R v Pulotu [2020] TOSC 60; CR 232 of 2019 (25 August 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 232 of 2019
REX -v- SIONE TUI’ONE PULOTU

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Ms Aonima for the Crown Defendant in person
Date of sentence:	25 August 2020

The offences

1. On 27 July 2020, the Defendant was found guilty of two counts of serious indecent assault contrary to s.124(1) of the Criminal Offences Act.
2. The Complainant is a 39 year old divorcee with four children. For two to three years prior to the offences, she and the Defendant had been friends.
3. On a Saturday in July 2018, they were at a friend’s residence with others for a ‘drink up’. After drinking for most of that day and into the early hours of the Sunday, the Complainant fell asleep on a mattress in the house.
4. When it was almost daylight, the Complainant was awoken by feeling someone sucking on her breast and a finger inside her vagina. She initially thought it was her boyfriend touching her, but once she realized it was the Defendant, she yelled at him and pushed him away. The Defendant said he was sorry and that he was drunk. The Complainant got up, grabbed her bag and walked home.
5. She did not report the matter for almost a month. Initially, she did not want her family and children to know about what had happened. However, when she heard that the Defendant was telling others that she had consented, the Complainant decided to press charges.
6. The Defendant did not cooperate with the police. After he was charged, the Defendant approached the Complainant on a number of occasions to apologize. On one occasion, he offered her money to forgive him, which the Complainant did not accept.
7. The Defendant has not had the benefit of legal advice. While he pleaded not guilty upon his arraignment and again at trial, in truth, the Defendant did not have an effective defence. In simple terms, and by his own evidence, he was so intoxicated from the many hours of heavy drinking that day and night, that he could barely remember touching the Complainant. He sought to emphasize that he did not plan the assault and ultimately asked the court for leniency.
8. Section 21 of the Criminal Offences Act provides that intoxication is no defence unless the state of intoxication was caused without the consent of the person charged; or, if by reason of the intoxication, the person was temporarily insane. Subsection (4) requires intoxication to be taken into account in determining intention.
9. As explained during the ex tempore verdict, I was not satisfied on the evidence that any of the exceptions in s.21 applied in the Defendant’s case. Nor was I satisfied that he was so intoxicated as to have been rendered incapable of forming the requisite intention for the assaults which is an implicit element of an offence under s.124 by virtue of the definitions of assault in s.113. The uncontradicted evidence was that the Defendant sucked the Complainant’s breast by pulling aside her top and bra and had placed his hand down inside her jeans and underwear to insert his finger in her vagina. To achieve that, the Defendant clearly demonstrated the requisite awareness and intent even though he may have been drunk when he did it.

Crown submissions

10. Submissions on sentence were directed to be filed by 18 August 2020. On 24 August 2020, one day prior to the listed sentencing date, the Crown filed its submissions. I have had as much regard to the submissions as possible given the limited time available by the Crown's default.
11. The Crown submits that the offending was aggravated by the following:
    • (a) a serious breach of trust given that the Defendant and the victim were good friends;
    • (b) the offending was premeditated in that the Defendant could have slept on the floor but chose to lie on the bed occupied by the victim and which was out of the sight of those outside the house;
    • (c) the victim was asleep and intoxicated and the Defendant took advantage of her;
    • (d) he pleaded not guilty;
    • (e) he did not cooperate with the police;
    • (f) he is not remorseful because, in his probation report, the Defendant still maintains that he was extremely under the influence of alcohol and could hardly recall what he had done;
    • (g) the Defendant has not made any proper apology to the victim; and
    • (h) the victim will live with this for the rest of her life.
12. The only mitigating features submitted by the Crown are that the Defendant is a first offender and the victim has forgiven him.
13. The Crown submitted eight purported comparable sentences. Unfortunately, only two contained any description of the nature of the offending by which any comparison with the instant case could be made. Further, the summary of the sentence in Uikelotu Afeaki (CR 208/19) was wholly inaccurate and appears to have been a mistaken repetition of the summary of the sentence in Mohi Halalupe (CR 72/17).
14. Of the remainder, I have had regard to the sentence in Maikolo Vaomotou (CR 96/16, 28 October 2016). There, the prisoner pleaded guilty to one count of serious housebreaking and one count of serious indecent assault. The latter offence occurred late at night when the prisoner broke into the house of the victim and her husband, went to where she was sleeping and licked her vagina. Cato J set a starting point of four years. That was reduced to three years imprisonment for the serious indecent assault with the final 12 months suspended on conditions.
15. Also, in Hu’akau [2018] TOSC 70,^[1] the prisoner was sentenced to 18 months’ imprisonment for fondling, kissing and sucking his 14-year-old stepdaughter’s breasts. On another count, he was sentenced to three years for licking her vagina and sucking her breast. He was a repeat offender. No part of the sentence was suspended.
16. The Crown’s submissions also included that when interviewed, the victim said that after the trial she ‘felt at peace’ and that she had forgiven the Defendant because she wants to move on with her life.

Presentence report

17. The Defendant is 47 years of age. He is the fifth of nine children. Both his parents have passed away. His family migrated to the USA when he was six years old. He had a good upbringing and a reasonable education. He married there and has seven children.
18. In 2014, he was deported to Tonga for fraudulent payments. His wife and children remain in the USA. He keeps contact with them. After initially living with one of his sisters in Ha’apai for two years, the Defendant moved to Tongatapu and lived in various places, including the residence in which these offences took place. He currently lives with his half-sister and her family in Havelu.
19. The Defendant works as a bricklayer earning up to $800 per week.
20. By all accounts, prior to this offending, the Defendant had always treated the Complainant with respect. Alcohol has become a problem in his life. No doubt he has relied on it to unhealthily numb the pain of separation from his wife and children and the relatively dislocated and listless life in which he has found himself here in Tonga.
21. The Defendant has no previous convictions in Tonga. He has expressed remorse throughout and is ashamed of what he did. Even though his decision to plead not guilty resulted in the Complainant having to give evidence, as I have indicated, the Defendant never had a real defence. I suspect that had he received legal advice, including as to the usual discount for early guilty pleas, the matter would not have gone to trial.
22. The author of the report recommends a fully suspended prison sentence on conditions including measures to ameliorate the Defendant’s alcohol problems.

Starting point

23. The offence of serious indecent assault carries a maximum penalty of five years imprisonment.
24. The Crown identifies Vaomotou for a starting point for serious indecent assault involving licking of the vagina of four years. It should be noted, however, that Vaomotou was a repeat sex offender. The Crown also points to Hu’akau for a starting point for serious indecent assault involving fondling of the vagina of three years imprisonment. It also submits, without rationale or authority, that licking a vagina is more serious than the offending here. Overall, the Crown submits a starting point here of three years for count 1 and 18 months for count 2, to be served concurrently.
25. The offending in the present case is serious. However, and for example, it is not as serious as that dealt with in Felemi [2018] TOSC 76,^[2] where the prisoner was in a de facto relationship with the 13-year-old victim’s mother. The offending there included taking off the victim's clothes, licking her vagina, fondling and sucking her breasts and rubbing his penis on her vagina. Cato J set the starting point for the more serious offences at four and a half years, with 12 months deducted for an early guilty plea and remorse. The final six months was suspended on conditions.
26. Nor is it as serious as that in Lolohea (unreported, CR 58 of 2016, 13 December 2016, Cato J) where the prisoner was sentenced to two and half years imprisonment for making his 13 year old stepdaughter handle his penis, touching her breasts and licking her vagina. That formed part of a six-year sentence for rape and other offences. For his previous good record and early guilty plea, three years were deducted and the final 18 months of the overall sentence was suspended on conditions.
27. Similarly, in Mailau [2017] TOSC 39,^[3] a father was sentenced to three years imprisonment for fondling and sucking his daughter’s breasts and an act of cunnilingus.
28. Important distinguishing features between those cases and the present is that they involved serious breaches of filial or similar trust and the victims were young girls. Notwithstanding, I consider the offending here involved a degree of breach of trust insofar as the Complainant and Defendant had been friends for some years.
29. At the other end of the spectrum lie decisions such as Uikelotu Afeaki [2020] TOSC 4,^[4] and the 2017 decision in Mo’unga.^[5] At the time of his offending, Afeaki was a 15-year-old schoolboy who pleaded guilty to two counts of groping the mature victim’s buttocks and breasts outside her clothing. A starting point was set at 18 months’ imprisonment. That was discounted by one third for his early guilty plea, remorse and lack of previous convictions. Due principally to the Defendant's youth, the resulting sentence of 12 months’ imprisonment was fully suspended on conditions. Mo’unga pleaded guilty to a number of offences including touching the vagina of a 16-year-old girl outside her clothes, for which he was sentenced to 12 months imprisonment.
30. In sentencing for sexual offences, the principal objectives must be denunciation, deterrence and public protection.^[6] So too is it important for the Courts to send a clear message that, subject to s.21, voluntary abuse of alcohol by so-called binge drinking, which so often is a most regrettable and damaging catalyst for it, can never be an excuse for criminal behaviour.
31. Having regard to the comparative sentences above, I regard the Defendant’s act of inserting his finger inside the Complainant’s vagina (as opposed to fondling the outside) while she was sleeping to be on par with offences involving cunnilingus. However, I consider the breach of trust here to be of a different kind to that involving a parent or stepparent sexually abusing his or her child or teenager. Therefore, I am of the view that the appropriate starting point for the first and more serious count is two and a half years imprisonment. For the second count of sucking the Complainant’s breast, I set a starting point of two years.

Mitigation

32. The Crown submits that on account of the Defendant being a first offender, 12 months should be deducted from its submitted starting point of three years, resulting in a sentence of two years imprisonment. In my view, a discount of effectively one third, solely for a previous good record, is excessive.
33. Having regard to the victim’s evidence at trial, her promising report to the Crown during her interview and the manner in which the Defendant conducted himself during the hearing, I accept that he is remorseful for what he has done. I view his maintaining that extreme intoxication robbed him of most of his memory of what occurred as an explanation for the offending and does not detract from his repeated expressions of contrition.
34. Therefore, on account of the Defendant’s lack of previous convictions in Tonga, his otherwise good character, and expressed remorse, I reduce each sentence by six months. By a different route to that advanced by the Crown, I too arrive at a head sentence of two years.

Suspension

35. The Crown submits that no part of the sentence should be suspended because the Defendant has not shown any remorse, he has not properly apologised to the victim and he did not plead guilty at the first available opportunity. It submits that the Defendant is unlikely to rehabilitate himself because he is still hiding behind the fact that he was intoxicated at the time of the offending. He has therefore not owned up to, or taken responsibility for, what he did. I have addressed the issue of remorse.
36. Having regard to the principles laid down by the Court of Appeal in Mo'unga v R [1998] Tonga LR 154 at 157, I consider that part of the sentence should be suspended. I do not consider that the necessary sentencing objectives for this type of offending discussed above would be served by a full suspension.
37. I accept that, in all likelihood, this offending was completely out of character for the Defendant. But for the amount of alcohol he consumed on the day and night in question, he is unlikely to have ever committed these offences. On that basis, and for his previous good record and remorse, I believe it to be in both his and the community’s interests to afford the Defendant an opportunity to rehabilitate through the supervision and counselling which will be available upon his release from prison.
38. Accordingly, I order that the final 12 months of the head sentence of two years imprisonment be suspended on conditions.

Result

39. The Defendant is convicted of two counts of serious indecent assault. On the first count, he is sentenced to two years imprisonment. On the second count, he is sentenced to 18 months imprisonment. Both sentences are to be served concurrently.
40. Pursuant to s.24(3) of the Criminal Offences Act, I order that the final 12 months of the head sentence be suspended for that period on condition that, during the period of suspension, the Defendant shall:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) live where directed by his probation officer;
    • (d) not consume alcohol; and
    • (e) attend and complete courses on alcohol and sexual abuse as directed by his probation officer.
41. Failure to fulfil any of the above conditions may result in the Defendant being returned to prison to serve the balance of the head sentence.
42. 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
25 August 2020	LORD CHIEF JUSTICE

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^[1] CR 107 & 108 of 2017, 16 November 2018.
^[2] CR 128 & 129 of 2018, 4 December 2018.
^[3] CR 71 of 2017, 14 December 2017, per Cato J.
^[4] CR 208 of 2019, 7 February 2020.
^[5] CR 33 of 2017, 13 July 2017.
^[6] Consistent with Andrew J in R v Taulanga [2007] Tonga LR 102.