R v Kakau [2020] TOSC 86; CR 89 of 2020 (21 October 2020)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 89 of 2020

BETWEEN:

R E X
-Prosecution
AND:

TONGAMOA KAKAU
-Accused

SENTENCING REMARKS

BEFORE: JUSTICE LANGI

Counsel: Ms ‘Aunofo ‘Aholelei for the Crown Prosecution
The Accused In Person

Date of Sentencing: 21 October, 2020

1. INTRODUCTION
   

1. On 18 September 2020 after a two-day contested trial, the Defendant was found guilty of one count of serious indecent assault contrary to section 124 (1) and (3) of the Criminal Offences Act.
   
2. He appears in this court today for sentencing.
   
   2. THE OFFENDING
      
3. The victim is ‘Avalisi Kolo, 21 years old and is unknown to the Defendant;
4. On or about 21 September 2019, the complainant and her husband were inside their bedroom sleeping. Between the hours of 3 - 4.00am, the victim woke up when she felt someone kissing her on the mouth and touching her vagina. At first, she thought it was her husband but upon closer inspection she realized that it was someone else. She yelled out her husband’s name and the accused got up and ran out of the bedroom.
   
   100. THE CROWN’S SUBMISSIONS ON APPROPRIATE SENTENCE
5. The Crown identified the following as aggravating factors in this case:
   1. The offending was serious;
   2. The accused pleaded not guilty and the complainant had to relive the ordeal again;
   100. The defendant has not shown any remorse;
6. The following were identified as mitigating factors:
   1. The defendant has no relevant and recent previous convictions;
7. The maximum sentence for serious indecent assault is 5 years imprisonment
   
   4. COMPARABLE SENTENCES
8. The Crown submits a number of comparable sentences to assist me in determining an appropriate sentence:
   
9. In R v P.F (Unreported, Supreme Court, CR 212 of 2019, 5 June 2020, Whitten LCJ), the accused was convicted of two counts of serious indecent assaults on his 17-year-old step-daughter. He had inserted his hand inside the victim’s underwear and fondled her vagina and also fondled her breast. The Judge considered that in light of the maximum penalty of 5 years, the comparative seriousness of the offending, the impact on the victim and the Defendant’s lack of remorse, an appropriate starting point for count 1 is two years imprisonment. One year was added to the starting point due to the aggravating features of the case, that is the gross breach of trust between a step father and daughter, the defendant’s relative maturity compared to the victim’s immature age, the repeated nature of his attacks on the victim and the touching of the vagina. The accused was therefore sentenced to 3 years imprisonment for count 1(fondling the vagina) and two years’ imprisonment for count 2 (fondling of the breast)
10. In R v Mo’unga (unreported, Supreme Court, CR 33 of 2017, 13 July 2017), the 46-year-old accused in that case 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. In mitigation, the accused was a first-time offender, was cooperative with the police and showed remorse. He was sentenced to 12 months imprisonment for the indecent assault charge (touching the vagina outside her clothes) as part of an overall sentence of 15 years with the final two years suspended on conditions.
    
11. In R v Soafa (unreported, Supreme Court, CR 5 of 2016, 23 May 2016), an 18-year-old male pleaded guilty to one count of rape and one count of serious indecent assault and one count of housebreaking. The victim in that case was a 24-year-old Japanese national volunteer. She was attacked and forced to the floor, punched in the face and pushed onto a sofa. The accused strangled her to stop her from screaming. She was forced to the ground, had her pants and underwear pulled down and the accused tried to insert his penis into her vagina. The victim managed to push him away. He was later arrested and admitted to the offending. He was a first-time offender and came from a broken family. He showed remorse and tried to apologize to the victim but she did not accept his apology. 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.
    
12. In R v Lolohea, the 39-year-old defendant pleaded guilty to a number of sexual offences upon 13-year-old step-daughter which included four counts of rape, sixteen counts of serious indecent assaults and five counts of domestic violence. The 16 counts of serious indecent assault involved sexual acts of handling the accused’s penis, touching of her breasts, licking her vagina and lying on top of the victim. The defendant was sentenced two years imprisonment for the indecent assaults to be served concurrently with the first count of rape where he was sentenced to six years imprisonment. The sentencing Judge discounted three years by way of mitigation because the defendant was a first-time offender, pleaded guilty and had expressed remorse. The final 18 months of the sentence was suspended on conditions.
    
13. The Crown acknowledges that the comparable cases referred to are more serious than in the present case but may nonetheless provide some guidance for the court in deciding the appropriate sentence in this case.
    
    5. PRE-SENTENCE REPORT
       
14. The Defendant is 32 years old. He is the eldest of 6 children and still lives with his parents at Touliki, Ma’ufanga. He has been married to his wife Kalolaine Vailea for six years and they have one adopted daughter who is now two years old. His wife is currently on lockdown in Australia and she continues to provide financial support to the Defendant and their daughter.
    
15. The defendant was born into and raised by a decent family who is known in their village for their commitment to the Free Wesleyan Church and the community.
    
16. He received moderate education, having completed primary school and continued with secondary education up until form 5. He then registered with the Fokololo ‘o e Hau Technical school and completed a 3-year course in carpentry and was awarded a Certificate in Carpentry Work.
    
17. He used to work in different places doing carpentry work and in 2015-2016 he had an opportunity to work as a fruit picker under the Seasonal Fruit Picking Scheme. He is now doing carpentry work on his own whereby he earns approximately $280 a week.
    
18. The defendant told the report writer that he does not accept the courts decision and he maintains that he is innocent. He stated that he has a clear conscience and will not admit to an offence he did not commit. He told the report writer that he suspects that the charges against him were done to cover up the fact that personal items had been stolen from him.
    
    6. VICTIM IMPACT REPORT
       
19. Mrs. ‘Aunofo ‘Aholelei for the Crown submitted a victim impact report which she had prepared herself after interviewing the victim.
20. The victim is 21 years old and resides with her husband at Tu’anekivale, Vava’u. At the time of the offending she was 20 years old and had lived with her husband at her uncle’s house at Houmakelikao where the offending had occurred.
    
21. She told the author of the report that she had been emotionally affected by the ordeal and that a few weeks following the offending, she was furious with the defendant. Over time her anger was replaced with the feeling of embarrassment and humiliation over what had happened to her.
    
22. She said that the offending had in some way affected her relationship with her husband and family because she felt ashamed over what happened. Despite this, she told the report writer that she has moved on with her life and relocating to a different island has had a positive impact in putting everything behind her and moving on with her life.
    
23. She stated that a few days after the offending the defendant’s mother and sister came to see her and apologized to her and gifted her with $400. The accused did not go with them because he was still remanded in custody.
    
24. She states that she accepted their apology even though it did not come directly from the accused. However, the accused had later approached her and asked her to have the charges withdrawn so that he would be able to go overseas on the Fruit Picking Scheme. Her father had also urged her to drop the charges and move on with her life. She had then tried her best to have the charges withdrawn but she was informed that they could not be withdrawn based on the reasons she gave them.
    
    7. DEFENDANT
25. Even though he maintained his innocence when interviewed by the probation officer, the defendant filed various reference letters on his behalf. The District town officer of Kolofo’ou states that the accused is a reliable and trustworthy young man who is respected in the church and the village. A letter from the Community Patrol Volunteer group of Touliki also stated that he is a hard-working person with integrity and values that assist him in making the right decision. It also stated that he is a reliable and trustworthy person in the community and is a member of the community patrol of Touliki.
    
26. The church minister of Houmakelikao, Rev. Sione Uepi FA, also wrote a letter to the effect that the accused is an active member of the church and is a reliable and trustworthy individual.
    
27. Additionally, a letter from his employer at Napole Constructions also states that he is a reliable and trustworthy individual and is a good role model for the rest of the workers.
    
28. The reference letters submitted does not refer to the offending and it is not clear whether or not the authors were aware of it when they prepared their letters.
    
29. Lastly, the accused father has written a letter informing the court that the accused is the one who provides for the family including himself and his wife and also states that he is a hard working young man.
    
    8. STARTING POINT
30. In Tonga, sentences for serious indecent assault range from 12 months to 4 years. The gravity of the offence will determine the starting point for the sentence. From the comparable sentences submitted by the Crown, there seems to be a general consensus in our courts for a starting point ranging from 12 months to 2 years for serious indecent assaults involving the touching of the vagina (R v P.F; R v Soafa; R v Lolohea). Also in R v 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. On the count of serious indecent assault, the victim had been locked inside a storage room at a school where the male accused kissed her on the mouth and fondled her vagina outside her clothes. The aggravating factors against him was that he had previous convictions for a similar offence and the huge disparity in their ages, with the accused being 56 years old and the victim only 14 years old. The defendant was sentenced to 3 years imprisonment without any suspension.
    
31. The cases referred to by Crown involved serious aggravating factors such as breach of trust, the age disparity between the defendants and the victims, the use of threats of violence and the presence of premeditation (R v PF; R v Lolohea; R v Mo’unga).
    
32. In this case, the victim was unknown to the accused, she is a mature married young lady at the age of 21 and it is clear from the circumstances that there was no premeditation involved. However, this does not make the actions of the accused less serious, and although the Crown contends that the comparable cases were more serious than the current case, I am of the view that the serious indecent assault committed in this case was more serious than that in Mo’unga and Hu’akau where the indecent assaults in those cases included touching the vagina outside the victims’ clothes.
    
33. Additionally, in Mo’unga, Soafa and Lolohea, the accused persons pleaded guilty thereby saving the victims the embarrassment and trauma of having to relive the degrading acts committed on them. The accused in this case has shown no remorse for his actions and maintains his innocence despite having been convicted. In light of these considerations and the objective seriousness of the offence, I fix a starting point of two years.
    
34. I take the fact that the accused is not remorseful and maintains his innocence and putting the witness through the trauma of having to give evidence as serious aggravating factors. Added to this is the attack had been made in the safety and comfort of the victim’s house where she had every right to feel safe from intruders. The homes of every citizen are the places where they should not only feel safe but where they should be safe. Individuals who would attack women in the safety of their homes are to be deterred. I therefore add another 1 year to the starting point making a total sentence of 3 years imprisonment.
    
35. The Crown submit the only mitigating factor in favour of the accused is that he has no relevant or recent criminal conviction. He was convicted in 2004 for the offence of assault. I accept that he has been free from criminal activity for a long time and will therefore treat him as a first offender. For that I deduct 6 months, leaving a total sentence of 2 years and 6 months. Though the offending could be classified as being in the lower end of the spectrum for serious indecent assault, the purpose of this sentence is to impress upon the accused and any like-minded persons like him that the courts condemn such undesirable conduct and should not be tolerated.
    
    1. SUSPENSION
36. I now turn to whether the circumstances in this case warrant a suspension of part or the whole of the overall sentence. As was noted by the Lord Chief Justice Whitten in the case of R v Afeaki [2020] TOSC 43; CR 208 of 2019 (7 February 2020], although section 24(3) of the Act gives the Court jurisdiction to suspend the whole or part of the sentence for any period of up to three years, it is silent on the criteria to be considered in deciding whether a sentence should be suspended. However, the court in that case used the guidelines taken from the case of Mo’unga v R [1998] Tonga LR 154 where the Court of Appeal approved the approach of Eichelbaum CJ in R v Petersen [1994] 2 NZLR 533 (CA) when considering the issue of suspension. These considerations were summarized by LCJ Whitten as follows:
    1. A suspended sentence is intended to have a strong deterrent effect;
    2. If the offender is incapable of responding to a deterrent, it should not be imposed;
    100. The circumstances in which a suspension of sentence may be appropriate include:
         1. Where the offender is young, has a previous good record or has a long period of free of criminal activity;
         2. Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself;
         3. 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
         4. Where there has been co-operation with the authorities.
            
37. Only two of the positive considerations above apply to the accused in this case, that is, his long period of free criminal activity and the lack of premeditation. I have no doubt that this offending was caused by him drinking himself into a stupor to the point where he was unable to think clearly or take control of his actions. Indeed, this could be part of the reason he maintains his innocence because he simply cannot remember doing what he did that night even though the evidence against him was overwhelming.
    
38. I also take into account that the nature of the offending was only fleeting, unlike the offences in the cases referred to by the Crown where the assaults involved some sort of violence or threats, were premeditated and the length of the assaults were for longer periods of time (P.F; Soafa; Lolohea).
    
39. I also accept the references provided on behalf of the accused that up until this particular offending, he was viewed as a reliable and hardworking young man who is currently responsible for taking care of his parents and siblings and his adopted daughter. He has however, found himself in an unfortunate situation caused by his own decision to go on a drinking spree that resulted in him committing something he would not have done if he had been sober. He has now experienced what many others before him who have appeared in court for crimes committed due to excessive drinking and hopefully he has learned that excessive drinking will most likely always land one in trouble.
    
40. Additionally, the victim has indicated that she has forgiven the accused and has moved on with her life. She has accepted the apologies from his mother and sister and even though the accused did not apologize directly she has moved on and has put this all behind her.
    
41. For these reasons I order that the last 2 years of his sentence is suspended for 3 years on the following conditions:
    1. The accused is not to commit any further crimes punishable by imprisonment during the period of suspension;
    2. He is placed on probation and is to report to the probation officer within 48 hours of his release from prison;
    100. He is to undertake and complete the Salvation Army Drug and Alcohol Awareness Program;
         
42. The accused is to serve the remaining 6 months of his sentence.
    
43. Finally, as requested by the Crown and pursuant to section 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 to the public or be broadcast in the Kingdom.
    

‘E. M. L Langi
NUKU’ALOFA: 21 October, 2020 J U D G E