R v Tukitoa [2021] TOSC 128; CR 49 of 2021 (10 June 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 49 of 2021

REX

-v-

TEVITA TUKITOA

BEFORE HON. JUSTICE NIU

Counsel : ‘Inoke Finau for the Crown

Lesina Tonga for the Accused

Plea : Guilty on 15 April 2021

Submissions : for the Crown on 10 May 2021

for the accused on 24 May 2021

Sentencing : 10 June 2021

SENTENCING

Offence

[1] Tevita Tukitoa, you have committed indecent assault on a child in 2017 and I will refer to that child as “the child” because I have ordered that there shall be no publication of the name or of any particular of the complainant child or anything by which her name or identity may be revealed, and I will confirm that order in this sentencing.

[2] I will not repeat what you did to her but you pleaded guilty to that act on 15 April 2021, namely, that you committed the act on her in 2017. The child is now 9 years old.

[3] What you did to her is an offence under S.125(1) of the Criminal Offences Act, and S.125 provides as follows:

“125(1) Any person who shall commit an indecent assault on any child under the age of 12 years shall be liable on conviction thereof to imprisonment for any term not exceeding 7 years.

(2) It shall be no defence to any prosecution for an indecent assault on a child under the age of 12 years to prove that he or she consented to the act of indecency.”

Crown Submissions

[4] Mr Finau for the Crown says that you have 2 previous convictions, one in 1997 for drunkenness for which you were fined $45.00 and the other in 2002 for being in enclosed premises at night for which you were sentenced to 3 months imprisonment but fully suspended for 9 months.

[5] He says that you have only 2 mitigating factors in your favour, namely:

(a) your early guilty plea, and

(b) your clean record since 2002.

[6] Against that, he says that you have the following aggravating features:

(a) this was an indecent assault on a 6 or 7 year old girl;

(b) you held a position of trust because you were living with the child’s parents and the child at the time; and

(c) the child may be adversely affected by what you have done.

[7] He refers to the case of R v Motuliki (CR 106/2019) who being 56 year old pleaded guilty to indecent assault like what you did on a 5 year old girl who lived next door. A starting point of 24 months imprisonment was reduced by 5 months for his early guilty plea and a further 3 months for having had no previous conviction, leaving a sentence of 16 months imprisonment, with the last 8 months being suspended for 2 years on conditions:

(a) not to commit any offence punishable by imprisonment during the period of suspension,

(b) he was placed on probation to live where directed and not to live in any place where there are children under 12 years age, and

(c) he was to attend and complete courses on life skills and sexual abuse as directed by the Probation Services.

[8] Mr Finau accordingly recommends that the starting point for your sentence should be 30 months and that it be reduced by 6 months because of your early guilty plea and that only a partial suspension be granted in respect of the remaining 24 months in accordance with the principles in Mounga v R [1998] Tonga LR 154.

Your counsel’s submissions

[9] Your counsel, Ms Tonga, has made a full report on your personal circumstances. She says you are 47 years old, unmarried, without children, and you are the fourth of 7 children of your parents. Your father left to the U.S in the early 1980s and you have not heard from him since, and your mother had to bring you all up by herself and she died in 2015. You then went and lived with your cousin and his wife and children from 2016 up to now.

[10] She says that you told her that you did not do well at school and that after you repeated form 3 at Liahona High School you left school. That would have been about late 1980s.

[11] You told her that you joined a farming work group and planted crops for family consumption and that over the years you increased your crops to commercial farming and that you now farm 2 tax allotments with commercial crops. Your farming group leader has written and confirmed that and he says that you have peanuts which would be ready for harvest in June 2021. He says that you are an honest and quiet person and that you are conscientious and hardworking and are a driving force and encouragement to all your farming group members.

[12] Your counsel says that you told her that it was your drunkenness that had caused you to do what you did to the child, and that you are remorseful and so ashamed of what you have done. You told her that you have gone and apologised to the child’s father and that he accepted your apology.

[13] You have told your counsel that you have stopped drinking alcohol altogether and that you have now closely followed your bishop’s counselling and teaching.

[14] Your counsel has submitted that because you have pleaded guilty and cooperated with the police, apologised to and have reconciled with the child’s father, remorseful, have remained trouble free since 2002, that you have stopped drinking and because you have crops to attend to, you should be granted a fully suspended imprisonment sentence or alternatively a discharge without conviction under S.204 of the Criminal Offences Act.

Consideration

[15] I have to say straightaway that a discharge without conviction should never be ordered in respect of a sexual offence, let alone an offence against a child, especially a female child, under 12 years old. The offence of indecent assault on a child under 12 years of age was punishable with imprisonment of up to 5 years, the same punishment that is applicable to indecent assault of females of 12 years of age and older. But in 1990 the law with regard to indecent assault on a child below 12 years of age was amended to provide a sentence of up to 7 years imprisonment. That is the law that applies to this case. So I do not see any justification to order a discharge without conviction for what should the Legislature has intended to be a much more serious offence and one which should be punished more severely. That law is intended that sentences for such offence must be such that they are a deterrence to the offenders and that such sentences must convey the condemnation of such offences by the society. The protection of young children deserves nothing less.

[16] That is because one cannot repair or put right the damage you have perpetrated upon this child. No one can put right that damage because it is a psychological and mental damage that has been caused. No amount of remorse or self-torment of the perpetrator can undo what he has done. Your guilty plea and clean record and cooperation with the authority have not undone what you have done to this girl.

[17] And moreover, your offence was caused by your drinking, which is something you knew you could have done without, but which you chose to do knowing you do not control yourself when you do.

[18] And as for your crop of peanuts which is about to be harvested in June, this month. That cannot save you from serving the prison sentence required by the law either. You were charged with this offence on 1 December 2020. You knew that your case would be committed to this Court because you had confessed to the police that you committed the offence. Yet, you prepared your plot of land for planting of your peanuts. And after you were committed to this Court on 3 March 2021, you then proceeded to plant your crop of peanuts. A crop which must be harvested immediately upon reaching 3 months of growth, otherwise the peanuts would break off from the roots when they are uprooted, and would be lost or be collected by hand and incur more costs. Your sister and her husband will have to do the harvesting for you, and no doubt with the help of your farming group.

[19] The Crown has suggested that the appropriate sentence for you is 30 months imprisonment. But that would only be half of the maximum sentence for ordinary indecently assault which is 5 years imprisonment. It cannot be deterrent enough for an offence which the Legislature has provided to have a maximum sentence of 7 years imprisonment.

[20] I consider that a deterrent sentence for the offence which you have committed, which offence has a maximum sentence of 7 years imprisonment, is 4 years imprisonment. But in view of your guilty plea and clean record since 2002, I would deduct 6 months leaving a sentence of 3 years 6 months imprisonment.

[21] As to suspension of part of that sentence, I consider that you would be likely to take that opportunity to stop drinking alcohol and consider making a family of your own. However, I must consider that the part suspended does not render the sentence less deterrent than it should be.

Sentence

[22] Accordingly, I sentence you for the offence of indecent assault which you have committed upon this child who is under 12 years of age to 3 years 6 months imprisonment but with the last 12 months being suspended for a period of 2 years from the date of your release from prison, and upon the following conditions:

(a) that you take and complete the Salvation Army course of alcohol and drug awareness;

(b) that you be placed on probation to live where directed;

(c) that you do not drink any alcohol or take any drug; and

(d) that you do not commit an offence punishable by imprisonment within the period of suspension.

[23] I order that there shall be no publication by any person of the name or any particular of the complainant child or of anything by which her name or identity and be revealed.

Niu J

Nuku’alofa: 10 June 2021 J U D G E