R v Fainga'anuku [2021] TOSC 139; CR 124 of 2021 (24 August 2021)

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

CR 124 of 2021

REX
-v-
PESIMONI FAINGA’ANUKU

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr F. Samani for the Prosecution
The Defendant in person
Date: 24 August 2021

The charges

1. On 15 July 2021, the Defendant pleaded guilty to one count of:
   • (a) serious indecent assault, contrary to ss 124(1) and (3) of the Criminal Offences Act (“the Act”);
   • (b) serious housebreaking, contrary to ss 173(1)(b) and (5) of the Act; and
   • (c) sodomy, contrary to s 136 of the Act.

The offending

2. In the early evening of 6 March 2021, the defendant, who was then 18 years of age, was making his way home after drinking alcohol earlier that day, when he saw a 14-year-old boy walking with his 19-year-old sister.
3. The Defendant approached them and grabbed the boy’s hand and told him to go with him. The boy refused but the Defendant kept pulling his hand. The boy’s sister took his hand and told the Defendant to leave. The Defendant then fondled the woman’s buttocks, which is the subject of count 1. The woman swore at the Defendant and she and her brother returned to their house nearby.
4. After they got home, the woman left for choir practice at their church next door while her brother remained at the house. Not long after, the Defendant suddenly entered the house (count 2) and told the boy that he would only leave if the boy sucked his penis. The Defendant and the boy then went to one of the rooms of the house where the Defendant removed the boy’s pants. The Defendant then sodomised the boy (count 3). He then told the boy to suck his penis which the boy did.
5. The boy then told the Defendant to leave in case those at the choir practice discovered them. He then went to take a shower. The Defendant followed the boy to the bathroom. The boy again told the Defendant to leave but the Defendant told the boy to bend over because he ‘wasn’t done yet’. The boy then ran to the living room and raised the alarm. The Defendant escaped out the back door. A few men chased the Defendant and apprehended him. He was taken to the local police station where he co-operated and admitted to the offending.

Crown’s submissions

6. The Crown submits the following as aggravating features of the offending:
   • (a) the defendant was intoxicated at the time of the offending;
   • (b) the act of indecent assault on the woman was done in the presence of her brother;
   • (c) the pretentious act of housebreaking has left the victims and their family in doubt as to the security in their own home;
   • (d) the act of sodomy is a vile and unnatural crime; and
   • (e) the offending has left the victims anxious to be in public.
7. The Crown submits the following as mitigating factors:
   • (a) the defendant is remorseful;
   • (b) he has no previous convictions;
   • (c) an apology was conveyed by the defendant’s mother; and
   • (d) his early guilty plea.
8. The Crown submits that there are no previous published decisions in Tonga involving sodomy of a male. It therefore relies on the following comparable sentences as the closest available to the instant case:
   • (a) Iketau [2016] TOSC 24 – the defendant, who was 17 at the time of the offending, pleaded guilty to sodomy and serious indecent assault. The female victim was 12 years of age. The defendant entered her house and clasped her mouth to keep her from screaming out for help. He strangled her while removing her pants and inserted his penis inside her anus. He also forced her to kiss and suck his neck. A starting point of 4 years’ imprisonment was set for the sodomy, which was reduced by 1 year for mitigation resulting in a sentence of 3 years’ imprisonment. For the serious indecent assault, the defendant was sentenced to 12 months’ imprisonment, to be served concurrent to the sodomy sentence, of which, the final 12 months was suspended on conditions.
   • (b) Valele [2019] TOSC 6 – the first defendant pleaded guilty to one count of housebreaking, theft and rape. The second defendant also pleaded guilty to one count of serious housebreaking, abetment to rape and sodomy. The defendants broke into the victim’s house and threatened to kill her while taking turns raping her. The second defendant inserted his penis in the victim’s anus several times. A starting point of 4 years’ imprisonment was set for the sodomy count and 4 years for the serious housebreaking count. For the rape, 8 years’ imprisonment was imposed. The sentences for the sodomy and serious housebreaking were to be served concurrently with the final 15 months suspended on conditions.
9. Here, the Crown submits the following sentence formulation:
   • (a) the head sentence is count 3;
   • (b) a starting point of 4 years’ imprisonment;
   • (c) reduced by 1 year and 6 months for mitigation;
   • (d) 3 years imprisonment for count 2, concurrently with count 3;
   • (e) 6 months’ imprisonment for count 1, cumulatively to count 3; and
   • (f) the final 12 months of the head sentence suspended on conditions.

Victim Impact report

10. The Prosecutor interviewed the victims and prepared a victim impact report, of which, the following is a summary.
11. Since the offending, the victims have a constant fear for their safety and feel anxious being out in public.
12. The male victim is reported not to have experienced any lasting physical harm but has felt anxious since. That the incident happened in his own home, where he thought he would be safe, now makes him doubt his safety elsewhere. He was unable to focus in school for the first few weeks after the incident but is doing well now. He is also paranoid as to what people might think of him if they find out what had happened to him. A few months after the incident, the Defendant came with his mother to apologise. However, because he was embarrassed to face the boy, the Defendant remained in the car while his mother made the apology on his behalf which the victim accepted. The apology was not accompanied by any gifts or financial reparation.
13. The female victim has not suffered distress from what happened to her although she sometimes feels anxious when in public for fear of running into the Defendant. She is, however, emotionally devastated for what happened to her younger brother.
14. The parents of the victims have also been emotionally devastated by the incident. They and their family have been subjected to ridicule and judgment, and they constantly fear for their children’s safety. They have accepted the apology on behalf of the Defendant because according to their religious beliefs, it is the right thing to do.

Presentence report

15. The Defendant is now 19 years of age. He is the second youngest of four children. He was educated to Form 2 at Liahona Middle School before being expelled for lack of attendance. He grew up in an unstable home with no sense of order to help keep him in place. His parents separated when he was young and he was mostly left under his grandparent’s care. When they passed away, he moved in with his mother and her de-facto partner. Eventually, the Defendant began living with his friends and without adult supervision.
16. The Defendant has a history of alcohol abuse since he was 11 years of age. He is also reported to sniff glue and is considered likely to use illicit drugs when available.
17. The Defendant has never been employed. He relies on his mother, who is also unemployed, for financial support.
18. The town officer describes the Defendant as a troublemaker within the community and has received complaints from people in the community regarding the Defendant’s rude and abusive behaviour.
19. In relation to the offending, the Defendant explained that, despite being drunk, he knew what he was doing but does not know why he did it. He stated that, since the incident, he no longer drinks alcohol, to which the probation officer expressed some scepticism.
20. The Defendant volunteered to the probation officer that in 2020 he was convicted in the Magistrates Court of unlawful assembly and riot for which he apparently did not receive any penalty. The court records reveal convictions around that time for abusive and profane language, obstruction by missile, rubbish and noise, and a number of other previous offences.^[1] The Defendant is also currently before the Magistrates Court on a charge of bodily harm which has been adjourned to 25 August 2021.
21. The Defendant expressed remorse and regrets his crimes. The probation officer assessed the Defendant as presenting a “moderate risk” of reoffending due to his transgressive behaviour, alcohol abuse and lack of parental/adult supervision and support. However, his youth and the fact that this is his first serious offending presents a high prospect for rehabilitation provided he receives treatment and proper support.
22. The probation officer recommends partial suspension on conditions including abstaining from alcohol and drugs and sexual abuse counselling.
    

Starting points

23. The statutory maximum penalties for the subject offences are:
    • (a) serious indecent assault - 5 years’ imprisonment;
    • (b) serious housebreaking - 10 years’ imprisonment; and
    • (c) sodomy - 10 years’ imprisonment.
24. The seriousness of the sexual offending here, particularly against the young male victim, attracts the directives explained in R v Pousima [2021] TOSC 131 at [27], namely, that:
    • (a) “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”; ^[2] and
    • (b) “to achieve the aims of denunciation, protection and deterrence in respect of sexual offending.... involving...a young adolescent victim, the Court will almost always be compelled to impose significant prison terms within the maximum penalties prescribed by Parliament”.^[3]
25. In Valele, ibid, a case involving a home invasion for the purpose of serious sexual assault, Cato J described the offending there as:

“Humiliating, wanton and degrading offending such as this.... must be denounced as reprehensible by this Court, and sentences must reflect the seriousness of this offending as a deterrent and as protection for wom(e)n against predatory sexual home invasions of this kind....”

26. In my view, that characterisation applies equally to the instant offending. I see no meaningful distinction in the abhorrence of a sexual attack on a woman in her own home and an equally defenceless young boy in his.
27. It follows from that observation that the distinction between the offence of rape in s 118 of the Act which carries a maximum penalty of 15 years imprisonment and sodomy (without consent), with a maximum of 10 years, may be more illusory than real.
28. Rape is defined in the Act, essentially, as carnal knowledge of a female without her informed consent. The term “carnal knowledge” is not defined in the Act. The term derives from carnal, meaning "of the flesh," and the Biblical usage of the verb know/knew, being a euphemism for sexual conduct.^[4] Most commonly, carnal knowledge is used to describe an act of sexual intercourse by penile penetration of the victim’s vagina. Section 140 of the Act provides that for both carnal knowledge and sodomy, proof of actual emission of seed is not necessary and that the offence shall be deemed complete on proof of penetration only. Despite that similarity, the offences of vaginal rape and anal sodomy are treated differently.
29. Even though the Act confines rape to a female victim, it does not limit the offence of sodomy to one gender of victim or another. As this case demonstrates, sodomy can be inflicted on either. And yet, if a woman is sodomised without her consent (which amounts to anal rape), the offender will not be charged with rape but the lesser (by penalty only) offence of sodomy. Conversely, if a male is sodomised with or without his consent, the same offence applies (although a harsher sentence would likely result in the latter case albeit limited to the statutory maximum of 10 years).
30. The rationale for the distinction is unclear. It is made even more unclear by ss 121 to 123 which deal with carnal knowledge (and attempted carnal knowledge) of a child or young person. Unlike s 118 (rape), those provisions do not specify the gender of the victim to which they apply. The reference to the act of carnal knowledge may imply that they are only intended to apply to female victims. But the failure of the drafting to expressly refer to a female as it does for rape leaves the answer to that question uncertain.
31. For those offences, consent is deemed impossible. Therefore, if a male offender has vaginal intercourse with a girl under 12 years of age, the maximum penalty is life imprisonment. However, if the same male sodomises the same girl (or a boy), the maximum penalty is only 10 years imprisonment.
32. Any rationale for the difference in penalties based on an assumption that all offences of sodomy involve consent, whereas rape, by definition, does not, fails at the first hurdle as this case demonstrates. Similarly, it is difficult to see how any possible rationale based on the difference in potential physiological results of the two acts, with pregnancy only possible in cases of vaginal intercourse, can adequately justify the difference in criminality as ascribed by the legislation or the physical, mental and emotional harm inflicted on both female and male victims of any form of non-consensual sexual intercourse.
33. Accordingly, I recommend that consideration be given to amending the Act to redefine the crime of rape to reflect the criminality of offences involving non-consensual vaginal or anal penetration in a more simplified, uniform and gender-neutral manner.
34. In the instant case, the sodomy is clearly the head count.
35. Having regard to the seriousness of the offending, the statutory maximum penalty, the comparable sentences and principles referred to above, I set a primary starting point for that count of 4 years imprisonment.
36. However, and despite the lack of explanation for the manner in which the indictment was intended to deal with it, I consider the oral sex inflicted on the victim after he was sodomised to be an extra and serious circumstance of aggravation. To reflect that, I increase the starting point on count 3 to 5 years imprisonment.
37. For the serious housebreaking (count 2), I set a starting point of 3 years imprisonment.
38. For the serious indecent assault of the female victim (count 1), I set a starting point of 12 months imprisonment.

Mitigation

39. For the Defendant’s early guilty plea, apparent lack of any serious previous convictions and remorse, I reduce the starting points by 30%, which results in sentences (rounded down) of:
    • (a) count 1 – 8 months imprisonment;
    • (b) count 2 – 24 months imprisonment; and
    • (c) count 3 – 42 months imprisonment.

Concurrent vs cumulative

40. I substantially agree with the Crown’s submission that as count 1 concerned a different victim, it is appropriate that part of that sentence should be added to the head sentence on count 3.^[5] I therefore order that 6 months of the sentence on count 1 be served cumulatively with the sentence on count 3.
41. Further, in my view, part of the sentence for count 2 should also be added to the head sentence. Although it may be said that counts 2 and 3 are unrelated, this, in my view, was not an ordinary housebreaking for the purpose of trespass or even a property offence such as theft. In this case, the Defendant targeted the young male victim, waited for his older sister to leave the house and then invaded their family home for the express purpose of sexually abusing him. In those circumstances, and having regard to the totality principle, I consider it appropriate to also order that 6 months of the sentence on count 2 be served cumulatively with the sentence on count 3.
42. Accordingly, the resulting effective sentence is 54 months (or 4 ½ years) imprisonment.^[6]
43. After taking into account the overall criminality of the offending and what follows in respect of suspension, I do not consider that the resulting sentence can be considered a ‘crushing’ first period of imprisonment.

Suspension

44. The considerations in Mo’unga [1998] Tonga LR 154 at 157 favour some suspension. The Defendant is very young. These are apparently his first serious offences. He co-operated with the police and pleaded guilty at the earliest opportunity which spared the victims the stress and indignity of having to give evidence as well as saving the State valuable time and expense.
45. I also accept that, with appropriate education, supervision and support, the Defendant is likely to take the opportunity for rehabilitation not only in respect of the instant offences but also his underlying alcohol and other substance abuse problems which have been a major factor in the downward spiral to his current plight.
46. Taking all those factors into account, I consider it appropriate to order that the final 2 years of the sentence be suspended on conditions as set out below.
47. Even though the Defendant was 18 at the time of offending and therefore not strictly speaking a ‘child’ as defined by the UN Convention on the Rights of the Child, I have nonetheless considered the relevant principles of the Convention in arriving at the above sentence formulation, including that imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.
48. In the result, and subject to compliance with the conditions below and any remissions granted pursuant to Part III, Division 7 of the Prisons Act, the Defendant will be required to serve 30 months (or 2 ½ years) imprisonment.

Result

49. The Defendant is convicted of:
    • (a) serious indecent assault and sentenced to 8 months’ imprisonment;
    • (b) serious housebreaking and sentenced to 24 months imprisonment; and
    • (c) sodomy and sentenced to 42 months imprisonment.
50. Six months of the sentences for each of counts 1 and 2 are to be served cumulatively to the sentence on count 3, making a total effective sentence of 54 months (or 4 ½ years) imprisonment.
51. 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;
    • (d) reside where directed by his probation officer; and
    • (e) complete courses on sexual abuse and alcohol and drug abuse at the direction of his probation officer.
52. 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.
53. In light of the Defendant’s young age, I direct that during his incarceration, the Defendant is to:
    • (a) be kept separate from the adult inmates to the greatest extent possible; and
    • (b) receive such rehabilitative counselling as may be available.
54. I further direct that the identity of the victims in these proceedings shall not be published in the Kingdom in a written publication available to the public or be broadcasted in the Kingdom.

NUKU’ALOFA	M. H. Whitten QC
24 August 2021	LORD CHIEF JUSTICE

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^[1] CR 705/2020 and CR 707/2020.
^[2] Citing ‘Asa [2020] TOSC 72 at [39] referring to Langi [2013] TOSC 21 at [8].
^[3] Citing P.F. [2020] TOSC 30.
^[4] Genesis 4:1.
^[5] R v 'Asa [2020] TOSC 72 referring to Kolo v Rex [2006] TOCA 5 at [11]; Hokafonu v Rex [2003] TOCA 3 at [51]; and Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624.
^[6] 42 + 6 + 6 = 54.