R v Pousima [2021] TOSC 131; CR 8 of 2021 (19 August 2021)

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

CR 8 of 2021

REX
-v-
SAMIU ‘EKUASI POUSIMA

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Ms T. Kafa-Vainikolo for the Prosecution
Ms L. Tonga for the Defendant
Date: 19 August 2021

The charges

1. On 12 July 2021, the Defendant pleaded guilty to an amended indictment presenting:
   • (a) two counts of serious indecent assault, contrary to ss 124(1), (3) and (6) of the Criminal Offences Act (“the Act”); and
   • (b) one count of rape, contrary to ss 118(1)(c) and (2) of the Act.

The offending

2. As at November 2019, the defendant and the female victim were neighbours, living a few houses apart. He was 70 years of age; she was 15. The victim has been psychiatrically assessed as suffering from mild to moderate intellectual disability.
3. On a number of occasions between November 2019 and May 2020, at her request, the defendant gave the victim money. On three separate occasions in May 2020, the defendant fondled and licked the victim’s vagina, sucked her breast, and, on the last occasion, the defendant took the victim to a lodge that belonged to his sister where he had sexual intercourse with the victim before then dropping her off at a store and giving her $75.
4. When the victim's younger brother raised concerns about the various amounts of money she had been seen with on several occasions, the victim told her uncle that the defendant had given her money because he had sexual intercourse with her. A formal complaint was then lodged with the police. A medical examination corroborated the complaint. Upon his arrest, the defendant admitted the allegations and that he knew, at the time of the offending, that the victim had a ‘mental disorder’.
   

Crown’s submissions

5. The Crown submitted the following as aggravating features of the offending:
   • (a) the age disparity between the defendant and the victim;
   • (b) the defendant was in a position of trust which he breached;
   • (c) the victim's psychiatric condition; and
   • (d) the effects of the offending on the victim and her family.
6. The Crown submits the following mitigating factors:
   • (a) no previous convictions;
   • (b) early guilty plea; and
   • (c) remorse.
7. The Crown referred to the following comparable sentences:
   • (a) ‘Asa [2020] TOSC 72 – the defendant pleaded guilty late to rape and serious indecent assault. The victim was 23 years of age. The defendant tied her hands to a window and gagged her to prevent her from screaming for help while he removed her clothes and had sexual intercourse with her. A starting point of 6 years’ imprisonment was imposed for the rape and 3 years for the serious indecent assault. For the defendant’s guilty plea and lack of previous convictions, the starting point was reduced by 25%, resulting in a head sentence of 4 ½ years for that rape and 2 years and 3 months for the serious indecent assault, to be served concurrently. The final 12 months was suspended for 2 years, on conditions.
   • (b) Hu’ahulu [2014] Tonga LR 249 (CA) – the 27 year old appellant was convicted after trial of raping a 23 year old feeble minded woman and was sentenced to 13 years’ imprisonment with the final 3 years suspended. The Court of Appeal reduced the starting point to 6 years’ imprisonment, which was reduced by 1 year for mitigation resulting in a sentence of 5 years’ imprisonment, of which, the final 12 months was suspended for a period of 2 years.
   • (c) Langi [2013] TOSC 21 – the defendant pleaded guilty to raping an 18 year old feeble minded woman as retribution for an argument with his girlfriend. Cato J set a starting point of 5 years’ imprisonment. That was reduced by 40% on account of the defendant's guilty plea, his youthful age and lack of previous convictions, resulting in a sentence of 3 years’ imprisonment. The final 15 months were suspended on conditions.
   • (d) Fonua [2013] TOSC 25 – the 62 year old defendant pleaded guilty to raping a 43 year old woman who was diagnosed with mild to moderate retardation. A starting point of 6 years’ imprisonment was imposed, reduced by 2 years for mitigation, resulting in a sentence of 4 years’ imprisonment. The final 2 years were suspended on conditions.
8. Here, the Crown submits the following sentence formulation:
   • (a) the head sentence is the rape count;
   • (b) the youth and mental state of the victim justify a higher starting point for the rape count of 6 - 7 years’ imprisonment;
   • (c) reduced by 25% for mitigation;
   • (d) partial suspension of 2 to 3 years; and
   • (e) 2 to 3 years’ imprisonment for the serious indecent assault, to be served concurrently.

Victim impact report

9. The prosecutor interviewed the victim and prepared a victim impact report which I have considered in full. The following is a summary of the information contained in the report.
10. As a child, the victim’s family knew she was different and intellectually slower than other children. Until this proceeding, she had not been formally diagnosed. Her family avoided the hospital in order to protect the victim and in the hope that she might have a normal childhood and not be treated differently.
11. Prior to the subject assaults, the victim was a student at Beulah Adventist College. As a result of the offending, she no longer attends school and resides with her paternal grandmother and aunt.
12. Since the offending, the victim’s behaviour is reported to have changed from being carefree and childlike to someone who tries to act like and wants to be treated as a grown woman. Her uncle believes that the victim was lured by the defendant through gifts of money. As a result, the victim has lost her childlike innocence. The incident has also caused the family much embarrassment.
13. According to those family members interviewed, the defendant has not sought forgiveness. His wife and children offered a traditional apology on his behalf with gifts of money and Tongan artefacts, which was accepted by the victim’s family.

Presentence report

14. The defendant is now 71 years of age. He was the third of six children. He left school without any formal qualification. When his parents died, he cared for his younger siblings.
15. The defendant was employed in the civil service, eventually as a carpenter, for 40 years before retiring.
16. He is married with 7 children, the youngest of whom still lives at home. His wife suffers from hypertension, heart disease and had a stroke in 2018. As a result, her mobility is limited and she is dependent on the defendant for assistance and most household duties, including taking their granddaughter to and from school. His wife reported the defendant as having a long history of alcohol abuse and engaging in extra-marital affairs.
17. I have considered the seven letters of support attached to the report from the defendant’s town officer, the Principal of ‘Api-Fo’ou College and representatives of various church organisations. They paint a commendable picture of a man who continues to contribute generously to the community through construction works.
18. In relation to the offending, the defendant explained to the probation officer that his relationship with the victim started to develop in September 2019 when she often asked him for money and he gave it. He also drove her to school on occasion. He stated that the main reason for committing the offences was his inability to control his “sexual arousal feelings”, although he also blamed the victim for her “flirtatious behaviour towards him”.
19. The Defendant expressed remorse. He acknowledged that his actions have brought shame upon his family for which he is embarrassed. However, he says he has reconciled with his own family members. The probation officer confirmed that the defendant's wife and other family members apologised to the victim and her family with gifts of money and Tongan artefacts, which were accepted.
20. By reference to the age disparity between the defendant and the victim, his position as equivalent to a father or grandfather, that he knew the victim before the offences and of her mental state, the clear breach of trust and abuse of authority when he took advantage of her and her vulnerability, that the offending was premeditated and that the defendant blamed the victim, the probation officer assessed the defendant as "a dangerous person".
21. Notwithstanding, by reason of the defendant’s demonstrated remorse and reconciliation with his own family and that of the victim, the probation officer recommended partial suspension of any prison sentence on conditions including sexual abuse counselling.

Defendant’s submissions

22. Apart from confirming and elaborating upon the defendant’s history and personal background as referred to in the presentence report, counsel for the defendant submitted that the defendant should be given a lesser sentence than that proposed by the prosecution for the following reasons, in summary:
    • (a) the defendant assumed the role of a parent to his younger siblings when his parents died and worked hard to provide for them;
    • (b) during his employment, he managed to work his way up before retiring in August 2010;
    • (c) since his retirement, the defendant has dedicated his time to working with Catholic Church groups in building and repairing homes for people in the community in need of assistance;
    • (d) he is the sole breadwinner for his family and caretaker for his wife, who relies heavily on him;
    • (e) he was not well acquainted with the victim. He only came to know her in November 2019 when she approached him at his home for a ride to school. She asked again on different occasions for a ride, which he refused, and he gave her money for bus fares instead. She reappeared in February 2020 asking for money again;
    • (f) in May 2020, he made a “foolish mistake” when he committed the offence of rape by having sexual intercourse with the victim;
    • (g) he has made a commitment to himself that he will never make the same mistake again and used his time in custody to reflect on this;
    • (h) his wife and family sought and received forgiveness from the victim’s family;
    • (i) the defendant regrets what he did and will have to live with the shame of it for the rest of his life;
    • (j) the statement in the probation report that the defendant blamed is incorrect. He was only giving an explanation of the offence and what happened. He did not intend to lay blame on the victim. He takes full responsibility for his behaviour; and
    • (k) reliance was placed on the same letters of support attached to the presentence report.
23. On that basis, Ms Tonga submitted that any sentence of imprisonment should be partly suspended on conditions and “further reduction with community service”.

Starting points

24. The statutory maximum penalty for rape is 15 years’ imprisonment and 5 years for serious indecent assault.
25. Section 118(1)(c) of the Act defines rape to include carnal knowledge with a female, being aware that she is, inter alia, feeble minded. In the report on his psychiatric assessment of the victim, Dr Puloka recorded that the defendant threatened the victim not to inform anyone about their sexual contact and the victim complied for some time. He then opined that:
    • (a) the sexual activities between the victim and the accused were forced on the victim by the accused against the victim's will;
    • (b) the victim’s psychiatric condition deprived her of any knowledge about sexual activities; and
    • (c) therefore, the victim did not possess the required informed consent for the sexual activities forced upon her.
26. The following observations in 'Asa, ibid, are apposite to the instant case:

“39. ... 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. ...”

27. Further, sexual offending involving young victims has been described as alarmingly prevalent in the Kingdom. “With the possible exception of the relatively recent rise in serious drug related offences, sexual offences, especially against the young are one of the most damaging ills to the moral and legal integrity of any society”. Therefore, “to achieve the aims of denunciation, protection and deterrence in respect of sexual offending.... involving an adult offender and a young or adolescent victim, the Court will almost always be compelled to impose significant prison terms within the maximum penalties prescribed by Parliament”: P.F. [2020] TOSC 30.^[1]
28. The settled starting point for rape in Tonga is 5 years’ imprisonment: Fa'aoso v R [1996] Tonga LR 42, confirmed in 'Aisea v Rex [2012] TOCA 12. That primary starting point, and the rationale for it, has been applied in numerous decisions since those cited, and reflects a basic level of criminality and seriousness of offending for ordinary cases involving sexual intercourse between two adults without the female’s consent.
29. Here, however, there are significant aggravating features. The much older defendant knowingly took advantage, and used the body of, a young, intellectually disabled girl, whom he had known for some time, for his own sexual gratification. The combination of the earlier incidents of serious indecency and gifts of money tend to support an inference that the defendant groomed the victim for the purpose of ultimately having sex with her.
30. Therefore, as in ‘Asa,^[2] I consider it appropriate to add 1 year on account of the victim being feebleminded and which the defendant knew. I also consider it appropriate to add an extra 1 year on account of the victim’s young age. That makes a total starting point on the rape count of 7 years imprisonment. Had there been any physical violence involved, the starting point would likely have been higher.
31. For each of the serious indecent assaults, I set a starting point of three years imprisonment,^[3] to be served concurrently (despite them occurring on separate occasions) with each other and the sentence for the rape count.

Mitigation

32. For the defendant’s relatively early guilty plea, good previous record and demonstrated remorse, I reduce the starting points by one third, resulting in sentences of 4 years and 8 months’ imprisonment for the rape and 2 years for each of the serious indecent assaults.

Suspension

33. Having regard to the considerations in Mo’unga [1998] Tonga LR 154 at 157, the factors against suspension include that the defendant is not young; the offending involved premeditation; and, based on Dr Puloka’s report, I reject any suggestion that the young, intellectually disabled victim provoked the defendant through asserted flirtatious behaviour.
34. Factors in favour of some suspension include the defendant’s previous good record (enhanced by his charitable works); that the defendant is, in my view, likely to take the opportunity offered by the sentence to rehabilitate himself; and that he cooperated with the authorities. I also add to these the defendant’s advanced age.
35. I am mindful of the defendant’s wife’s dependence on him due to her medical conditions. But that must be balanced against the other mandated sentencing objectives and considerations, including, not least, the effects of the offending on the victim. Further, insofar as this part of the defendant’s submissions amounts to a “breadwinner plea”, the Courts have repeatedly stated that:^[4]
    • (a) such a plea carries little weight;
    • (b) the likely hardship caused by the defendant’s incarceration to his family cannot be an overriding mitigating factor in cases where the objective gravity of the offences and the presence of aggravating factors call for a custodial sentence; and
    • (c) the fact that the offender is the breadwinner for his family, is not, and is rarely likely ever to be, on its own, a proper reason for suspending a sentence.
36. In that regard, I note that the defendant’s youngest daughter is still at home. According to Ms Tonga’s submissions, that daughter has a diploma in information technology and works at Costlow. There is no suggestion in the material that she is not capable of assisting her mother.
37. Weighing all those factors in the balance, I consider it appropriate to order that the final two years of the head sentence be suspended on conditions. But for the defendant’s age and otherwise good standing in the community, I would have been minded to only suspend the final year.
38. In the result, and subject to compliance with those conditions and any remissions available under the Prisons Act, the defendant will be required to serve 2 years and 8 months (or 32 months) in prison.
39. I decline Ms Tonga’s suggestion of further reducing the period of imprisonment by imposing community service. The defendant’s age, particularly when he is released, militates against that proposal.

Result

40. The Defendant is convicted of:
    • (a) rape and sentenced to 4 years and 8 months’ imprisonment; and
    • (b) two counts of serious indecent assault and sentenced to 2 years’ imprisonment on each, to be served concurrently with each other and the sentence for the rape count.
41. The final 2 years of the sentence is to be suspended for a period of 3 years from the date of the defendant’s release from prison, on condition that during the said period of suspension, the defendant is to:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within 48 hours of his release from prison; and
    • (d) complete a course in sexual abuse counselling as directed by his probation officer.
42. Failure to comply with the above conditions may result in the suspension being rescinded, in which case, the defendant will be required to serve the balance of his sentence.
43. Pursuant to s 119 of the Act, I direct that the identity of the victim in these 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
19 August 2021	LORD CHIEF JUSTICE

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^[1] [25], [26] citing R v ‘Vailea & Pepe [2020] TOSC 27.
^[2] [47]
^[3] Per ‘Asa at [49] referring to Lolohea (unreported, CR 58 of 2016, 13 December 2016, Cato J), Mailau [2017] TOSC 39 and Felemi [2018] TOSC 76.

^[4] E.g. see Rex v P.F. [2020] TOSC 30 at [31] and decisions cited therein.