R v Tu'i [2020] TOSC 54; CR 106 of 2020 (21 July 2020)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 106 of 2020

REX

-V-

SIALE TU’I

BEFORE HON. JUSTICE NIU

Counsel : Mrs. S. ‘Eliesa for the Crown.
Mr. S. Fili for the accused.

Probation Report: by Tito Kivalu 1 July 2020.

Submissions : by Ms. ‘Eliesa on 7 July 2020.

by Mr. Fili on 14 July 2020.

Sentencing : 21 July 2020.

SENTENCING

[1] Siale Tu’i, you pleaded guilty before me on 2 June 2020 to two offences with which you were charged.

Count 1 - serious indecent assault contrary to S.124 (1) and (3) of the Criminal Offences Act, in that you indecently assaulted the complainant girl when you sucked on her breasts without her consent.

Count 2 - unlawful imprisonment contrary to S.114 of the Criminal Offences Act, in that you unlawfully detained the complainant girl in a room in your house without her consent.

Summary of facts

[2] The summary of facts provided by the Crown states that you are 66 years old and the girl was 15 years old. She walked on the road by your house and you called her to come and get something for you in your house. Thinking that you needed help and trusting that you would do her no harm she came into your house and you asked her if she would write down her Facebook name and she did. When she finished you told her to come with you to a room to get some money. When she went into the room you then sat her on the bed and pushed her back on it and then pulled up her shirt and under singlet and sucked on her breast. The girl cried out and was yelling and her sister who was walking by heard her and came and looked through the window. You saw that girl and you then released the girl and told her to leave and she did.

[3] The girl told her mother what you did and they lodged the complaint of the girl with the police the same day.

Cooperation with the police

[4] When the police came and arrested you, you cooperated and you readily confessed what you had done to the girl.

No previous conviction

[5] In all your 66 years you have had no conviction for any criminal offence.

Probation report

[6] I directed that a probation report be prepared about your circumstances and one was made by probation officer, Tito Kivalu, after he had interviewed yourself, your wife, your partner, the town officer, the complainant girl and her mother.

[7] He said that your parents had 3 children, of whom you were the second eldest. Your parents separated and you were then raised by your mother’s parents. He said that you did enter and studied at Beulah College but due to financial difficulties you left college at Form 1 level.

[8] He said that in 1974 at age 20 you joined the crew of a fishing boat which fished around Tonga, and then you attended the ship’s master course at the Fokololo Maritime Institute and became a Boat Master in 1994. You were then master of fishing vessels of fishing companies in Tonga as well as in Fiji and American Samoa. You then retired in 2004.

[9] He said that you were married and you had 5 children by your marriage, 3 of whom now live overseas and 2 live in Tonga. In about 2004 you then lived with another woman and had 2 children by her and you are now living with her.

[10] He said that you went with the woman to New Zealand in 2005 and remained there as over stayers until you were both deported back to Tonga in 2011.

[11] He said he asked you and that you told him that the reason you had asked the girl to write down her Facebook name was so that you would connect her to one of your male friends in Australia so that she could get money from him.

[12] He said that you were well respected in the village but after you left your wife and lived with the other woman you lost the respect of the people, especially the family of your wife in the village.

[13] He said that you have shown remorse for what you did.

Victim impact report

[14] Tito Kivalu also did a victim impact report on the complainant girl. He said that the girl’s mother told him that the girl appears to have changed in her behavior as a result of what happened to her, that she now sleeps a lot and wants to stay alone at home. She says that the girl just sits and stares and that she has also told her that she wants to leave school altogether.

[15] He said he spoke with the girl himself and she tells him that she is still afraid of what you did to her, especially when she sees you almost every day as you live near where she lives. She says that she turns her face away and walks away quickly. He said that she is ashamed to be with her friends. Even at school she seems not to be able to concentrate because she is thinking of what you had done to her. She would just sit and stare at nothing.

Recommendation

[16] He recommends that you be sentenced to imprisonment but with a partial suspension during which you serve 48 hours community service and live where directed.

Crown submissions

[17] Ms. ‘Eliesa for the Crown submits that there are aggravating features against you, namely:

(a) you were in a position of trust because you were 66 years and the girl looked up to you as a father, and that you breached that trust;

(b) you planned what you wanted to do to her and you deceived her;

(c) the girl is still haunted by the evil act you did to her;

(d) you have not shown any remorse to apologise to her or to seek her forgiveness.

At the same time, she says that there are mitigating features in your favour, namely:

(a) you pleaded guilty and have saved the girl from the embarrassment of giving evidence in Court and re-living what you did to her;
(b) you have no previous criminal conviction; and
(c) you cooperated with the police.

[18] She has referred me to 3 cases which may be compared to your case:

(a) R v PF (CR 212/2019) where that accused touched the victim’s vagina (Count 1) and fondled her breast outside her clothing (Count 2). He pleaded not guilty but was found guilty after a 3 day trial. He was the girl’s stepfather. He had a previous conviction for housebreaking 26 years before then. For count 1, he was sentenced to 3 years imprisonment and for count 2 he was sentenced to 2 years imprisonment, both sentences to be served concurrently, but that the third year of count 1 to be suspended (on conditions) so that he would only serve 2 years.

(b) R v Felemi & Latu (CR 128 & 129/2018) where the female accused was the mother of the 13 year old girl and the male accused was the partner of the female accused. On 4 separate occasions, whilst the female accused was watching, and thereby abetting it, the male accused licked the girl’s vagina on the first occasion, fondled and sucked the girl’s breasts and licked her vagina on the second occasion, licked her vagina, sucked her breasts and rubbed his penis outside her vagina on the third occasion, and licked her vagina, fondled and sucked her breasts and rubbed his penis outside her vagina on the fourth occasion. They both pleaded guilty. The male accused was sentenced to 4 and a half years imprisonment with the last 6 months being suspended.

(c) R v Tu’imotuliki (CR 169/2019) where the accused was a 77 year old man and the girl was 15 years old. The girl was his granddaughter. He was charged with serious indecent assault in that he sucked the girl’s breast without her consent. He pleaded guilty. He had a conviction in 1979 and it was not for sexual offence, and he was bedridden and in poor health. He was sentenced to be of good behavior for 12 months.

[19] Ms. ‘Eliesa recommends that you be sentenced to 2 and a half years imprisonment altogether but that part thereof may be suspended.

Accused submissions

[20] Mr. Fili, on your behalf, has pointed out that despite your unfortunate circumstances when your parents separated early in your life, and you had to leave school at Form 1 at college, because of financial difficulty, you maintained a trouble free and productive life by becoming a crew in a fishing boat and then go on to be a fishing boat master and to have a family and to provide for them, and that you have maintained a clean record with the police in all your 66 years of life. He says that that deserves serious consideration.

[21] He also says that you had participated in the village activities by being a member of the water committee whilst you were a boat master, and that in 2018 and 2019 you were the leader in the village rugby team committee when the team became the winner of its competition.

[22] He also says that you participate and help with the Church of Tonga in your village of which you are a member.

[23] He says that you have apologised to the girl’s mother and to the girl and that they tried to have the charges withdrawn but that the Crown has insisted to proceed with them.

[24] He says you are remorseful, as is evident by your guilty plea and your cooperation with the police.

[25] He says and submits that because of your advanced age you be treated the same as the case of the 77 year old man but that you be sentenced to imprisonment instead but to be fully suspended.

Consideration:

Seriousness of the offence

[26] Sexual offences are serious offences in Tonga, as they are elsewhere in the world, and they are more so when they are committed upon young persons. In this case, the girl was 15 years of age. And S.124 of the Criminal Offences Act, under which your act is made an offence, provides that the offence of serious indecent assault is punishable by a term of imprisonment for any period not exceeding 5 years. Next to serious indecent assault is the offence of rape which is punishable by a term of imprisonment for any period not exceeding 15 years. That is how serious a sexual offence is in Tonga.

[27] Those punishments are aimed at protecting women and young children against men and physically stronger persons, and even persons who are related to and who have authority over the young children, including persons in whom the young children have a trust.

[28] The cases referred to by Ms. ‘Eliesa demonstrate the seriousness with which the Courts have regarded this type of offence, and I have to disagree with Mr. Fili on his reference to the case of the 77 year old man as appropriate to be followed in your case. The reason why that man was not sentenced to imprisonment was because of his ill-health and the fact that he was bed-ridden, that is, no longer able to get up off the bed. He could not very well serve a sentence of hard labour, let alone term of imprisonment without 24 hour bed-side care. He was therefore correctly sentenced to be of good behavior only and not suspended sentence, because a suspended sentence would not be able to be enforced against him.

Trust and damage

[29] As stated above, you were in a position that was such that the girl looked up to you as a father, a person in whom she could rely, in whom she could trust. That was shown by her unquestioned obedience to your call for her help. She was happy to come to your help.

[30] You abused that trust she had in you. You used that trust to get her to come to you, into your bedroom, in order that you could satisfy your own sexual desire, at the very cost of damaging her treasure and pride as a woman – her innocence, her honour and dignity, and her sense of value of herself.

[31] The probation officer has confirmed that in his report. The girl has suffered and will continue to suffer from the act which you have committed upon her, because of the loss you have inflicted upon her. She has lost interest in her studies and has lost confidence in herself among her friends. She just wants to be alone. She has indeed lost her pride, her honour and dignity and her sense of value of herself.

Remorse, guilty plea, clean record

[32] When I consider such a heavy loss to the girl, all your good deeds in the past, your good clean record, your cooperation with the police, your guilty plea and your remorse, all pale and fade away, because nothing you can do can ever restore to the girl what she has lost since that day.

Difficulty of comparison

[33] When viewed like that, and which I consider I have to do in all sexual offence cases, it becomes irrelevant to make any fine distinction as between the acts committed in each of the 3 cases referred to and the act that you committed in your case.

[34] It really depends on the facts of each particular case and the damage caused to the victim in each case.

Appropriateness

[35] I also consider that your sentence should, as far as it can do, also help to heal the mental and emotional injury which you have caused to the girl. At present the girl has difficulty because you are living so close to where she lives and she has become afraid to go anywhere because of her fear that she might see you. She also thinks that the least punishment that should be given to you is imprisonment.

[36] I have to accept that she has and she is entitled to her sense of justice as the victim of your foul act upon her. And now she has conveyed that wish to the Probation Officer and the probation officer has conveyed it to me, I cannot very well ignore it. If I disregard it, then who else can she trust would give her what she considers as justice.

[37] As I have intimated, I consider that I have to impose and sentence you to a sentence of imprisonment.

Conclusion and orders

[38] Having now considered all the foregoing matters and allowing for both the aggravating and mitigating features as I have stated, I sentence you as follows:

Count 1: For the offence of serious indecent assault, you are sentenced to 2 years imprisonment commencing today but that the last 6 months of that sentence be suspended for 1 year from the date of your release subject to the condition that you do not commit any offence punishable by imprisonment during that one year.

Count 2: For the offence of unlawful imprisonment, you are convicted and discharged.

[39] I also order that no publication shall be made by any person by any means in any media of the name or of any description or information of the complainant girl by which her identity may be revealed.

Niu J

NUKU’ALOFA: 21 July 2020. J U D G E