R v Lui [2021] TOSC 113; CR 301 of 2020 (1 July 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 301 of 2020

REX

-v-

LEMOTO LUI

BEFORE HON. JUSTICE NIU

Counsel : Mrs. T. Vainikolo for the Crown.

: Mr. S. Tu’utafaiva for the accused.

Plea : Not guilty but convicted on 27 April 2021.

Report : by Probation Officer, ‘Ema To’ia, on 27 May 2021.

Submissions : by Mrs. Vainikolo on 18 June 2021.

Victim Report : by Mrs. Vainikolo on 18 June 2021.

Submissions : by Mr. Tu’utafaiva on 23 June 2021.

Sentencing : 1 July 2021.

SENTENCING

Offence

[1] Lemoto Lui, you have committed the offence of serious indecent assault upon the complainant on 2 occasions, namely, that

(a) in about July 2020, you sucked her breast and you inserted your finger into her vagina without her consent, in a bush area stated in the indictment, and

(b) in about the months of April to July 2020, you fondled her breast outside her clothes without her consent, at a place stated in the indictment,

contrary to S.124 (1), (2) and (3) of the Criminal Offences Act.

[2] You denied that you committed those offences and you pleaded not guilty to those two charges but I found you guilty after I had heard the evidence given at the trial. You now appear before me to be sentenced for those offences. They are punishable by imprisonment for any period not exceeding 5 years.

Previous conviction

[3] The Crown says that you have no previous conviction but the probation officer says, no doubt because you told her, that you were convicted for theft in 2013 and common assault in 2016.

Report

[4] The probation officer has prepared a report after she had spoken with you, and with your wife, your bishop, the town officer, and 2 other persons with whom you have associated.

[5] She says that you are 45 years of age, that you are married and that you have 9 children but one child has been adopted out and so you live only with 8 children, 5 of whom are still in school. She says that you are currently employed as Manager of an internet live show called Mate Ma’a Tonga and she attaches a letter from one, Deborah Moala, from the U.S., who says she’s the owner of Mate Ma’a Tonga Radio. You told the officer that you have a salary as manager of about $400 to $600 per 2 weeks.

[6] She says that you also provide entertainment as a singer and musician at Church functions, kava clubs, school functions and village functions, and she attaches letters from the town officer, the Fijian Community, the Church bishop, and the ‘Ai’angakai Club which confirm your assistance to their causes by providing entertainment for them free of charge. The letter from the Fiji Community says that you pay the bill for the free food which they give to mental health patients every Saturday.

[7] She says that you have acknowledged that you did commit these offences and she says that this type of offence is climbing in number in each year and that it should not be tolerated because such offence affects the victim for the rest of her life. She says that you were in a position of trust and the victim looked to you as father and that you abused that trust for your own gratification.

[8] You told the officer that you had asked the complainant (victim) for forgiveness but you did not say how or when you did that or whether or not she accepted, but now having read the victim impact report which Crown Counsel has attached to her submissions, I accept that you did not and have not sought forgiveness from the complainant.

[9] The officer says that you are the sole provider for your family and she asks for the Court’s mercy on your behalf and recommends that your sentence be suspended on condition that you carry out community service.

Crown submissions

[10] Crown counsel, Mrs. Vainikolo, says that the only mitigating factor in your favour is that you are a first offender. But as I have stated above, that cannot be right because you have admitted to the probation officer that you were convicted in 2013 for theft and in 2016 for assault.

[11] Counsel says that there are 6 aggravating factors against you:

(a) You were in a position of trust to the complainant because she and her mother and siblings resided in your house and you acted as father to her and her siblings;

(b) These are serious indecent assaults because you sucked the complainant’s breast and you inserted your finger inside her vagina, as well as fondling her breast outside her clothing (as in count 2).

(c) The offending was premeditated. You intentionally dropped off your own daughter first so that you would be able to take the complainant on her own to do what you did to her;

(d) You committed the offence in count 2 (fondling the complainant’s breast outside her clothes while she was sleeping) in the presence of and whilst your own daughter who was 15 was awake and playing on her telephone;

(e) Your offending has severely and adversely affected the complainant as shown in the victim impact report;

(f) You are not remorseful for what you did to her because you contested the charges so that the complainant had to get up and give evidence in public of what you did to her, which caused her pain and shame, and re-lived the horrible things you did to her.

[12] Counsel refers to five cases but three of them are of rape and incest as well as serious indecent assault. The emphasis of the sentencing in those 3 cases was on the rape and incest offences and not on the indecent assault offences because the sentences were all held to be concurrent with the rape and incest sentences which were for much longer periods.

[13] The two cases of serious indecent assault she referred to are:

(a) R v P.F (CR212/2019) where the accused was found guilty after trial of 2 offences of serious indecent assault upon his 17 year old stepdaughter by fondling her vagina inside her clothes and by fondling her breasts outside her clothes. The Court said that the starting point be 2 years imprisonment and that another year be added to it because of the breach of trust which the accused committed, making a total of 3 years imprisonment but with the last 12 months being suspended on account of the accused having no previous conviction.

(b) R v Felemi & Tauhelangi (CR128 & 129/2018) where the male partner of a couple living in de facto relationship committed acts of serious indecent assault upon the daughter of the female partner, with the encouragement of the female partner on 4 separate occasions. The acts consisted of fondling and sucking of the breasts, licking the vagina and rubbing his penis on the outside of the vagina. Both accused pleaded guilty. A starting point of 4½ years because of the break of trust was set and 1 year was deducted on account of the guilty plea and remorse, and the final 6 months of the remaining 3½ years imprisonment was suspended.

[14] Counsel emphasised the need for deterrence and protection as was stated by Andrew J in R v Taulanga [2001] Tonga LR 102: “... the overriding principle in sentence must be public deterrence ... Any sentence must denounce this conduct in addition to public protection.”

[15] She submits that a starting point for you should be between 2½ and 3 years imprisonment and that a further 12 months be added to it for the breach of trust. She recommends that starting point because you drove and took the complainant to a secluded area where you committed the indecencies, as well as exposing your penis and getting her to touch it and then masturbating in front of her.

[16] She says that no discount be allowed to you on account of your clean record, but that suspension may be considered on account of it.

[17] In respect of the offence in count 2, that is, fondling her breast outside her clothes while she was sleeping, she says that an appropriate sentence for it is 2 to 2½ years imprisonment.

[18] Finally, she submits that the prohibition of publication of the name or identity of the complainant be continued.

Victim impact report

[19] Crown counsel has attached a report she made of her interview of the complainant on 24 May 2021. This is what it says except for parts which I have omitted or changed to ensure the identity of the complainant is not revealed:

“I BACKGROUND

1. The Victim is the oldest of four children of her parents.
2. Her mother passed away early this year of cancer. Her father is overseas. At the time of the offending both her parents were separated.
3. The Victim, her mother and her siblings began living with the Accused, his wife and children at the beginning of 2020 up until shortly after the offending.
4. She is a Form 6 student. She lives with her aunty (her father’s sister) and their family.

II INTERVIEW

5. The Victim explained that she was extremely affected by the offending. She could not focus on her studies and did not attend school for many days. As a result she was not able to sit the government exams. She was in Form 6 last year and had to repeat again this year.
6. She explained that prior to the offending, she would be among the top students. After the offending, she did not feel like studying. However her mother encouraged her to continue and to consider her future.
7. Up until last year she had never repeated any level of her schooling.
8. She explained that this year she has improved in her studies. She with a proud look in her eyes explained that she passed all her exams during the first term of this year.
9. Not only was her schooling affected, but she was emotionally and mentally affected. She explained that she wanted to commit suicide after the offending.
10. She explained also that there have been effects on her family relationships. Her mother and (the Accused’s wife) were no longer close. This is the same for her relationship with them.
11. She explained that last year she lost a lot of weight after the offending. She did not want to eat. She explained that her aunty who she lives with now encouraged her to forget the offending and has been helping her to get past it. As a result, this year she has found the ability to eat more and has gained weight again.
12. She explained that when she slept at night immediately after the offending, she would wake up in the middle of the night and would just stare as if she lost something. She would find it hard to go back to sleep. She is much better now as she tries not to think of the offending. Furthermore, her mind now is more kept on thoughts and memories of her late mother.
13. Shortly after the offending, she would often think of the offending. However, she rarely thinks of it now. It is only brought to her mind when someone mentions the Accused’s name.
14. Nevertheless she is still scared up until now that the Accused will do something else to her. When asked what, she explained that he may commit further indecencies on her.
15. She explained that there was a time immediately after the offending that the Accused messaged her on Facebook and made her feel guilty about complaining to Police. He asked her whether she wanted him to go to prison and explained that his children would go hungry if he did. Her response to him was Yes because that is the result of what he did. She apologised that she could not provide a copy of these messages to the Court because these had already been deleted.
16. When asked about her thoughts on a sentence for the Accused she stated that she would like him to be imprisoned and serve time. This is not just that he is punished for what he did, but it is also so that her father will be satisfied that the Accused is punished. She explained that her father is currently serving a term of imprisonment overseas for assault on another. When he finally found out about the offending, which was after the trial, he was extremely angry and wanted to physically harm the Accused. Her father will finish serving his sentence this year and will return to Tonga thereafter. She fears that her father will do something to the Accused if the Accused is sentenced leniently, and she does not want her father to go to jail again. The reason she and their family had kept the offending a secret from her father is because of his temper as they knew he would not take this offending lightly.
17. Apart from the Accused’s apology to the Victim’s mother and to his wife shortly after the offending (which was brought up during the trial), the Accused has not asked her forgiveness for what he did. Neither has she forgiven him for what he did and she does not expect to forgive him in the future. When she sees the Accused she only feels hatred for him.

3. CONCLUSION

18. Counsel is of the view that the Victim was severely affected by this offending. The Accused took advantage of her at a time when she was experiencing family problems with her parents and at a time when her mother was diagnosed and struggling with cancer. She was also only 16 years old at the time.
19. But for the encouragement of her school friend (which came out during the trial), her mother, her aunty and the counselling services of her school and church, the Victim may have taken her life shortly after the offending.
20. With the support of those already mentioned and others, she is able to persevere and move past the offending. She will no doubt remember the offending from time to time and will have to live with this for the rest of her life.
    

Respectfully submitted for your consideration.

DATED this 18 day of June 2021.

Tupou Kafa-Vainikolo

Counsel for Prosecution

To : Registrar of the Supreme Court of Tonga

And To: Mr. Siosifa Tu’utafaiva, Counsel for the Defendant”

Your counsel’s submissions

[20] Your counsel, Mr. Tu’utafaiva, has made submissions on your behalf. He says that the appropriate sentence is a custodial one and that the aggravating features pointed out by the Crown are not disputed. He also says that the sentencing approach taken in the case of R v P.F is the appropriate approach to be taken in this case, namely, that a starting point of 2½ years be taken and that an additional 12 months be added on account of the breach of trust making a total of 3½.

[21] He submits that a suspended sentence, in full or in part would be beneficial to you and that a condition of such suspension be that you attend counselling in view of the way you look after your own children.

Consideration

[22] In considering your sentence, I not only have to consider the cases to which reference have been made, I also have to consider the reasons why the law you have breached and the sentence enacted for that breach were thought necessary, as well as the rising number of these cases. I would also have to consider the aggravating features which have been pointed out as well as others which I have also noted.

The respect of women

[23] The reason for the enactment of this law is the respect with which the Tongan society holds its women. The women are treated and accorded that respect from the moment they are born until they die. The purpose and reason for that respect is so that they remain and are regarded as virtuous (angama’a) and respectable (angamaau). Distances are maintained between them and men, especially brothers and fathers. They are kept and protected at home and are not allowed out at night except under escort. They do not go to or work in the bush and plantation for that reason. They only do the chores at home. And when young women are courted, they are courted at home. So that when a young woman is married, she is able to hold her head high that she is virtuous and respectable. She had known no man before her husband.

[24] That is why women are regarded as “hou’eiki fafine” (female chiefs), because the society treats them as such, because they are virtuous, and they hold themselves in society as such because they rightly deserve it.

[25] This law was enacted as law in Tonga in its present form in 1924, but long before then, long before the Europeans came, Tonga had always had its laws of respect for the women, because the women were always “hou’eiki fafine” from time immemorial.

The rising number of these cases

[26] The probation officers has stated her concern at the rising number of cases involving indecent assault and I agree with her. That means that despite the sentences which have been imposed by the Courts to try and stop such offences from being committed, the offences have not only continued but they have risen as well. That is of concern. If the sentences imposed have been the maximum sentence of 5 years imprisonment and the offences have continued to rise as they do, then one may properly think that Parliament may consider increasing the penalty for the offence. But when one finds that the sentences imposed have only been around the half way mark of the maximum of 5 years, one may properly conclude that the sentences imposed have not been high enough to be deterrent to would-be offenders.

The aggravating features

[27] You did have the right to plead not guilty and you exercised and used that right. But in doing so, you thereby required the complainant to stand up in Court and tell the public what you did to her and she did. You saw how she cried when she did that. She cried because she was telling the public how you had violated and destroyed her virtues, her dignity, her respect and her worth as a woman by touching and sucking her breast, and by inserting your finger into her vagina, and by showing her your penis and telling her to touch it. That only happened in the privacy of your car in a secluded area in the bush, but in exercising your right to plead not guilty, you forced her to tell the world what you did to her. You thereby humiliated and embarrassed her further.

[28] But what is worse, you knew you were guilty of the offences. You told the probation officer that you acknowledged that you did commit these 2 offences. Then why did you force the complainant to embarrass and humiliate herself by forcing her to give evidence of what you did to her in Court and in public? You did that to save yourself from the penalty which you deserve for the offence you committed. You could not, and you did not, care how much it would hurt the complainant to give evidence and to re-live the horror of what you did to her. All you cared about was to save yourself from the rightful penalty you deserve.

[29] Furthermore, you have shown no remorse at all for what you have done to her. You were indeed a father to her and she regarded you as her father. She trusted you as a father, to treat and protect her like you would protect your own daughter. She rode in the car alone with you because she trusted you, that you would not do anything to her in breach of that trust. You however breached that trust.

[30] You maintained at the trial that she consented to what you did to her. They why did she complain and maintained her story that she did not consent? That question was put to you by Crown counsel at the trial and you could not think of one reason why. Instead, after you were found guilty, you messaged the complainant on Facebook to make her feel guilty that she had complained to the police because you would go to prison and your children would go hungry. That was most improper of you to do that. I have to commend the complainant for maintaining her stance, namely, that you go to prison for what you did to her.

[31] Your offence was premeditated. You planned it by changing the routine of dropping off the complainant first at her school, and you dropped off your own daughter first at her school instead, so that you had the complainant alone with you in the car instead. And instead of taking her to her school you took her to the secluded area in the bush, despite her repeated requests that you take her to her school.

[32] As the complainant has said in the impact report, she has been severely and badly affected by what you did to her, as indeed as any girl her age would be affected. She even considered committing suicide. She lost her appetite. She lost sleep. She lost weight. She missed classes. She did not sit her exams. She has had to repeat them this year as a result. Just how bad and how long she will continue to be affected by what you did remains to be seen. It just goes to show how very serious the offence you have committed is.

Sentence

[33] I therefore consider, after considering these matters and the cases referred to, that the appropriate starting point for your case is 3 years imprisonment and to that I add 12 months for your breach of the trust you held making a total sentence of 4 years imprisonment.

Suspension

[34] I have to consider whether or not that, or any part of that, sentence may be suspended. Mo’unga v R [1998] Tonga LR 154 sets out 4 situations which would entitle a person to suspension. Those situations are as follows:

(a) Where the offender is young, has a previous good record or has had a long period free of any criminal activity.

That does not apply to you because you are not young, as you are 45 years old, and you have one conviction in 2013 for theft and one in 2016 for assault.

(b) Where the offender is likely to take the opportunity offered by the suspension to rehabilitate himself.

What is important in considering whether this ground is applicable is whether the offender is remorseful for what he did and it is shown by his acceptance of his fault by pleading guilty and by showing a willingness to change. You have not shown any such willingness, let alone you not guilty plea. Besides, it is a fact that the offence which you have committed is often committed by persons who had previously shown themselves to be of good behavior and character in the community. However, I consider that it is unlikely that you will reoffend and that you may rehabilitate yourself, and so may entitle you to partial suspension.

(c) Where despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, presence of provocation, or coercion by a co-offender.

That clearly does not apply to you because your offence was premeditated and you were not coerced by anyone.

(d) Where there has been cooperation with the authorities.

That does not apply to you either because you did not tell the police anything. Not even what you later told the Court in your evidence.

Orders

[35] Accordingly, I make the following orders:

(a) You, Lemoto Lui, are sentenced for the offence of serious indecent assault as convicted under count 1 of your indictment to 4 years imprisonment.

(b) You, Lemoto Lui, are sentenced for the offence of serious indecent assault as convicted under count 2 of your indictment to 2 years imprisonment.

(c) Both sentences under (a) and (b) are to be served concurrently and that the final year of the 4 year sentence be suspended for 3 years from the date of your release from prison.

(d) No person shall publish by any means anything by which the name or the identity of the complainant in this case may be revealed.

Niu J

Nuku’alofa: 1 July 2021 J U D G E