R v 'Asa [2020] TOSC 72; CR 76 & 184 of 2020 (18 September 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 76 & 184 of 2020
REX -v- TIMOTE ‘ASA

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Ms L. Aonima for the Prosecution The accused in person
Date of sentence:	18 September 2020

The offending

1. On 30 November 2019, the victim, who was 23 at the time, went to the house of Tavite Fakava where the defendant was staying. She saw the defendant cover himself with a blanket while he was watching pornography on his phone. The defendant told the victim to go inside and he closed the door. He covered the door with a black cloth and used a white T-shirt to cover a hole in the wall. The defendant then sat on the bed and took off his clothes. He tried to take off the victim’s clothes, but she resisted. He pulled her t-shirt causing it to tear. Eventually, he removed the victim's clothes. He laid her on the bed and tied her hands to the window. He inserted his finger inside her vagina before penetrating her with his penis. The victim felt pain and was scared. The defendant continued to suck on the victim's breasts, kissing her and licking her vagina. At one point, a person came calling for the victim. The defendant put a t-shirt in the victim’s mouth and told her not to say anything.
2. After that, the victim returned to her house. One of the victim's sisters reported to their mother that the victim had gone missing in the morning hours. The mother called the victim and asked her where she had been. The victim told her mother what the defendant had done to her. The mother went to Tavite’s house looking for the defendant. He was not there. The mother then reported the matter to police. The Defendant was arrested that day.
3. The victim was taken that day to Vaiola hospital for examination. There was no evidence of recent injuries to her genitalia, but her hymen was not intact.
4. On or about 4 December 2019, the victim was examined again by Dr Pita Pepa. He diagnosed the victim as suffering from severe intellectual disabilities and opined that she did not have the capacity to consent to sexual intercourse with the defendant.
5. On 20 April 2020, in proceeding 76 of 2020, the defendant pleaded not guilty to two counts of rape contrary to s.118(1)(a)^[1] and (c)^[2] of the Criminal Offences Act and one count of serious indecent assault contrary to s.124(1) and (3) of the Act. A judge alone trial was listed to commence on 19 June 2020 on an estimate of four days. Bail was granted on conditions including that the defendant not commit any offence punishable by imprisonment.
6. On or about 16 May 2020, the victim went to a store at Houma. The defendant, who was standing on the roof of Tavite’s house, threw a pebble at her so she could see him. The victim went over to the defendant, Tavite and his wife who told the victim to run away with the defendant and get married. They lured her to get her clothes in order to leave with the defendant the next day.
7. On the afternoon of 17 May 2020, the defendant was drinking kava with others. At one point he left and did not return. Around 2 PM, the defendant signalled to the victim to come to him which she did. Tavite then drove the defendant and the victim to a residence in Patangata.
8. The victim's mother noticed that she was missing. She told her husband. They both went to Tavite’s house and asked him and his wife whether they had seen the victim. They lied and did not assist. When the parents asked where the defendant was, they said he was missing.
9. Meanwhile, at Patangata, the defendant locked the victim inside one of the rooms of the residence. That night, he went to the room and told the victim to remove her clothes. She refused. The defendant slapped her. He then raped the victim.
10. The next day, the defendant asked the victim to have sex with him again, but she refused. He again slapped her and told her to remove her clothes. She did so. He then raped her again.
11. During this time, the victim's parents and family were out looking for her and reached out to the public via social media.
12. On or about 19 May 2020, the victim's father received information that his daughter was at Patangata. The father went with police to the house and found the victim and the defendant inside one of the rooms. The defendant was arrested and remanded in custody.
13. On 25 May 2020, the defendant was brought before the court in relation to breaching his bail conditions by reason of the new charges. During the course of his appearance that day, the defendant indicated that he wished to change his plea to the first group of charges in proceeding CR 76 of 2020. He was rearraigned and pleaded guilty to each count. As the second count of rape was framed in the alternative, it was otiose, and the Crown has withdrawn it.
14. Bail was revoked and the defendant was remanded in custody to appear again on 29 July 2020 to ascertain whether, by that date, the Magistrates Court preliminary enquiry had been completed in relation to the new charges.
15. On 14 August 2020, in proceeding CR 184 of 2020, the defendant pleaded guilty to the further two counts of rape and one count of abduction of a woman contrary to s.128 of the Act.
16. That same day, Tavite Fakava pleaded not guilty to one count of abetment to the abduction of the victim contrary to ss 8 and 128 of the Act. His matter was remitted to the Magistrates Court for summary trial before a Magistrate with enhanced jurisdiction.

Crown submissions

Comparative sentences

17. The Crown provided the following comparative sentences.
18. In Fa’aoso v R [1996] Tonga LR 42, the offender was a security officer at a nightclub. He followed the victim after she left the club. He picked her up on his bicycle when she asked him to drop her at her boyfriend's place. However, the offender steered the bike into a container beside the road causing the victim to fall and lose consciousness. The offender forcibly removed her clothes and raped her. When she recovered consciousness, he punched her in an attempt to make her lose consciousness again. The starting point of five years was increased to eight years on account of the aggravating features, particularly the violence inflicted. Discounts for mitigating factors reduced the sentence to six and a half years.
19. In R v Fonua [2013] TOSC 25, the prisoner pleaded guilty to one count of rape of a feebleminded person. He was 62 years of age. He opportunistically took advantage of the 45-year-old victim who was naked in her house. She had been diagnosed as having mild to moderate retardation. The prisoner had a large family whom he supported through his fishing activities. He also had a long-term alcohol problem but had given up drink after the offending. He apologised to the victim's family which was accepted. He had a favourable probation report. Cato J considered that the protection of vulnerable persons, a major sentencing consideration, justified a sentence of six years. He reduced that by two years for the prisoner’s guilty plea, previous good character and contrition. The final two years of the resulting four years imprisonment were suspended on conditions.
20. In R v Langi [2013] TOSC 21, an 18-year-old prisoner pleaded guilty to the rape of a feebleminded 44-year-old woman. The prisoner explained the offending as a means of getting back at his girlfriend with whom he had had an argument. The victim suffered moderate mental retardation with an IQ level of 35 to 49, equivalent to a 6 to 9-year old. The family accepted the prisoner's apology. The offence was committed under the influence of alcohol. Cato J described the prisoner as a young man of considerable promise who had become increasingly dependent on alcohol and which resulted in very serious consequences. His Honour adopted a starting point of five years. He discounted that by a total of 40% for the prisoner’s early guilty plea, his youth, lack of previous convictions and expressed contrition. The final 15 months of the resulting three years imprisonment was suspended on conditions.
21. In Hu’ahulu v R [2014] Tonga LR 249, the appellant was convicted at trial of the rape of a 23-year-old feebleminded woman. He was sentenced to 13 years imprisonment with the last three suspended. He appealed against sentence. The Court of Appeal agreed that the sentence was manifestly excessive. He was 27 years of age and had no serious prior offences. He cooperated and apologised to the complainant's mother. The Court of Appeal adopted six years as a starting point which was reduced by one year for the appellant’s contrition. The last year of the resulting five years imprisonment was suspended for two years.

The victim

22. The Crown interviewed the victim's mother. She reported that when the victim was growing up as a baby, her parents realised she was different to the other children in that she was deaf and mute. Notwithstanding, they sent her to school. The teachers soon complained that the victim was violent towards other children and difficult to teach. She was then withdrawn from school and stayed at home.
23. At the age of seven, she was taken to the Red Cross where she spent the next three years learning to speak, lip read, write and converse in sign language. It was not until the victim reached her teen years that her family realised that she was mentally unstable when, at times, she acted like a child. She was taken to the hospital and diagnosed as suffering from severe intellectual disabilities.
24. The victim's mother believed that the defendant first raped her daughter in 2018 because when the defendant was caught last year, upon questioning by her mother, the victim said that the defendant had had sexual intercourse with her multiple times in the past.
25. The victim's mother described what happened to her daughter as one of the most terrifying moments of her life. During the two days the victim was abducted, her family were distraught.
26. She also reported that the victim has changed since the incidents. She sometimes stares out into space for quite some time before responding to questions and she no longer goes anywhere. The victim still well recalls what was done to her.
27. The mother reported not having received any apology from the defendant or any of his relatives.

Crown’s position on sentence

28. The Crown submits that the paramount sentencing considerations here are the protection of the vulnerable, deterrence, denunciation or condemnation of such behaviour and punishment for those who commit crimes of serious sexual abuse such as rape. The court is to protect women and those who are vulnerable from predatory sexual activities.
29. It submits that the starting point for the head sentence on the rape counts is five years imprisonment (in accordance with Fa'aoso) but that should be increased to six years (as in Fonua) to reflect the need for protection of vulnerable persons, particularly, the feebleminded. The Crown submits that a further year should be added for the abduction and another year for raping the victim during the abduction.
30. The Crown accepts that the sentence should be discounted for the defendant’s relatively early guilty plea thereby saving the victim from having to relive the incidents at trial and for his lack of previous convictions. The Crown submits that the sentences to be imposed for the abduction and serious indecent assault be served concurrently with the head sentence.
31. As the defendant was cooperative throughout the investigation, the Crown submits that some suspension of the sentence is warranted.

Presentence report

32. Both of the defendant's parents passed away while he was at secondary school. He quit school in form 3 due to family financial hardship. He has since worked on his family's plantation. He has never been gainfully employed elsewhere.
33. The defendant is a lay preacher at his local church.
34. In relation to the offending, it was reported that the defendant liked the victim and that although he knew that she was deaf and mute, she was able to understand him. The defendant said that he was never aware that the victim suffered from intellectual disabilities.
35. The probation officer notes that the defendant is a first-time offender, has a good previous record, has shown genuine remorse through his guilty plea and has taken full responsibility for his actions. He cooperated with police and the prosecution. He apologised to the victim's mother but it was not accepted.
36. Despite the seriousness of this offending, the defendant is assessed as representing a low risk of reoffending. While the probation officer acknowledged that imprisonment was inevitable, he recommended that part of the sentence be suspended during which, among other things, the defendant be placed on probation.

Consideration

37. The maximum statutory penalties for the offences are 15 years imprisonment for rape, seven years imprisonment for abduction of a woman and five years imprisonment for serious indecent assault.
38. The accused is 40 years of age and has no previous convictions.
39. I agree with the Crown that the paramount sentencing considerations for crimes of serious sexual abuse such as the instant case are the protection of the vulnerable, deterrence, denunciation or condemnation of such behaviour, and punishment of those who commit such crimes: R v Langi [2013] TOSC 21 at [8].
40. The defendant’s repeated and opportunistic sexual abuse of the intellectually disabled victim is a most heinous crime which must be met with a stern response. That he committed the second lot of offences some six months after the first, while he was on bail for them, and by abducting the victim for two days, adds significantly to the seriousness of the offending and reflects the Defendant’s disregard for the victim and the law.

Approach: cumulative or concurrent?

41. The fact that the abduction and rapes in CR 184 occurred some six months after the rape and serious indecent assault in CR 76 calls for careful consideration as to whether the offences constituting the two proceedings are to be viewed as separate crimes for which, subject to the totality principle, cumulative punishment is appropriate: Kolo v Rex [2006] TOCA 5 at [11]. Ordinarily, cumulative sentences should only be imposed for offences that are unrelated: Hokafonu v Rex [2003] TOCA 3 at [51].
42. In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624, McHugh, Hayne and Callinan JJ observed that a judge sentencing an offender for more than one offence:

“must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well of course, as questions of totality. Cumulation or concurrence is one thing; totality is another thing; and they interact.”

43. The question involves two issues: first, whether the offences were so closely connected that they should be regarded as part of the one course of criminal activity; and secondly, whether in any event, the totality principle requires the sentences to be made, wholly or partially, concurrent.
44. The totality principle requires the court to have regard to the totality of the offending, particularly where the offences are a series of related offences: Kolo, ibid, at [12].^[3] According to the principle, a court, which has correctly fixed a series of consecutive sentences as the appropriate periods, is obliged at the end of the process to consider whether the aggregate figure represents a proper period of incarceration to be imposed for the total criminality involved: McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555 at 563. Further, in cases where the prisoner has not previously been sent to gaol, the accumulation of sentences to be imposed ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment. If possible, justice should especially avoid placing such a person where, in Milton’s words, "hope [can] never come [t]hat comes to all".^[4] In a case of that kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-63.
45. In my view, notwithstanding the significant temporal gap between the offending giving rise to the two proceedings, to order that the whole or any significant part of the sentences to be imposed in CR 184 be served cumulatively to those to be imposed in CR 76, is likely to result in an overall sentence that could appropriately be regarded as a ‘crushing’ first period of imprisonment.
46. I therefore propose to approach the determination of appropriate sentences on the basis that they will all be served concurrently but that the terms for the rapes in CR 184 will be increased to reflect the aggravating circumstances of that second offending.

Starting points

47. The settled starting point in Tonga for each of the rapes is five years imprisonment: Fa'aoso v R [1996] Tonga LR 42. To that, I consider it appropriate to add one year for the aggravating feature of the victim being feebleminded.
48. Further, for the rapes in CR 184, an additional year will be added for the fact that the accused committed those offences whilst on bail awaiting trial in CR 76 and a further year will be added on account of the violence inflicted and the sustained nature of the rapes the subject of that proceeding. The resulting effective starting point for the head sentence of eight years imprisonment represents a proper period of incarceration to be imposed for the total criminality involved.
49. For the serious indecent assault, which included the Defendant licking the victim’s vagina, I adopt a starting point of three years imprisonment which is consistent with sentences for comparable offending in decisions such as Lolohea (unreported, CR 58 of 2016, 13 December 2016, Cato J), Mailau [2017] TOSC 39 and Felemi [2018] TOSC 76.
50. In Polutele v R [2004] Tonga LR 190, the appellant was a repeat sexual offender. The Court of Appeal declined to interfere with a sentence of five years for abduction of a woman whom he also raped. Here, having regard to the fact that the abduction and detention of the victim continued over two days, I adopt a starting point of four years imprisonment on that count.

Mitigation

51. For the Defendant’s early guilty plea and lack of previous convictions, I reduce the starting points by 25%.

Suspension

52. Having regard to the principles in Mo'unga v R [1998] Tonga LR 154 at 157, the Defendant’s previous good record, cooperation, remorse and his likely aptitude for rehabilitation, the final 12 months of the six-year head sentence will be suspended for two years on conditions.

Result

53. The Defendant is convicted and sentenced to the following terms of imprisonment:
    • (a) in proceeding CR 76 of 2020:
      • (i) on count 1, rape, four years and six months;
      • (ii) on count 3, serious indecent assault, two years and three months;
    • (b) in proceeding CR 184 of 2020:
      • (i) on count 1, rape, six years;
      • (ii) on count 2, rape, six years; and
      • (iii) on count 3, abduction of a woman, three years.
54. The sentences are to be:
    • (a) served concurrently; and
    • (b) backdated to the date the Defendant was remanded in custody.
55. The final 12 months of the effective head sentence of six years will be suspended for a period of two years on condition that upon his release and during the period of suspension, the Defendant shall:
    • (a) not commit any offences punishable by imprisonment;
    • (b) be placed on probation;
    • (c) live where directed by his probation officer; and
    • (d) attend and complete a course on sexual abuse at the direction of his probation officer.
56. Failure to perform any of the above conditions may result in the defendant’s return to prison to complete the suspended part of his sentence of imprisonment.
57. Pursuant to s.119 of the Criminal Offences Act, 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
18 September 2020	LORD CHIEF JUSTICE

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^[1] Carnal knowledge of a female against her will.
^[2] Carnal knowledge of a female being aware that she is feeble minded ... as to be incapable of giving or refusing consent.
^[3] Referring to Polutele v Rex [1995] Tonga LR 59 and Hokafonu v Rex (Court of Appeal, Burchett and Tompkins JJ, 25 July 2003) at para 52.
^[4] Paradise Lost, 1:66-67.