R v Tatafu [2021] TOSC 178; CR 167 of 2021 (14 December 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

REX

-v-

FALAKIKO TATAFU

BEFORE HON. JUSTICE NIU

Counsel : Mrs Lute Fakatou Aonima for the Crown

The Accused for himself

Plea : Guilty on 18 October 2021

Report : by Probation Officer, ‘Ema To’ia on 15 November 2021

Submissions : by Mrs Aonima on 24 November 2021

Sentencing : 14 December 2021

SENTENCING

Offences

[1] You, Falakiko Tatafu, have committed 2 offences of serious indecent assault on the complainant girl at Matahau on 13 June this year, namely –

(a) by fondling her breast and

(b) by fondling her vagina

without her consent.

[2] She complained and the police arrested you and you admitted that you did commit those acts.

[3] You were charged with those offences before me on 23 September 2021 and you pleaded not guilty and your trial was set down to be held on 18 October 2021, but before the trial began that day, you changed your plea and pleaded guilty to the two offences.

[4] It is said in the summary of facts that you have a hut, which I take to mean it was separate from the house in which you and your partner, Sela, sleep. On the day of these offences, the complainant and another girl were lying on the bed and you walked in and spread the complainant’s leg and copulated between her legs like you were having sexual intercourse with her and fondled her breast and her vagina. The complainant pushed you off and you got up and kicked her in the mouth and you then watched porn and masturbated in the presence of the two girls.

[5] The complainant then went and made her complaint and the police came and arrested you.

Previous Conviction

[6] Crown counsel says that you have one previous conviction, namely that you were convicted in 2017 for drunkenness and were fined $300.

Report

[7] The Probation officer Ms To’ia, says that you are 37 years old, you live with a partner and with the partner’s 5 children from her previous marriage, since 2019, and that you are a self-employed carpenter and that you earn between $500 and $600 per week, and that you not only maintain your partner and children but also your parents.

[8] The Officer says that you told her that you did lie on top of the complainant but that you did not do what she said that you did, as I have stated above. The officer says that she spoke with the girl who was present at the time and that she confirmed the things that you did which are stated in the summary of fact. The officer therefore says that you in fact deny that you committed these offences.

[9] But that you then told the officer that you were sorry for what you did and that you ask that you be given a chance to change yourself to be a better person.

[10] She accordingly recommends that you may be granted a partial suspension of your sentence and that you serve some community work and to take the life skills course of the Salvation Army.

Crown submissions

[11] Mrs Aonima for the Crown, says that there many aggravating features against you, namely:

- the seriousness of your offences,

- you have a previous conviction,

- you have not been forgiven by the complainant,

- you have a vast age difference to the complainant namely, 37 to 12

years of age (25 years),

- you kicked the complainant’s mouth after she pushed you off her,

- you were in a position of trust in that you allowed girls to come into your hut and not harm them before then,

- you are not remorseful for what you have done,

- you watched porn and masturbated for others to see,

- you have adversely affected the complainant by what you did to her for the rest of her life.

[12] Counsel refers to 5 cases of serious indecent assault similar to your case and the sentences which were imposed on the accused persons in those cases and the reasons for the sentences imposed. Those are the cases of Tupou (CR 35/14), Latu (CR111/14), Halalupe (CR72/17), Afeaki (CR208/19) and Vea (CR 251/20)

Victim Report

[13] She then gives a victim report of her interview of the complainant.

[14] She relates what the complainant told her about these offences. She says the complainant said that she went with a girl friend to the hut that morning and there were others there and they, the complainant, and her friend laid on the bed and that you then came into the hut and spread her legs and started copulating on top of her and fondled her breasts and then began to fondle her vagina, and that the complainant pushed you off her. You then got up and kicked her in the mouth and then watched porn and masturbated yourself for everyone to watch.

[15] The complainant told counsel that you have never apologized to her and that you even swear (or curse) at her when you would by chance meet her. She told the counsel that she knew that you hate her for making the complainant to the police, and that she has not forgiven you for what you did to her up to now.

Recommendation

[16] Crown counsel therefore recommends, based upon the sentences in the cases she refers to, and the aggravating features she has outlined, that you be started off with 18 months imprisonment, for the offence of fondling the vagina as in Afeaki’s case, and that another 12 months be added to it for the offence of fondling the breast, in view of the vast difference of your ages and for your lack of remorse. That makes 30 months, but she says that 6 months be deducted for your guilty plea, leaving a balance of 24 months, which was the final sentence in the Afeaki case as well.

[17] She says that that sentence may partly be suspended in view of your cooperation with the police upon your arrest, but she does not say how much of your sentence may be suspended.

Your submissions

[18] You were to file your submission by 29 November 2021 but you did not do so. You however submitted letters from:

- your partner, Sela,

- your mother, Tapaita,

- the town officer of Matahau, Luiloi Fanguna,

- the member of Parliament, Losaline Ma’asi, and

- the parish priest, Father Taniela ‘Enosi.

[19] All those letters say how good a person you are – that you are a good loving and hardworking “father” and “husband”, son, church member and village member. They all ask that you be given a second chance, which I take to mean that you do not go to prison.

Seriousness of the offences

[20] In considering your sentence, such as has been done by the judges in the 5 cases referred to by Crown, as well as other cases of serious indecent assault, I have to uphold the seriousness with which the offences with regard to women and to young girls are regarded. Women are regarded with respect which are not accorded to men or boys. We all protect the women and girls and we save them from harm at all times anywhere regardless of relationship by blood or otherwise. We treasure the virtues they have. Their persons are sacred and are their only possession. They are accorded honour and respect because of that.

[21] You were taught that when you grew up, by your parents and by your priest in church. You ought to have known that it was not appropriate for young girls to come into your hut because of the risk that their persons may be violated and thereby destroy the honour and respect that they should have.

[22] Yet, you encouraged them to come into your hut and on this occasion you did not protect them, and instead you yourself violated the person of the complainant. It would thereby appear that you were encouraging the young girls to come to your hut for your own personal gratification instead.

[23] That makes your offence more serious.

[24] The law provides that the sentence for serious indecent assault may be up to 5 years imprisonment because of the seriousness of such conduct.

Imprisonment

[25] I agree with both the probation officer and Crown counsel that the appropriate sentence for your offences is imprisonment. Any other sentence would not be appropriate in view of the seriousness of your offences.

Duration

[26] As to duration of the imprisonment, I agree that the sentence for fondling of the vagina be 18 months and that the sentence for fondling of the breast be 12 months, but I do not agree that the two sentences be consecutive, such that you serve 30 months, such as is recommended by Crown counsel. The 2 offences were committed in the course of the same act of lying on top of the complainant at that one time, and not on two separate occasions. I consider that they be served concurrently instead so that you serve only 18 months.

Suspension

[27] As to suspension of that imprisonment or part of that imprisonment, I agree that you cooperated with the police and that entitles you to some suspension. And I also consider that being the breadwinner for your family does not entitle you to a full suspension of an imprisonment sentence for a sexual offence such as you have committed, because of the seriousness of such offence. I consider that your family may have difficulties whilst you will be in prison but you ought to have thought of that. You have 4 siblings who would have to help out with your family. Your carpentry work will just have to stop until you return.

Sentences

[28] I therefore sentence you as follows:

(a) for the offence of fondling the complainant’s breasts, to 12 months imprisonment;

(b) for the offence of fondling the complainant’s vagina, to 18 months imprisonment;

(c) both sentences in (a) and (b) above be served concurrently;

(d) the last 9 months of the sentence shall be suspended for 2 years after you are released from prison upon the condition that you do not commit an offence punishable by imprisonment during the period of suspension.

[29] I order that no person shall publish or cause to be published the name or identity of the complainant in this case or any particular by which her name or identity may be identified in any media or by any means whatsoever.

Niu J

Nuku’alofa: 14 December 2021 J U D G E