R v Vea [2021] TOSC 4; CR 251 of 2020 (25 January 2021)

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

CR 251 of 2020

BETWEEN: R E X

- Prosecution

AND: TEVITA VAEA VEA

- Accused

SENTENCE REMARKS

BEFORE : JUSTICE LANGI

Counsel : Ms Lute Fakatou for the Crown Prosecution
The Accused In Person

Date of Sentence : 25 January 2021

1. INTRODUCTION
   

1. On 06 October 2020 the defendant was arraigned and pleaded guilty to one count of serious indecent assault contrary to section 124 (1) and (3) of the Criminal Offences Act.
2. He appears before me today for sentencing.
   
   2. THE OFFENDING
      
3. The victim is ‘Akanesi Katoa, 13 years old and reside in Tofoa;
4. The victim is known to the defendant because her father and the defendant’s mother were in a de facto relationship at the time of the offending.
5. On the day of the offending, the victim was at the defendant’s house with her siblings where they would usually visit and stay for a few days.
6. At around 5am on the morning of the offending the victim woke when she felt someone fondling her breasts. She looked up and saw that it was the defendant. She was afraid to move and let the defendant fondle her breasts. While he was fondling her breasts the church bell rang for morning service and the defendant stopped touching her and walked away.
7. The victim then reported the matter to the defendant’s mother. She also told her maternal aunt what the defendant had done to her. The matter was referred to the police and the defendant was arrested and charged.
   
   100. THE CROWN’S SUBMISSIONS ON APPROPRIATE SENTENCE
8. The Crown identified the following as aggravating factors in this case:
   1. The defendant was in a position of trust and he grossly breached it;
   2. The age disparity between the defendant and the victim;
   100. The seriousness of the offending – the fondling of a young girl’s breast in the comfort of her home and in the early hours of the morning; and
   4. The offending was premeditated as reflective in the time the defendant chose to commit the sexual indecency on the young victim;
      
9. The following were identified as mitigating factors:
   1. The defendant has no previous convictions;
   2. The defendant pleaded guilty at the earliest available opportunity;
      
10. The Crown submits the following comparable cases to assist me in determining an appropriate sentence:
    
11. In R v P.F (Unreported, Supreme Court, CR 212 of 2019, 5 June 2020, Whitten LCJ), the accused was convicted of two counts of serious indecent assaults on his 17-year-old step-daughter. He had inserted his hand inside the victim’s underwear and fondled her vagina and also fondled her breast. The Judge considered that in light of the maximum penalty of 5 years, the comparative seriousness of the offending, the impact on the victim and the Defendant’s lack of remorse, an appropriate starting point for count 1 is two years imprisonment. One year was added to the starting point due to the aggravating features of the case, that is the gross breach of trust between a step father and daughter, the defendant’s relative maturity compared to the victim’s immature age, the repeated nature of his attacks on the victim and the touching of the vagina. The accused was therefore sentenced to 3 years imprisonment for count 1(fondling the vagina) and two years’ imprisonment for count 2 (fondling of the breast)
    
12. In R v Lolohea, the 39-year-old defendant pleaded guilty to a number of sexual offences upon 13-year-old step-daughter which included four counts of rape, sixteen counts of serious indecent assaults and five counts of domestic violence. The 16 counts of serious indecent assault involved sexual acts of handling the accused’s penis, touching of her breasts, licking her vagina and lying on top of the victim. The defendant was sentenced two years imprisonment for the indecent assaults to be served concurrently with the first count of rape where he was sentenced to six years imprisonment. The sentencing Judge discounted three years by way of mitigation because the defendant was a first-time offender, pleaded guilty and had expressed remorse. The final 18 months of the sentence was suspended on conditions.
    
13. Rex v Siale Tu’i (Unreported, Supreme Court, CR 106 of 2020, 21 July 2020, Justice Niu) – The Accused was 66 years old, pleaded guilty to one count of serious indecent assault and one count of unlawful imprisonment. The victim was 15 years old and had gone to the Accused’s house thinking that he required assistance after he had yelled out to her. The Accused lured the victim into his bedroom where he pushed her onto the bed and lifted her shirt and sucked her breast. Justice Niu adopted a starting point of 2 years imprisonment. In light of the mitigating factors of pleading guilty, having no previous convictions and cooperation with the police the last six months of the sentence was suspended on conditions.
    
14. Rex v Uikelotu Afeaki (Unreported, Supreme Court, CR 208 of 2019, 7 February 2020, Whitten LCJ) – The Accused was 15 years old at the time of the offending. He was charged with two counts of serious indecent assault, namely groping the victim’s buttocks and breasts over her clothes. The Victims was 51 years old and she was a New Zealand volunteer working in Tonga. She had gone for a run in the morning when she was attacked. The Accused pleaded guilty on arraignment. The sentencing judge took into account the Accused was a young offender, had no previous convictions, had cooperated with the police and was genuinely remorseful and had entered a guilty plea at an early stage. The offending was considered to be at the lower end of the spectrum and so a starting point of 18 months imprisonment was relevant. The starting point was discounted by one third (six months) for the Accused’s cooperation with the Police and his early guilty plea. This left a balance of 12 months imprisonment, fully suspended on conditions.
    
15. The Crown submits that it is appropriate in this case to impose a custodial sentence taking into consideration the gravity of the offending on a young 13-year-old girl and according to the comparable sentences referred to, the circumstances in this case warrant a custodial sentence.
    
16. The Crown submits that the circumstances in this case are to an extent similar to that of Tu’i with the only distinction being the vast disparity of the age between the Accused and the victim in that case. They also submit that there are also some similarities with the case of Afeaki where the offending is at the lower end of the spectrum for indecent assault cases.
    
17. The Crown submits that in light of the aggravating and mitigating factors, an appropriate starting point is 2 years imprisonment to be partially suspended in light of the principles set out by the Court of Appeal in Mo’unga v R [1998] Tonga LR 154.
    
    4. VICTIM IMPACT REPORT
18. A victim impact report was filed by the Crown after interviewing the victim on 1 December 2020.
    
19. The victim is now 14 years old and at the time of the interview she was living with her maternal aunt, Suliana Hefa, at Lapaha. The victim is the third of four children born Tevita Katoa and Fonopulu Katoa.
    
20. The victim’s mother passed away in 2016 and her father re-married in 2018 to Emma Katoa. However, her father also had another de-facto relationship with a woman by the name of ‘Ofa Vea who lived only a few blocks from where they lived.
    
21. The victim told the report writer that she and her siblings frequently lived at ‘Ofa Vea’s house between the years 2016 to 2020.
    
22. The victim is now in Form 2 at the Takuilau College.
    
23. The victim told the report writer that after the incident occurred, she was very angry and disappointed with her father for not doing anything about what had happened. She said that her father had asked her not to tell anyone about what had happened. However, she had managed to escape and ended up with her aunt.
    
24. The victim also stated that the defendant had approached her and apologized and asked for forgiveness. However, she had not forgiven him and told the report writer that she thinks she should forgive him out of respect to his mother who had helped her a lot when she was still living with them.
    
25. She also stated that what happened to her has caused a rift in her relationship with her father but that she still loves him but can no longer continue to live with him at ‘Ofa Vea’s residence.
    
26. The victims’ guardian, Suliana Hefa, told the report writer that during the first few days of the victim living with them, she had noticed that she was withdrawn and may still have been in shock over the incident. However, she stated that the victim has now recovered and is happy and more comfortable to do things and to speak her mind. Suliana also stated that the incident had affected the victim’s studies, in that her grades dropped and exam results were unsatisfactory. However, that is no longer the case now and with the loving environment and support she now receives the victim seems to be doing well.
    
    5. PRE-SENTENCE REPORT
       
27. The Defendant is the third of five children. His parents have divorced and he still lives with his mother and three of his siblings.
    
28. The victim is known to the defendant because at the time of the offending his mother was living in a de facto relationship with the victim’s father.
    
29. The defendant’s mother told the probation officer that the defendant had grown up witnessing domestic violence and abuse. The defendant’s father had been a violent man and had been imprisoned for his numerous violent behaviour which had eventually caused the break down in the marriage.
    
30. In terms of education, the defendant reached Form 5 level at Tupou College. He did not pass the Form 5 exams and did not pursue any further studies He is currently employed as a Customs Broker with Simply the Best company owned by Malakai ‘Ahokava. He earns a weekly income of $200 from his job. He told the probation officer that his work contributes significantly to providing for the needs of his family.
    
31. The defendant also told the probation officer that he had known the victim for about three years and she and some of her siblings used to live at their house. They would sleep in the living room and when he returned at night and saw the victim sleeping he would become sexually aroused and wanted to have sex with her.
32. The defendant also stated that on the night of the offending he had been drinking alcohol and when he returned home and saw the victim sleeping he felt ‘horny’ and wanted to have sex with the victim. However, the victim was sleeping with her siblings and some of the defendant’s own siblings.
    
33. He told the officer that he is now remorseful over what he had done and will accept any punishment that is given to him.
    
34. The probation officer asks the court to take into consideration the fact that the defendant was exposed to violence at home and this could be a contributing factor to his actions. He recommends a partly suspended sentence with conditions.
    
    6. DEFENCE SUBMISSIONS ON SENTENCE
35. Counsel for the defendant concedes that the offence of serious indecent assault is a serious offence and a term of imprisonment is inevitable. However, counsel submits that the mitigating factors in this case supports a fully suspended sentence. Those mitigating factors are as follows:
    1. The defendant is a first-time offender;
    2. The defendant pleaded guilty at the first available opportunity;
    100. The defendant is a young offender who is now 22 years old but was 21 years at the time of the offending;
    4. The defendant was cooperative and is remorseful over what he did;
    5. The defendant and his family has apologized to the victim;
       
36. Counsel for the defendant also submitted the following social factors to be taken into consideration as mitigating factors:
    1. The defendant grew up in an unstable family where his father abused his mother;
    2. The defendant’s father served time in prison for abusing the defendant’s mother. They eventually divorced in 2017;
    100. The defendant left school in 2017 and in 2018 and is currently employed as a Custom Broker to help his mother and siblings.
         
37. Counsel for the defendant also submitted that in light of sentencing bands the appropriate starting point in this case is 1.5 years of imprisonment.
    
    7. STARTING POINT
38. The maximum penalty for serious indecent assault contrary to section 124 (1), (2) and (3) of the Criminal Offences Act is a term of imprisonment not exceeding 5 years.
    
39. In addition to the comparable sentences submitted by the Crown, I also consider the following cases relevant in cases of serious indecent assault involving the touching of the breasts and vagina:
    1. In R v Soafa (unreported, Supreme Court, CR 5 of 2016, 23 May 2016), an 18-year-old male pleaded guilty to one count of rape and one count of serious indecent assault and one count of housebreaking. The victim in that case was a 24-year-old Japanese national volunteer. She was attacked and forced to the floor, punched in the face and pushed onto a sofa. The accused strangled her to stop her from screaming. She was forced to the ground, had her pants and underwear pulled down and the accused tried to insert his penis into her into her vagina. The victim managed to push him away. He was later arrested and admitted to the offending. He was a first-time offender and came from a broken family. He showed remorse and tried to apologize to the victim but she did not accept his apology. On the count of serious indecent assault, for touching the victim’s vagina without her consent, the defendant was sentenced to 18 months imprisonment to be served concurrently with his sentence for attempted rape of four years with the last 12 months suspended on conditions.
    2. In R v Lolohea, the 39-year-old defendant pleaded guilty to a number of sexual offences upon 13-year-old step-daughter which included four counts of rape, sixteen counts of serious indecent assaults and five counts of domestic violence. The 16 counts of serious indecent assault involved sexual acts of handling the accused’s penis, touching of her breasts, licking her vagina and lying on top of the victim. The defendant was sentenced two years imprisonment for the indecent assaults to be served concurrently with the first count of rape where he was sentenced to six years imprisonment. The sentencing Judge discounted three years by way of mitigation because the defendant was a first-time offender, pleaded guilty and had expressed remorse. The final 18 months of the sentence was suspended on conditions.
       
40. In Tonga sentences for serious indecent assault range from 12 months to 4 years. The gravity of the offence will determine the starting point for the sentence. From the comparable sentences discussed, there seems to be a general consensus in our courts for a starting point ranging from 12 months to 2 years for serious indecent assaults involving the touching of the breasts and vagina (R v P.F; R v Soafa; R v Lolohea; R v Afeaki).
    
41. The comparable cases referred to above involved serious aggravating factors such as breach of trust, the age disparity between the defendants and the victims, the use of threats of violence and the presence of premeditation. The acts of indecency in those cases are in my view much more serious than the present case. Although fondling the victims’ breasts in this case is still a very serious offence, I believe that the circumstances are not as serious as the acts of indecency in the above cases.
    
42. However, similar aggravating features are present in this case, namely, the presence of premeditation and breach of trust and the age disparity between them. There was no use of violence or threats on the victim. The offending in this case only involved the touching of the breasts and not the vagina as in R v PF and the defendant in this case is charged with only one incident of serious indecent assault. I therefore believe an appropriate starting point for fondling of the breast is 12 months imprisonment.
    
43. For the breach of trust in assaulting someone who viewed him as an older brother, and the age disparity, I add another twelve months to the starting point making a total of 2 years imprisonment.
    
44. For his early guilty plea, showing remorse, having no previous convictions and cooperation with the police I deduct 9 months from the starting point. That leaves a total of 15 months imprisonment.
    
    8. SUSPENSION
45. I now turn to whether the circumstances in this case warrant a suspension of part or the whole of the overall sentence. As was noted by the Lord Chief Justice Whitten in the case of Rv Afeaki [2020] TOSC 43; CR 208 of 2019 (7 February 2020], although section 24(3) of the Criminal Offences Act gives the Court jurisdiction to suspend the whole or part of the sentence for any period of up to three years, it is silent on the criteria to be considered in deciding whether a sentence should be suspended. However, the court in that case used the guidelines taken from the case of Mo’unga v R [1998] Tonga LR 154 where the Court of Appeal approved the approach of Eichelbaum CJ in R v Petersen [1994] 2 NZLR 533 (CA) when considering the issue of suspension. These considerations were summarized by LCJ Whitten as follows:
    1. A suspended sentence is intended to have a strong deterrent effect;
    2. If the offender is incapable of responding to a deterrent, it should not be imposed;
    100. The circumstances in which a suspension of sentence may be appropriate include:
         1. Where the offender is young, has a previous good record or has a long period of free of criminal activity;
         2. Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself;
         3. Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender; and
         4. Where there has been co-operation with the authorities.
            
46. In this case the defendant is relatively young being only 21 years old at the time of the offending, and he has a previous good record. He is remorseful for his actions and had cooperated with the police and entered a guilty plea at the earliest available opportunity. Despite the gravity of the offending, I believe that he is still a good candidate for rehabilitation if he is given the opportunity to do so with a suspended sentence.
    
47. I also take into account that the nature of the offending was only fleeting, unlike the offences in the cases referred to above where the assaults involved some sort of violence or threats, were premeditated and the length of the assaults were for longer periods of time (P.F; Soafa; Lolohea). I also respectfully disagree with the Crown that the circumstances of this case are similar to that in Tu’i. The Accused in Tu’i had sucked the victims’ breasts and the age disparity was more significant.
    
48. I also take into consideration that the defendant has had an unfortunate upbringing in that he grew up in an environment where domestic violence was a frequent occurrence. It is possible that this may have had some influence in his disrespect for women upon seeing his own father constantly beat up on his mother. However, with the right tools offered by rehabilitation courses, there is still hope for the defendant to turn his life around. Rather then send him to prison where he would live amongst some of our worst hardened criminals and become a hardened criminal himself, I am prepared to offer the defendant a lifeline to turn him away from a life of crime and become a law-abiding citizen.
    
49. For these reasons I convict the defendant for the charge of serious indecent assault and sentence him to 15 months imprisonment. I order that the sentence is fully suspended for two years on the following conditions
    1. The defendant is not to commit any further crimes punishable by imprisonment during the period of suspension;
    2. He is placed on probation for the period of his suspension;
    100. He is to undertake and complete the Salvation Army Drug and Alcohol Awareness Program;
    4. He is to undertake 100 hours of community service and to report to the probation office within 48 hours;
       
50. Finally, as requested by the Crown and pursuant to section 119 of the Criminal Offences Act, I direct that the identity of the complainant and her evidence taken in the proceedings shall not be published in the Kingdom in a written publication to the public or be broadcast in the Kingdom.

‘E. M. L Langi
NUKU’ALOFA: 25 January 2021 J U D G E