R v Uasike [2021] TOSC 88; CR 61 of 2021 (1 June 2021)

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

CR 61 & 63 of 2021

R E X

-v-

Kalolaine UASIKE
Suliasi Napa’a FILIMONE

SENTENCING REMARKS

BEFORE: HON. JUSTICE COOPER
Counsel: Ms. ‘E. Lui for the Prosecution
Both defendants were unrepresented
Date of sentence: 1^st June 2021

1. I make an order under section 119 of Criminal Offences Act, that the identities of neither can be reported because of the harm it would do to their wider families and any young children of those families.
   
2. On 4^th May 2021 both defendants pleaded guilty to two counts of incest.
   
3. The brief facts are that they are cousins.
   
4. On 25^th April 2014 Mr. Filimone was on leave from prison for his birthday. Miss Uasike met him for a drink to celebrate the occasion and they together had sexual intercourse that night.
   
5. The second count relates to their having sexual intercourse in December 2019 after having been out together drinking.
   
6. At all material times they knew that they were cousins.
   
7. In due course they were arrested and charged and admitted their offending to the police.
   

Sentence

8. In considering sentence the difficulty is that there are really no comparable cases.
   
9. The cases of R v Pahulu CR 99/2016; or R v Mailau CR 71/2017 and R v Mailau CR 71/2017 were factually very different in that all were offences by a father against daughter.
   
10. Those cases also marked the abuse of women, young women’s vulnerability in being groomed and against forced sexual assaults.
    
11. Here the relationship is totally different. The offending was consensual and they are older than the defendants in the cited cases and their ages are closer to one another.
    
12. It is right to say that this is a heinous crime and offends Tonga and society at large.
    
13. In this case my attention is rightly drawn to the fact that this occurred over a period of years and that it caused the break up of the marriage of the first defendant; causing his wife terrible upset.
    
14. It has brought humiliation on their wider families as it took place within the community.
    
15. That said, there have been immediate acceptances of their behaviour marked by early guilty pleas. As far as I am aware, on the evidence before me, their relationship has ceased.
    
16. I do not see it is comparable to the case of R v Hoko & Fisi CR 117 & 118 /2020 because there have been no children conceived from their relationship.
    
17. Because of the very different facts in the cited cases I can not accept the submitted starting point of 7 years.
    
18. Any case where it is incest between father and daughter or the relationship is close or the disparity of ages implies grooming or an element of forced sexual activity, then the starting point of 7 years must be correct.
    
19. Given the pleas, lack of convictions or relevant convictions and that this criminal behaviour has stopped my sentence is as follows.
    
20. This offence is so serious only a prison sentence is appropriate. The starting point in a case such as this should be 12 months.
    
21. With the discount for an early guilty plea that is reduced to 8 months.
    
22. That I shall suspend for a period of 2 years.
    
23. Both to complete 60 hours of probation.
    
24. Both to complete a Life Skills course at the direction of their probation officer.
    
25. Any breach to be reserved to myself.
    
26. Not to commit any offence punishable by imprisonment.
    

NUKU’ALOFA N. J. Cooper
1 June 2021 J U D G E