community. Taking into account the accused's guilty plea, his background and the provisions of the Convention, the accused was sentenced on each count to 18 months’ imprisonment to be served concurrently, with the final six months suspended for two years upon conditions.
46. The Defendant here has not displayed the sort of ‘incorrigible’ behavior that led Andrew J to imprison Valu. However, the offences here are more serious, and relate to a person, not merely property.
47. 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. 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 that case, the relevant Defendant was 16 years of age when the offences of housebreaking and theft were committed with others. There, Ford ACJ balanced the competing considerations presented by the Convention and the legislative penalties by sentencing the Defendant to three years imprisonment but acceded to a recommendation by the probation officer that the sentence be fully suspended upon conditions including 120 hours community service.
48. I propose to follow a similar course.
49. The sentence must carry a significant component for specific and general deterrence. A strong message must be sent to the community, which will be supported by all fair-minded members of society, that this kind of behaviour will not be tolerated and that those who decide to engage in it for their own wanton and depraved purposes are likely to face significant prison sentences in return.
50. Having regard to all the circumstances of the offences, as discussed above, I consider the appropriate starting point is 18 months’ imprisonment.
51. Having regard to the Defendant’s cooperation with the police and early plea of guilty, I discount the starting point by one third, or six months.
52. The Defendant is therefore sentenced to 12 months imprisonment.

SUSPENSION

53. Section 24(3) of the Act gives the Court jurisdiction to suspend the whole or part of the sentence for any period up to three years but is silent on the criteria to be considered in deciding whether a sentence should be suspended. The Court of Appeal in Mo’unga v R [1998] Tonga LR 154 approved the approach of Eichelbaum CJ in R v Petersen [1994] 2 NZLR 533 (CA), which may be summarized as:
    • (a) a suspended sentence is intended to have a strong deterrent effect;
    • (b) if the offender is incapable of responding to a deterrent, it should not be imposed;
    • (c) the circumstances in which a suspension of sentence may be appropriate include:
      • (i) where the offender is young, has a previous good record, or has had a long period free of criminal activity;
      • (ii) where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself;
      • (iii) where, 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; and
      • (iv) where there has been cooperation with the authorities.
54. The Court of Appeal saw no reason why that approach should not be followed in Tonga. It has been applied in a number of decisions since, including, recently, Rex v Fainga'anuku [2018] TOSC 16.
55. The Crown submits that having regard to the considerations discussed in Mo’unga, the Defendant is eligible for a fully suspended sentence. For that reason and the Convention and approach to it discussed in Vea, I agree.
56. Each of the positive factors referred to in Mo’unga apply in the Defendant’s favour here. There is good reason to expect that, with the support of his family, school and church, he may be rehabilitated, and that he will not offend again. I also note the exceptional generosity of the victim in her expressions of concern for the Defendant and his family.
57. I will therefore order that the sentence be wholly suspended on conditions set out below.
    

RESULT

58. The Defendant is convicted and sentenced to imprisonment for 12 months.
59. The sentence shall be fully suspended, for a period of two years, and on conditions that the Defendant:
    • (a) not commit any offence punishable by imprisonment during the period of suspension;
    • (b) be placed on Probation during the period of suspension;
    • (c) report within 48 hours to the offices of the Probation Service at Fasi for registration and thereafter as directed by his Probation Officer;
    • (d) perform 40 hours of community work under the direction of Probation;^[1] and
    • (e) undertake and successfully complete a life skills course as directed by his Probation Officer during the period of his suspension.
60. Should the Defendant fail to comply with any of these conditions during his suspension, he may be required to serve his prison sentence.

Order restricting publication

61. Pursuant to s.119 of the Act, I order that the identity of the complainant shall not be published in the Kingdom in any written publication available to the public or be broadcast in the Kingdom.

NUKU’ALOFA	M.H. Whitten QC
7 February 2020	LORD CHIEF JUSTICE

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^[1] Given the Defendant’s interest in rugby league, consideration may be given to arranging him to volunteer with the NRL’s Voices Against Violence program here in Tonga.