R v Vi [2021] TOSC 91; CR 234 of 2020 (8 June 2021)

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

CR 234 of 2020

REX
-v-
MIKIO VI

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Ms ‘Aholelei for the Prosecution
Defendant in person
Date: 8 June 2021

The charges

1. On 30 October 2020, the Defendant pleaded not guilty to one count of indecent assault on a child under the age of 12 years contrary to s 125 of the Criminal Offences Act and one count of serious enticement of a child contrary to s 116(3) of the said Act. His trial was listed to commence on 3 May 2021 on an estimate of four days.

The trial

2. At the commencement of the trial, Mr Tu'utafaiva who appeared for the Defendant, sought leave to withdraw on the basis that the Defendant had changed his instructions and thereby wished to change his plea to count 2. According to Mr Tu'utafaiva, the change of instructions compromised his ability to responsibly conduct a defence in relation to count 1. The Defendant was rearraigned and changed his plea on count 2 to guilty. Mr Tu'utafaiva was then granted leave to withdraw.
3. The trial in relation to count 1 then commenced. Evidence was received from the complainant, who was 4 years of age at the time of the offending, her brother who was 7 years of age, and their mother. Following that evidence, the accused indicated that he wished to change his plea to count 1. He was then rearraigned and pleaded guilty to that count as well.

The offending

4. On the evening of 2 August 2019, the victim and her family members were at their home in Havelu. The mother had fallen asleep. The victim and her brother went outside to get some water from their tank. The Defendant was hiding behind the tank. He told the brother to go back inside. Once the victim was alone, the Defendant took her away. He initially told her they were going to the shop to buy some candy. She told him she did not want to go. He then picked her up and took her to what the victim described as a "little house" in Nukunuku which was "small and ugly". They did not go to any shop.
5. Once inside the house, the Defendant exposed his penis to the victim. When she was asked where the Defendant put his penis, she pointed to her "private part". The Defendant then ripped the victim's trousers and underpants off while kissing her on the mouth. He then placed his hand on her vagina and inserted his finger. The victim described what the Defendant did to her as being so painful that she fainted.
6. After the victim regained consciousness, the Defendant took her to a church and left her there in the dark. She ran onto the road. Sometime later, her family and friends who were out looking for her found the victim crying. They noticed blood on both her thighs. She was rushed to the hospital where she was examined by Dr Fuka. The medical findings were consistent with the victim being physically and sexually abused and having sustained soft tissue injuries and evidence of vaginal and anal penetration.
7. At approximately 11:20 PM that night, the accused was arrested at his house. Police noticed fresh blood stains on his white bed sheets and on a shirt in his room. The Defendant showed police the location of the victim’s shorts and underpants near a school at Hofoa. However, he did not admit to the offending.

Crown’s submissions

8. The Crown submits the following as aggravating features of the offending:
   • (a) the young age of the complainant at the time of the offending;
   • (b) the offending was an atrocious crime on a child of tender years which resulted in soft tissue injuries from vaginal and anal penetration;
   • (c) the Defendant kissed the victim on the mouth, removed her shorts and tore her underwear, placed his genitalia on hers and put his finger in her vagina causing her great pain;
   • (d) the offending was premeditated;
   • (e) the Defendant was known to the victim and was therefore in a position of trust which he grossly breached;
   • (f) the Defendant abducted the victim at night and removed her from the safety of her home with the intention to commit indecent acts on her;
   • (g) the Defendant preyed on the naïveté and innocence of the victim and her then 7 year old brother and enticed her with sweets;
   • (h) the Defendant did not cooperate with the police;
   • (i) the Defendant defended the charges and thereby required the victim to go through the distress of retelling the indecency he inflicted upon her;
   • (j) the Defendant was reckless and cruel when he took the victim and abandoned her at a church while he returned to his house;
   • (k) the young victim was in considerable fear during the incident;
   • (l) she pleaded for the Defendant to return her to her mother; and
   • (m) after the Defendant performed the indecent acts, she fainted.
9. The only mitigating factors submitted are the Defendant's lack of any previous convictions and his late guilty pleas.
10. The Crown referred to the following comparable sentences:
    • (a) Viliami Simoni (unreported, Supreme Court, CR 137 of 2018, 7 December 2018, Paulsen LCJ) - a 20-year-old defendant pleaded guilty to 9 counts including carnal knowledge of a child and indecent assault on a child. The defendant removed the three-year-old victim from her home, took her to an abandoned house where the indecent acts were performed and which resulted in vaginal penetration and the victim contracting gonorrhoea. For the indecent assault on a child, the defendant was sentenced to 3 years imprisonment to be served concurrently with the head count (carnal knowledge) for which he was sentenced to 11 years imprisonment. For the abduction of the child, which His Honour considered was at the higher end for offending of that type under the circumstances, a sentence of 3 years imprisonment was imposed, to be served cumulatively with the head sentence making an overall starting point of 14 years imprisonment. The sentence was reduced by 3 years in mitigation for the lack of previous convictions and early guilty plea. The final sentence was therefore 11 years imprisonment with the final 12 month being suspended on conditions for a period of 3 years.
    • (b) Peni Halai (unreported, Supreme Court, CR 79 or 2017, 1 February 2019, Cato J) - the defendant was convicted of nine counts including three counts of indecent assault on a child under the age of 12 years. The two complainants were aged 10 and 13. The defendant was sentenced to 4 years imprisonment for inserting his penis in one complainant's mouth, 2 ½ years for licking her vagina and 18 months for fondling the other complainant’s vagina. Both sentences were to be served concurrently with the head count for sodomy of 6 years and 3 months imprisonment. The final 15 months of the overall sentence were suspended on conditions.
    • (c) ‘Anitelu Fielau Maea (unreported, Supreme Court, CR 185 of 2019, 2 December 2020, Cato J) - the defendant was convicted of one count of indecent assault on a child under the age of 12. He was the 11-year-old victim’s stepfather. She was sleeping when he inserted a finger inside her vagina. For that, he was sentenced to 1 year and 9 months imprisonment.
    • (d) Polikapi Motuliki (unreported, Supreme Court, CR 55 of 2019, 13 January 2019, Paulsen LCJ) - the 56-year-old defendant pleaded guilty on arraignment to one count of indecent assault on a child whereby he touched and licked the five-year-old victim's vagina. Having regard to the aggravating features, a lack of premeditation, no suggestion of prior grooming of the victim, no violence beyond the indecent acts, the victim's age, the gross breach of trust, and no touching of the victim with the defendant's genitalia or exposure of his genitalia and that the offending was not protracted, a starting point of 2 years imprisonment was set. For the defendant's full cooperation and early guilty plea, 8 months of the sentence was discounted resulting in a sentence of 16 months. The last 8 months was suspended on conditions for two years.
    • (e) Maikolo Sinoti [2015] TOSC 37 (7 September 2015, Paulsen LCJ) - the 24-year-old defendant was convicted of coercing his related 11-year-old victim to an abandoned bus close to the victim's home where he put his penis on the victim's vagina, kissed her, masturbated, and ejaculated. A starting point of two years imprisonment was set. That was reduced by 6 months for the defendant’s remorse and no relevant previous convictions. The final 6 months of the resulting sentence of 18 months were suspended on conditions for 2 years.
    • (f) Tevita ‘Ilangana (unreported, Supreme Court, CR 56 of 2015, 12 August 2015, Cato J) - the 19-year-old defendant pleaded guilty to 4 counts of indecent assault whereby he removed the pants and underwear of the seven-year-old related victim, sat on her buttocks and rubbed his penis on her buttocks, then made her lie on her back and he rubbed his penis on her vagina and massaged her buttocks and vagina. A starting point of two years imprisonment was set, discounted by 9 months for mitigation resulting in a sentence of 15 months imprisonment. The final 9 months were suspended on conditions.
11. The Crown submits that the offending in this case is abhorrent and that the focus must be on the protection of young children and deterrence of such offending in the future. As Paulsen LCJ said in Simoni at [19]:

"This Court has recognised many times that sexual offending against children is taken particularly seriously and that the Court will respond by imposing appropriate sentences, the object of which is the protection of children from being exposed to those who would prey upon them and to deter future offending, but only by a particular offender but more generally by others who might otherwise be inclined to offend in this way."

12. The Crown submits the following sentence formulation:
    • (a) on the head count, count 1, indecent assault on a child under the age of 12, a starting point of 4 years imprisonment;
    • (b) for the Defendant’s previous clean record and very late guilty plea, a discount of 6 months, resulting in a sentence of 3 ½ years imprisonment for count 1;
    • (c) for the offence of serious enticement of a child, a sentence of 3 years imprisonment;
    • (d) one year of that sentence be cumulative on the head sentence to reflect the gravity of the offending, resulting in an overall sentence of 4 ½ years imprisonment;
    • (e) on account of the Defendant’s relatively young age, his previous good record and the likelihood that he may rehabilitate himself if given the chance; but having regard also to the degree of premeditation, the breach of trust, and the Defendant's lack of cooperation with the authorities, which consequently led the victim to have to give evidence, no more than 12 months of the sentence should be suspended.

Presentence report

13. The Defendant was 21 years of age at the time of the offending. He is the second youngest of nine children. His parents’ marriage has broken down twice, most recently in December 2020. He was educated to Form 3.
14. His mother described the Defendant as a "very kind and social person" and that the offending is "out of character". The Nukunuku town officer reported that the Defendant has a “problem with alcohol" and that there have been issues in the past regarding his drunken unruly behaviour. However, since the offending, the Defendant has no longer been seen to be causing any more trouble.
15. The Defendant married last year. He and his wife have no children of their own but have customarily adopted his sister's four-year-old child. He is employed by a construction company doing carpentry work for which he earns about $240 a week and is the sole breadwinner for his family.
16. In relation to the offending, the Defendant told the probation officer that he was drinking alcohol with friend who is a neighbour of the victim in town before they arrived at his friend's residence at Havelu. They continued drinking outside the victim's residence. The Defendant said he is "well acquainted with the victim and her family" through church activities. He said that he "probably drank excessive amounts of alcohol as he could not remember anything while they were at the victim's place". He said he could only recall “becoming conscious” when he realised that he was with the victim at Nukunuku. That is why, he said, he left the victim beside the road and went back to his home and passed out.
17. The Defendant is reported as feeling remorseful and hopes to effect an apology to the victim and her family but has not been able to do so due to a restraining order against him.
18. The probation officer reported the Defendant as saying that he has quit alcohol since the offending. The officer opines that the Defendant has developed increased maturity since the offending in 2019, and along with his marriage in 2020, has become more responsible for his family and the community. Nevertheless, the offences committed are very serious, especially violating a young child and breaching the trust of a family friend. Although the Defendant was drunk when he committed the offences, he may have a sexual disorder which needs to be addressed to avoid future problems. Since Tonga lacks appropriate rehabilitation services for such a behavioural problem, the Defendant should at least be treated for his alcohol problem. On that basis, the probation officer recommends a partially suspended sentence.

Starting points

19. The maximum statutory penalty for indecent assault on a child under the age of 12 is seven years imprisonment and for serious enticement of a child under 14, five years imprisonment.
20. The offending in this case is most heinous. I can only echo the sentiments expressed by Paulsen LCJ in Simoni and proceed to formulate appropriate sentences to give effect to the main objectives in sentencing for offences of this nature, namely, protection of the community and general and specific deterrence. I would add, however, the natural reaction of all right-minded persons in the community that the sentence must also reflect denunciation and punishment.
21. I do not accept the Defendant’s explanation to the probation officer that he could not remember anything while at the victim’s place or that he only became conscious at Nukunuku when he realised that he was with the victim, for two reasons. Firstly, had the Defendant actually been so intoxicated as to possibly attract a defence under s 21 of the Criminal Offences Act, I have no doubt Mr Tu'utafaiva would have raised it much earlier in the proceeding and before he sought leave to withdraw from acting for the Defendant after the Defendant changed his instructions leading to the incongruous and untenable position of pleading guilty to count 2 but continuing to trial on count 1. It was abundantly clear during the trial that the Defendant had no defence to that count either. Secondly, there is no possibility the Defendant could have done what he did to the victim over a protracted period if he was so intoxicated as to be non compos mentis or to otherwise have been unable to form the requisite intention for his deviant sexual assault.
22. Having regard to the exceptional seriousness of this offending, including the very young age of the victim, the serious breaches of trust, that the offending was premeditated and protracted, the Defendant exposing his genitalia to the victim, kissing her on the mouth and inserting his fingers in her vagina and anus as well as the statutory maximum penalty and the comparable sentences referred to, I set a primary starting point for count 1 of 3 years imprisonment.
23. However, for the violence inflicted and the lasting damage, both physically and psychologically, to this very young, innocent and defenceless girl, whom the Defendant abandoned after he assaulted her, I add another year making a total starting point for count 1 of 4 years imprisonment.
24. In relation to count 2, by reason of the method by, and purpose for, which the Defendant enticed the victim away from the safety of her home at night I set a starting point of 2 ½ years imprisonment.

Mitigation

25. For the Defendant’s previous clean record but his very late guilty plea on count 1, thereby requiring the victim to give evidence and relive this horrendous experience, I reduce the starting point for count 1 by 6 months, resulting in a sentence of 3 ½ years imprisonment.
26. In relation to count 2, for his previous clean record and slightly earlier guilty plea, I reduce that starting point also by 6 months, resulting in a sentence of 2 years imprisonment.

Concurrent vs cumulative

27. Ordinarily, cumulative sentences should only be imposed if the offences are viewed as separate crimes or are unrelated: R v Selupe [2021] TOSC 47 at [22]. The question involves two issues: first, whether the offences were so closely connected that they should be regarded as part of the one course of criminal activity; and secondly, whether in any event, the totality principle requires the sentences to be made, wholly or partially, concurrent: R v 'Asa [2020] TOSC 72.
28. In this case, I regard both counts to be so closely connected that they should be regarded as part of the one course of criminal activity. The purpose of the enticement was the sexual assault. The sexual assault could not have happened without the enticement.
29. For those reasons, I decline to follow the Crown’s submission for a partially cumulative sentence. I have achieved a similar result via a different route by uplifting the starting point on count 1 to reflect the overall culpability for the offending.
30. Accordingly, the sentence on count 2 is to be served concurrently with the sentence on count 1.

Suspension

31. Full or even major suspension of the resulting head sentence is inappropriate for three reasons:
    • (a) Firstly, such an outcome would not serve the important sentencing objective of deterrence.
    • (b) Secondly, for the reasons explained repeatedly in cases such as Rex v PF [2020] TOSC 30, the ‘breadwinner plea’ carries little weight in determining whether a Defendant should be sent to prison.
    • (c) Thirdly, and considering the probation officer’s opinion that the Defendant may have a sexual disorder, to return him to his family at this stage runs the risk of exposing his adopted child and possibly other children in the community to similar harm.
32. However, the considerations for suspension in Mo’unga [1998] Tonga LR 154 at 157 favour partial suspension. The Defendant is young, he has a previous clean record and he eventually pleaded guilty prior to verdict. If his assertion to the probation officer that he has quit alcohol is true, there is some basis for expecting he will take the opportunity offered by suspension of part of his sentence to continue his rehabilitation.
33. Accordingly, I will order that the final 12 months be suspended for a period of 2 years on the conditions set out below.
34. In the result, subject to compliance with those conditions and any remissions granted within prison, the Defendant will be required to serve 2 ½ years in prison.

Result

35. The Defendant is convicted of:
    • (a) indecent assault on a child under the age of 12 years and is sentenced to 3 ½ years imprisonment; and
    • (b) serious enticement of a child and is sentenced to 2 years imprisonment, to be served concurrently with the sentence in (a).
36. The final 12 months of the head sentence of 3 ½ years imprisonment is to be suspended for a period of 2 years from the date of the Defendant’s release from prison on conditions 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; and
    • (d) complete an alcohol and drugs awareness course and a life skills or such other course/s as his probation officer may direct.
37. Failure to comply with any of those conditions will result in the suspension being rescinded, in which case, the Defendant may be required to serve the balance of his sentence.
    

NUKU’ALOFA	M. H. Whitten QC
8 June 2021	LORD CHIEF JUSTICE