Rex v Maamaloa [2020] TOSC 6; CR 113 & 114 of 2019 (30 January 2020)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NEIAFU REGISTRY

CR 113 & 114 of 2019

R E X -V- SOSAIA LATU MAAMALOA (CR113/2019)

REX -V- FINE MAAMALOA (CR114/2019)

BEFORE: HON. JUSTICE NIU

Counsel: Ms. L. Macomber for the Prosecution
Ms. S. Vaipulu (in place of Mrs L. Kuli) for both accused

Probation Report: filed 20 January 2020
Submissions: filed by Ms Macomber 22 January 2020
filed by Ms Vaipulu 27 January 2020
filed by Ms Macomber 28 January 2020
Sentencing: 30 January 2020, Neiafu, Vava’u

SENTENCING

[1] Siosaia Maamaloa (Saia) and Fine Maamaloa (Fine), you now appear before me today for sentencing for the offences of which I have convicted you on 14 December 2019.

Probation Report

[2] A probation report was directed and it was prepared after interviews were held with the both of you and with your daughter, Mafi, and Fine’s sister, Meleane, and with the town officer of Makave. Letters of support for you were written by your said daughter, the town officer and by your senior pastor, and attached to the report.

[3] You, Fine, are now 35 years of age and said to have grown up in Popua, Tongatapu, and left school at form 3 at ‘Apifo’ou College, and married in 2000. You learnt the trade of handicraft making from your parents and you carried that on together with your husband, Saia, up to now. You informed the officer that during the busy season, you jointly earn up to $1,000 per week.

[4] You have 8 children from your marriage, the eldest child being Mafi who is 19 years old, and the youngest is 6 years old. Except for Mafi, who is already married, all the other 7 children are still dependent upon you both for their education and maintenance.

[5] The probation officer stated that the children “will sadly face the consequences of their parents’ mistake” and that it “is important to consider that their children will be severely affected due to the separation from them”. She accordingly recommended a prison sentence imposed upon you, Fine, the mother of those children, be fully suspended on conditions that lengthy hours of community work be carried out, not to commit any offence during the suspension, not to consume alcohol or drug during the suspension, undertake the alcohol and drug program and appropriate sexual violence counselling of the Salvation Army.

[6] However, I note that the probation officer stated that both you Saia and Fine have shown no remorse at all, and that you both still deny the offences, and your new counsel, Ms Vaipulu, has stated in her submissions in mitigation on your behalf, that you both still deny the charges despite the facts which I have found. The officer stated that no apologies have been made to the complainant because you have both maintained your innocence.

[7] You, Saia, are now 43 years of age. You were born and raised in Hunga, Vava’u, and went to Tongatapu when you were 16 and later married Fine there, then you shifted to Toula, Vava’u, in 2010 and then, Makave, Vava’u in 2017. You were educated until you were 16 years of age. Later on you became a preacher in the Assembly of God Church and you both were active in the Church affairs. But that by late 2018, you both faltered and began drinking bouts which took you both away from home overnight until the next day. It would appear that that began to happen when you had the house at Toula in your care and control. No doubt, that was where you would spend the night drinking, whilst your children remained at your home at Makave, just like the night, or rather, early morning, when you took the complainant there in her intoxicated state.

[8] In respect of you, Saia, the probation officer recommended that your prison sentence be only partially suspended and be subject to the same conditions as those of yours, Fine, except that you, Saia, do not carry out any community work.

Submissions for the Crown and victim impact report

[9] Ms Macomber, for the Crown, has submitted her submissions in respect of the sentences to be imposed upon both of you, the accused. She has also submitted a victim impact report which she herself prepared from telephone conversation she had with the complainant subsequent to your convictions of these offences.

[10] Ms Macomber stated in her report that the complainant told her that during the trial she was very scared and was shaking most of the time during her evidence. She told her that it was a new place for her with new people and that she took a lot of courage to face both you two in Court and relate what you two did to her. She told her that she is still very fearful of both of you, she is fearful that you could easily hurt her or do something to her. She feels that she cannot freely go about as she did before, and she is always looking over her shoulder in case you two may come for her.

[11] Ms Macomber has submitted that you both be sentenced to prison, just like a husband and wife were sent to prison in a case which was sentenced in 2018. This was the case of R v Suliasi Hu’akau and ‘Ofa Hu’akau (CR 107-108/2017). ‘Ofa had been married and had 9 children. She then married Suliasi and lived with him. Two of her daughters, aged 16 and 14 visited them from time to time. It was during those visits that acts of indecent assault and of rape of the 14 year old occurred as well as other indecent assaults perpetrated by the husband upon both of them, with the help and encouragement of the wife. The husband was sentenced to 12 years 6 months imprisonment for all the offences including the rape and the wife was sentenced to 7 years 3 months for all her offences including her abetment of that rape. Suliasi was 54 years old and ‘Ofa was 42.

[12] She also referred to the case of R v Sione Lolohea (CR 58/2016) in which, the accused committed 4 acts of rape, as well as other indecencies, on a 13 year old girl who was also his step daughter. The accused was sentenced to 9 years imprisonment, ie 9 years for the first rape and 6 years for the other acts of rape to be served concurrently.

[13] She also referred to the case of R v Faka’anaua Niutupuivaha (CR 77/2016) in which the accused was convicted of 3 acts of rape on a 13 year old girl. He was sentenced to 9 years and 3 months imprisonment for the rape.

[14] She also referred to R v Filipo Tu’ifua (CR 79/2018) where the accused had committed one act of rape on the victim who had been intoxicated and had passed out. He was sentenced to 4 years 6 months imprisonment with the last 18 months being suspended on conditions that he commit no offence during the period of suspension, not to consume alcohol or drugs during the period of suspension and to attend courses at the Salvation Army on alcohol, drug and violence and sexual abuse on women. He was 20 years of age and a first offender.

[15] She also referred to R v Toetu’u (CR 113/2014), where the accused was 21 years of age and a first offender. He was sentenced to 4 years imprisonment for one act of rape of a girl in a motor vehicle, the last 12 months of which to be suspended on condition he committed no offence and to attend the Salvation Army courses on alcohol and drug abuse and violence and sexual abuse against women.

[16] She submitted that there was only one mitigation factor in favour of both of you, namely that neither of you has had a criminal conviction until now. Against that, she says there are 8 aggravating factors against you, namely,

1. this offending was pre-meditated,
2. alcohol was used,
3. you took advantage of the intoxicated condition of the complainant,
4. you have expressed no remorse,
5. you have sought no apology,
6. you have acted jointly to commit these offences,
7. your actions have instilled fear in the life of the complainant, and
8. you have put the complainant through an entire trial.

Submissions for the two accused

[17] Your counsel, Ms Vaipulu, has submitted on your behalf that the starting point for consideration of your imprisonment sentence is to be 5 years, and not 8 years as submitted by the Crown, and that the prison sentences for each offence be served concurrently with each other, and not consecutively, that is, one after the other. As for you, Fine, she submitted that your prison sentences be suspended or that a non-custodial sentence be imposed on you, such as the probation officer has recommended, in view of the young age of your children. She says that they need you to provide for them, financially and emotionally because it is them who will suffer the most if both of you are sent to prison, through no fault of theirs. She asks for my mercy in sentencing you both.

Further submissions for the Crown

[18] Upon receipt of Ms Vaipulu’s submissions, Ms Macomber sought leave, which I granted, that she file further submissions in reply to Ms Vaipulu’s submissions. In those further submissions, Ms Macomber says that it was clear from Ms Vaipulu’s submissions that not only were you two denying the offences of which you have been found guilty, but that you are also disputing the evidence that the complainant was raped twice by you, Saia. She says that that denial is a very aggravating feature which must be reflected in both your sentences.

[19] She also says that Ms Vaipulu was also wrong to have stated in her submissions that the starting point in the Huakau Case was 5 years whereas the starting point was clearly stated to be 8 years for the male accused and to be 6 years for the female accused, thereby ending up with 12 years 6 months imprisonment for the male accused and 7 years 3 months for the female accused.

[20] As to the plight of your children, if you were both to serve prison sentences, she thinks that an independent report be provided to the Court about the situation with the children, especially as to whether there is anyone to look after them if you both were to go to prison.

Considerations

In considering the sentences I have to impose on both of you for your offences, I have to consider the following matters:

The children

[21] In the probation report, the only comment made by the officer concerning your children is in the paragraph headed “ASSESSMENT”:

“Their children however will sadly face the consequences of their parent’s mistakes. It is important to consider that their children will be severely affected due to the separation from them”.

She does not say that the children will have no one to look after them and provide for them. I consider that if there was no one to look after the children, the probation officer would have been sure to have pointed that out, and the reason that there is no such person, either in your family, Saia, or in your family, Fine, to look after the children, because, in our Tongan family extensions, there is always someone who will take on the responsibility of looking after the children, whether it be because of desertion, divorce, or death of both parents, or be because both parents are or the remaining parent is, sentenced to prison. Instead, the officer simply states that the “children will be severely affected due to the separation” of the parents from them. It is just the fact of separation caused by the imprisonment, and not that no one will look after the children, that the officer found and has stated in her report.

[22] In counsel, Ms Vaipulu’s, submissions, she says in paragraph 11 as follows:

“11. In addition, if both accused are to be sentenced to custodial sentence, their dependent children will suffer as there will not be someone to provide for them financially, emotionally and physically. In the end the children will suffer the most at no fault of theirs.”

[23] That statement, “as there will not be someone to provide for them financially” is a statement of fact, which contradicts the statement of the probation officer that I have explained above, but counsel has not explained, and she should have explained, why that is the fact. Why cannot the grand-parents of the children, the uncles and aunts of the children on both sides provide for the children, even financially? That should have been explained in detail by counsel and supported by affidavit by the person who knows. But counsel did not do that, and I find it hard to believe that that is the case. I do not find and I do not accept that no one will look after the children.

[24] Even if that is the case, and of course I accept it is not the case, a prison sentence cannot be averted by the fact that the accused person is a mother with infant or young children or is a father and breadwinner of a family with young or many children. If that were to be so, such mother and father would freely commit offences and avoid prison sentences by reason of their children, such as is submitted by Ms Vaipulu in the present case. That cannot be right and could not have been intended by law.

[25] That is especially so where the offences committed by the father and mother are serious offences. The offences which you two have committed in the present case are serious.

Seriousness of offences

[26] You, Saia, have committed the serious crime of rape, twice, on the complainant, and you, Fine, assisted and encouraged Saia to rape the complainant. The sentence for rape has a maximum of 15 years imprisonment. It is the third most serious offence in the Kingdom, with murder and treason which is punishable by hanging or life imprisonment being no.1 and manslaughter being no.2 with a maximum imprisonment sentence of 25 years. And next to rape is sodomy, which has a maximum of 10 years imprisonment. You Saia committed sodomy as well as rape on the complainant. And you Fine abetted Saia in raping the complainant. Those offences which you both have committed are serious and they cannot be outweighed by fact that you have dependent children whom no one would look after whilst you both serve your prison sentences. But of course there will be someone, and others, who will look after your children.

Concurrent or consecutive sentences

[27] A concurrent sentence is a sentence which is being served at the same time another sentence is being served, so that in effect, only one sentence is being served. That results in the offender, who has committed two offences, being punished by serving only one of the two offences; he does not have to serve the other sentence at all because it is being served concurrently with the serving of the first sentence.

[28] A consecutive sentence is when the two sentences are ordered to be served one after the other, so that both sentences are served separately. That ensures that the offender is punished for both offences.

[29] The sentencing judge has to weigh up the circumstances of the case and the seriousness of the offences to decide whether a concurrent or consecutive sentence be imposed, in order that the accused is properly punished for the offences which he has committed in accordance with his circumstances and the circumstances of the case.

[30] Consecutive sentences were validly applied in the case of R v Hu’akau as stated above against both the husband and the wife.

No apology and no remorse

[31] An important consideration in sentencing is whether or not the accused has repented and has shown contrition and remorse for what he has done. He thereby demonstrates already a change in his life to become law abiding and not to re-offend in future. It is to his credit that he demonstrates that.

[32] Saia and Fine, you both have shown no contrition or remorse at all. You in fact both deny that you did what I have found as a fact you did to the complainant, and so you have made no attempt to convey any apology to or seek the forgiveness of the complainant for what you have done to her.

[33] That is consistent with your pleas of not guilty and your denial of the charges against you. By doing that, you forced the complainant to come to Court and give evidence and tell everybody what you two did to her, at great difficulty, shame and pain to her, which caused her to cry in public before this Court at times during her evidence. I can only imagine the pain and fear she had to endure to re-live the ordeal you two put her through while you committed the offences on her body that morning a year ago.

[34] I consider that you have maintained your “innocence” of these offence of which I have convicted you because you consider that it is vital and imperative to you that, as long as you so maintain it, members of the public, especially your church members, your fellow trades people, and business people, your friends and your relatives, will continue to accept your innocence of these offences, irrespective of the finding of guilt which I have pronounced, and of the sentences which I will impose upon you.

[35] But what I consider most disturbing is that you both may have convinced or will convince your own 8 children (and 4 adopted children) that you have not committed any of these offences. They will believe you and they will believe that I and this Court have wrongly convicted you of these offences. They will think that this Court is wrong and is bad to have convicted you and to have sent you to prison and away from them. They will become embittered and will hate the police, the prosecution and this Court. Why? Because you do not want to accept that you have done wrong and to explain it to your fellow church members, friends and relatives and especially your children. To you, you consider that nothing and that no one, not even the complainant, matters. You think of nobody but yourselves only.

Rehabilitation

[36] I have to consider whether or not there is a need for rehabilitation, that is, that you need to change your ways and to lead a law abiding life, because it will be in the best interests of the people in society that you so become law abiding. That means that the sentence imposed should allow you to mend your ways and resume life in the community as law abiding person. Rehabilitation is usually applicable in considering the sentencing of young persons who may still be fool-hardy and foolish. It is not usually applied in respect of older persons unless they manifest a habit which needs correction and rehabilitation. However there is always the over-riding consideration of seriousness of the offence committed, and the need for deterrence.

Deterrence

[37] I have to consider also the need for deterrence in the sentence I shall impose. That is determined by the seriousness of the offence committed, and as I have stated already, the offence of rape and sodomy are among the most serious offences in the Kingdom. We must all accept that the law makers of this country, namely, the King and the Legislative Assembly, have decided that it is the law of this country that a man who commits the crime of rape is to be sentenced to prison for a period not exceeding 15 years. They have considered that, with such a sentence, men will be deterred from committing that offence. The same goes for the crime of sodomy. If a man commits those offences he can be sentenced for up to 15 years for the rape and up to 10 years for the sodomy. If the Court does not impose sentences befitting those crimes as laid down by the King and Legislative Assembly, then the purpose and aim of deterrence of those laws are not achieved and the law becomes ineffective. It will result in men committing those offences despite the presence and existence of those serious offences and sentences. Those laws thereby fail to stop the rapes and sodomy because there is no deterrence in sentences issued by the Court.

Sanctity, dignity and honour of the woman

[38] Finally and most importantly, I have to consider the sanctity, dignity and honour of the woman, the very reason why the offence of rape has been made one of the most serious offences of the Kingdom. Every woman is born with a sanctity and dignity and honour that remain with her until she dies, and every man who is a son, a brother, a father, grandfather or husband of a woman will strive to protect and to die to protect that sanctity, dignity and honour of the woman,. And the one thing that removes and destroys that sanctity, dignity and honour in a woman is the act of rape committed upon that woman. That is the reason why the King and the Legislative Assembly of this country and all parliaments in the world have enacted this most serious offence of rape – to protect that most precious treasure, the sanctity, dignity and honour of the woman.

[39] Other countries treasure it just as much as well. They have, Tonga included, made international agreements by which each country undertakes to take appropriate measures to safeguard and protect the women in every country, in order that the sanctity, dignity and honour of every woman in the world is protected and safeguarded.

Conclusion

[40] Having considered all those matters to which I have referred in the foregoing paragraphs, and in the submissions which both counsel have made, as well as the circumstances and facts which I have found proved in this case, I have come to the conclusion that I will fail in my duty as judge of this Supreme Court of Tonga as I have sworn to do namely to uphold the laws of this country, if I do not sentence you both as is befitting the offences which you have both committed upon the complainant, namely in particular, the removal and destruction by both of you of her sanctity, dignity and honour as a woman.

Sentences – Siosaia Maamaloa

[41] Saia, you committed rape twice upon the complainant and I convicted you of those in counts 1 and 2 of your indictment. For each of those offences, I sentence you to 14 years imprisonment, both sentences to be served concurrently.

[42] You also committed sodomy upon the complainant and I convicted you of that in count 3 of your indictment. For that offence I sentence you to 3 years imprisonment, to be served after and to commence at the end of your sentence for the offences of rape of 14 years, ie consecutive to those sentences.

[43] You also committed 4 serious indecent assaults upon the complainant, that is, by putting your fingers into her vagina on 2 occasions and by putting your penis into her mouth on 2 occasions. I convicted you in counts 4 and 6 of serious indecent assault for putting your fingers into her vagina, and I convicted you in counts 5 and 7 of serious indecent assault for putting your penis into her mouth. The maximum sentence for serious indecent assault is 5 years imprisonment. I sentence you to 3 years imprisonment in respect of each of those 4 counts, and I order that you serve those sentences concurrently with each other after you have completed serving your sentences for the rape and for the sodomy.

[44] Finally, you committed one offence of abetting serious indecent assault by prompting the complainant to lick Fine’s vagina. I convicted you of that in count 8 of your indictment. A person who is convicted of abetting an offence is liable to be punished with the same punishment as the person who actually commits the offence abetted is punished. I sentence you to 3 years in respect of that count and I order that it be served concurrently with your sentences for counts 4, 5, 6 and 7 after you have served your sentences for the rape and sodomy.

[45] Accordingly, you will serve imprisonment sentences as follows:

(a) 14 years in respect of the rapes in counts 1 and 2.
(b) 3 years in respect of the sodomy in count 3, to be consecutive to (a).
(c) 3 years in respect of the 4 serious indecent assaults in counts 4, 5, 6 & 7 to be concurrent with (b).
(d) 3 years in respect of the abetment of serious indecent assault in count 8, to be served concurrently with the 3 years in (b) above.

So that the total number of years you will serve is 17 years, less such remissions as you shall earn for good behaviour whilst serving them.

[46] I do not consider that any part of those sentences should be suspended and I make no order for suspension of your sentences.

Sentences – Fine Maamaloa

[47] Fine, I have found you guilty of abetting one offence of rape which Saia committed upon the complainant and I convicted you of it. As an abettor you are liable to be punished just as much as Saia is punished for that offence. I consider that if you had not abetted Saia to do it, Saia would not have committed the rape at all. From what the complainant and the witness ‘Ipeni related in evidence, I am satisfied that you were the one in control. You told Saia to go and buy the meat and you told him to lock the door when he left to do that, and Saia did just that. When ‘Ipeni came to Makave with Hina, he asked Saia if anything happened when you two were taking the complainant home. Saia did not want to tell ‘Ipeni anything. He instead called you. It was clear Saia did not want to say anything in case you would be angry with him for saying it to ‘Ipeni. He therefore called you to come and talk to ‘Ipeni yourself. Also, when you both gave your evidence, you gave your evidence first so that Saia is sure to know what to say when he came to give his evidence, when normally the first accused, who is Saia, is the one to give his evidence first. That is consistent with what happened when ‘Ipeni came to Makave as I have said. I am therefore satisfied that you were the one in control that morning in the house at Toula and afterwards at your home Makave.

[48] I must therefore sentence you for the one count (Count 3 of your indictment) of the offence of abetting rape to 14 years imprisonment as well.

[49] For your serious indecent assaults in count 1, that is, of kissing the complainant’s mouth, cheek and neck, and in count 2, that is, of sucking her breasts, and in count 4, that is, of fondling her vagina, I sentence you to 1 year imprisonment in respect of each count which shall all be served concurrently, after you have served your 14 years imprisonment for the abetment of rape offence.

[50] As for the last count, count 5, that is, your spreading of your legs in order and for the purpose that the complainant to lick your vagina, which she did, at the instruction of Saia, I sentence you to 1 year 6 months imprisonment as well, which you shall serve concurrently with the 1 year imprisonment for the sentences in respect of counts 1, 2 and 4, after the 14 years imprisonment has been served.

[51] So that in all, you will serve imprisonment sentences as follows:

(a) 14 years in respect of the rape abetment for count 3.
(b) 1 year in respect of the serious indecent assaults for counts 1, 2 and 4.
(c) 1 year 6 months in respect of the serious indecent assault for count 5, 1 year of which you will serve concurrently with the 1 year in (b) and the 6 months you will serve after that 1 year is completed.

In total you will serve an imprisonment sentence of 15 years 6 months, less any remissions you may earn for good behaviour whilst serving them. I do not consider that any part of your sentences be suspended and I make no order for suspension of your sentence.

Commencement

[52] You, Saia, will serve a total of 17 years imprisonment, and you, Fine will serve a total of 15 years 6 months commencing today.

Place of imprisonment

[53] I direct that both your imprisonment be carried out here at Vava’u where your children reside or at Tongatapu if the majority of your children would reside there.

Niu J
Neiafu: 30 January 2020 J U D G E