R v Quensell [2021] TOSC 52; CR 50 of 2021 (22 April 2021)

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

CR 50 of 2021

R E X
-v-
VIENNA TINCAN MAIL QUENSELL

SENTENCING REMARKS

BEFORE: JUSTICE COOPER

Counsel: Ms. T. Kafa for the Crown

Ms. L. Tonga for the defendant

Date of sentence: 22^nd April 2021

1. An order prohibiting any publication of any details that could identify the victim in this case is made under s.119.
   
2. This case concerns a series of rapes committed by this defendant against his 13 year old grand daughter. The defendant pleaded to an indictment that consisted of 1 count of rape on or about August 2019 carrying on through to June 2020, the latter seven offences were indicted as carnal knowledge of a young person. But, it matters not as to that distinction because the victim was of an age whereby she could not consent in any event so I treat the latter offences as having been rapes for all intent and purposes.
   

The offences

3. On a date on or about August 2019 the defendant and his wife was living with his daughter and her family, including her children; those being the victim and her 9 year old brother.
   

First offence

4. One evening that August the defendant invited the victim to go shopping with him. She was excited at this. When her brother wanted to come he angrily forbade it.
   
5. He took her to a cemetery in Fanga, undressed her and raped her and ejaculated inside her, later telling her to wash her vagina and not to tell anyone.
   
6. This was the first time he raped her and was her first sexual experience of any kind.
   

Second offence

7. The next offence was as the first; a few weeks later, the ruse to take her shopping again employed. He drove her to Hofoa raped her and licked her vagina. He ejaculated inside her and then, after he had finished, gave her $10.

Third offence

8. About a month later he again told her she would be taken shopping. He drove her to a tax allotment in Mataki’eua. He undressed her, made her massage his penis. He put saliva on her vagina and then raped her and ejaculated inside her.
   
9. On their return home she was told not to tell anyone, to wash and was given $5.
   
10. She was scared and so she did not say anything.
    

Fourth offence

11. This offence occurred in about January 2020. The victim was showering and the defendant ordered her to turn off the water. She spoke out and told him no. But he undressed and raped her stopping because he was scared off by the defendant’s wife calling out that she was to stop in the shower. He ran away. The victim left to clean herself.

Fifth offence

12. The sleeping arrangements were that the whole family slept in the living room. One night around April 2020 as the others all slept, the defendant undressed the victim, licked her vagina, raped her and ejaculated inside her.
    
13. The defendant’s wife was woken and used a torch to investigate the noise. He pretended to sleep then later instructed the victim to wash.
    

Sixth offence

14. By about May 2020 the victim began sleeping with her brother to try and avoid being preyed upon by the defendant.
    
15. But he carried on regardless. This occasion licking her vagina and raping her again. He was caught by his wife and pretended that he was just covering the victim with a blanket.

Seventh offence

16. On or about June that year one night as the others slept he licked her vagina and raped her. A torch light came on as it happened and then the victim’s mother asked the defendant what he was doing?
    
17. She asked her daughter, the victim, but she pretended to sleep and did not reply.
    

Eighth offence

18. This offence took place the following night; he raped her in the living room of her home.
    
19. A short time after this the victim’s mother asked her daughter what had been happening and eventually she was finally able to confide in her mother. This led to the defendant being confronted by his wife and he admitted what had happened.
    
20. The police became involved and he was interviewed and admitted what he had done.
    
21. He pleaded guilty before me on the day of arraignment. A pre-sentence report has been placed before me along with sentencing submissions and a victim impact statement.
    

Previous conviction

22. The pre-sentence report highlighted that Mr. Q was convicted of a like offence in 1990’s and sent to prison. In fact I was provided with the details at court; he was convicted of rape in 1996 and sentenced to 4 years, which was varied on appeal.
    
23. The report states he is at a high risk of reoffending and relates that to this specific victim. It notes he is dangerous.
    
24. He is apparently remorseful.
    
25. The victim impact statement reveals what must be only a fleeting glimpse of the damage he has done to the victim.
    
26. Her mother set out how she was once a good student in the top grade at school but this slipped at this time. How she has become insular, isolated, unable to attend another school because it meant breaking from being with her brother, as they had been at school together.

Sentence

27. Fa’aoso v R [1996] Tonga LR 42 where the Court of Appeal considered that 8 years would be appropriate where there a single rape of a virtual stranger accompanied by significant violence was adjusted down to 6 ½ years because of psychiatric condition the defendant suffered from.
    
28. R v Niutupuivaha CR 77/2016 where Cato J took as 9 years his starting point for three rapes of a 13 year old accompanied by serious indecency.
    
29. I have also considered the United Kingdom’s Sentencing Council guidelines for Sexual Offences, page 9 to 12 rape.
    
30. In terms of those guidelines I consider that these offences would be considered category 2, because of her age and that the victim was particularly vulnerable and it was also sustained offending as it continued for some 10-11 months. Culpability A; because of significant planning, the abuse of trust.
    
31. It is further aggravated by (i) where the offences took place, that is to say at the victim’s home, also the (ii) offending was carried out with a child present (iii) The effect on her family as a whole must also be considered.
    
32. (iv) That he repeatedly ejaculated inside her; a further aggravating feature and the (v) timing of the offence.
    
33. It is further aggravated (vi) in that he has a like previous conviction and (vii) that he compelled her not to report these offences.
    
34. I note that it is said he is remorseful. I question this as he did not plead to the first indictment and has sought to deflect what he did by pleading to amended counts that tend to disguise the fact that what he did amounted to rape.
    
35. I also note that despite bail conditions to stay away from the victim, he repeatedly attended the address. That is not the act of someone who is properly remorseful.

Tarif

36. The head sentence is rape count 1.
    
37. Taking all these matters together the starting point is one of 9 years, I increase that to 12 ½ years to reflect the sustained period of time these offences took place, the severe harm on the victim, the significant planning and abuse of trust. I also take into account those further seven aggravating features I have set out above.
    
38. From that I deduct 30% for his early guilty plea. That is to say I deduct 3 years and 9 months. That gives 8 years and 9 months.
    
39. In arriving at that figure I bear in mind the United Kingdom’s structured approach to reductions in sentence for guilty pleas.
    
40. https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-Sentence-for-Guilty-Plea-definitive-guideline-SC-Web.pdf
    
41. The principles that guide are the stage in the proceedings the indication was given and the circumstances it was given.
    
42. The rationale being that an early indication of guilt :
    
    1. Normally reduces the impact of the crime on the victim.
    2. Saves the victim and witnesses from having to testify.
    100. It is in the public interest and saves money and time.
         
43. The last 6 months I suspend for 2 years on the following conditions :
    
    1. Not to commit any offences punishable by imprisonment
    2. Be placed on probation
    100. Live where directed by his probation officer; and
    4. Attend and satisfactorily complete a course on sexual abuse at the direction of his probation officer.
       
44. The remaining counts I mark each with a sentence of 4 years to be served concurrently.

Total

45. That gives a total sentence of 8 years and 9 months, the last 6 months suspended as above.
    

NUKU’ALOFA N. J. Cooper

22 April 2021 J U D G E