R v Latu [2022] TOSC 14; CR 192 of 2021 (5 April 2022)

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

CR 192 of 2021

REX

-v-
Nasio LATU

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Mr. J. Lutui, DPP for the Prosecution
Defendant in person
Date of Sentencing: 5 April 2022

1. Order under section 119; non publication; no detail may be reported that leads to the identification of the victim in this case.
2. The complainant, Miss Akanesi aka Agnes Tongia is 11 years old and was 10 years old at the time of this allegation.
3. Before the trial started, in the absence of the defendant, Akanesi/Agnes came into court for the Judge to introduce himself, the prosecutor and explain how the trial would be conducted; specifically the roles of Judge and Counsel, that the defendant was not represented so the Judge would ask questions on his behalf. That this process would need a patient approach as there was a need to translate for the Judge and defendant and the defendant had hearing difficulties.
4. Akanesi is her Tongan name, but her preferred manner of address is Agnes.
5. She had a red card to hold up when she needed a break and was happy and confident with that arrangement.
6. She was reassured about asking for water if she needed and shown the screen that would be in place to shield her view of the defendant.
7. With her age in mind and having gone through the introduction it was clear that she was well able to understand the significance and importance of the oath and so would give her evidence on oath.
8. After this was gone through and Agnes comfortable with the explanations she went to wait in a private room and Mr. Latu came into court.
9. Mr. Latu is 80 years old and needs assistance to ensure he could hear clearly.
10. He is unrepresented.
11. The trial process was explained to him; that I, the Judge, would cross-examine on his behalf and it would be checked with him that he felt his case had been fully put.
12. At a preliminary hearing a document, equivalent to a proof of evidence, had been taken down by myself, the trial Judge.
13. He was told that after the complainant had been cross examined on his behalf the witness would be asked to withdraw and he would be given the opportunity to ensure that any further questions that were needed could be put.
14. The evidence would be translated from the English into Tongan for him.
15. The prosecutor and the interpreter would be positioned close to him so he could hear clearly.
16. He could and should ask for a break when it was needed.
17. All this gone through and Mr. Latu clear as to the procedure, the trial was ready to start.
18. The case was formally called on.
19. Following the standard United Kingdom Crown Court direction to juries^[1] when a witness gives evidence from behind a screen, Mr. Latu was reassured that the complainant, albeit screened from him, did not mean that her evidence was being received any differently to any other witness and no adverse inference was to be drawn on account of this arrangement.
20. The case was opened in Tongan and the Court followed the opening simultaneously translated into English.

Agnes Tongia

21. She is 11 years old now. Her birthday is 15^th December 2010 and she produced a copy of her passport, which became exhibit 1.
22. On 30^th July 2021, when she was still only 10 years old, she had gone into Nuku’alofa that afternoon, by car, with her sister.
23. They had parked opposite the Naratham store. She was sat in the front passenger seat eating a burger while her sister went into the shop looking for some clothes to buy.
24. Agnes noticed Mr. Latu. He was sat on a chair and she saw that he was begging for money.
25. The window to the door next to her was fully down.
26. Mr.Latu approached the car and asked her coins. She said that she did not have any.
27. He went back to his seat and continued to beg. Then he approached her in the car again and asked for coins. She said she was sorry, she did not have any.
28. He returned to his place, but returned a third time, placed his hands on the window and asked her where her mother was.
29. She explained her sister had gone into the store and Agnes demonstrated how Mr. Latu had nodded at her answer.
30. He sat down, but came back, rubbed her shoulder for about 5 seconds and asked her if she was alright? She said she was.
31. He sat down, then returned.
32. He reached across and rubbed her breast and asked her if her breast was alright?
33. Agnes said she then felt uncomfortable and started to cry.
34. He asked her if she was crying because he had touched her, she said she lied and told him she was crying because she felt sorry for him.
35. He returned to his chair but went to her, gave her two dollars and told her to get herself a drink or a snack.
36. She didn’t want the money or the offer.
37. She was by then in tears, scared and nervous; waiting for her sister’s return.
38. He said to her “ha taha” – she understood that wanted her not to tell anyone.
39. He sat down. She was still sobbing, when just a moment later her sister came back to the car.
40. Her sister Ashmeeta, is known as Ashley.
41. She told her everything. Ashley asked where the two dollars had come from, she knew her younger sister had no money?
42. Mr. Latu had returned to his seat. By using the court room she demonstrated it had been about 10 feet away from her.
43. Ashley took the money and threw it in his face.
44. He replied “Faka‘ofa au ia” (I am just a poor old man).
45. She was still crying and her sister decided to alert the authorities.
46. A vehicle next to theirs had some soldiers in but they proved unhelpful.
47. Ashley then called the police.

Cross-examination

48. The window was all the way down.
49. She had not felt scared at the sight of Mr. Latu when she first clapped eyes on him.
50. He had indeed asked her where her mother was; she had said it was her sister she was waiting for in the store. He had not mentioned food when he asked for coins.
51. Her impression was he could hear her speaking clearly enough.
52. She agreed that he had drawn closer when in conversation with her and again demonstrated his drawing a little nearer and nodding in response to an answer she had given him.
53. She had not been mistaken about the touching of her breast, it was not his trying to get her attention with an innocent tapping of her body.
54. Agnes then held up her card to show she needed a break.
55. She took a break and the opportunity was taken to clarify what Mr. Latu what else he wanted put by way of cross-examination.
56. The remaining questions were put on her return.
57. She was not mistaken about being given $2, it was a $2 note. Nor was she mistaken that he had said to her “How is your breast?”.

Re-examination

58. There was none.

Ashmeeta Tongia

59. She described going into town to do some shopping that day with her younger sister in the front passenger seat, who had been eating a burger and that was why she stayed in the car as opposed to go with her sister into the shop when they parked in front of Naratham’s store.
60. When she returned from the shops after only five minutes or so, she found Agnes crying. She asked her what the matter was?
61. Her sister told her a man had touched her huhu (breast).
62. Ashley said she immediately knew her sister was not lying. She was scared that her sister had been touched and that person then left.
63. Agnes identified the culprit; the homeless man in front of their car.
64. Agnes said he had touched her huhu having asked her where her mother was.
65. Ashley described her realisation as “joining the dots”; the man had discovered that Agnes had been left alone and had taken the opportunity to indecently assault her.
66. She noticed the two dollars and, on her own word, “lost control”. She started screaming at the man:
67. Ko e ha ho me’a na’e fai ki he‘eku sister?
68. What did you do to my sister?
69. He was mumbling and she struggled to make sense of his reply; Fakamolemole – apologise, I am sorry.
70. She threw the note at him. Told him not to touch her sister and try to shut her up with money.
71. ‘Alu moho $2 ‘ikai ke mau fiema’u ho $2 (go with your $2 we don't want it).
72. She turned to the soldiers in the next vehicle, but they were little use :
73. Said that the old man had indecently assaulted her little sister. Na’e ha’u e vaivai ‘o alakovi ki he ‘eku sister.
74. Soldier said : leave it alone he is an old man; Tukunoai pe e koe he koe vaivai.
75. She turned to the old man in her fury and said Fakalongolongo ho ngutu (shut your mouth).
76. She called the police and that took some doing as they did not answer at first then needed a second call before an officer arrived.

Cross-examination

77. She had not seen her sister being touched.
78. The old man did not try to leave the scene, on the other hand it was not as if he could run away, his being somewhat infirm and needing a walking stick to move about.
79. She believed her sister, in fact she believed her before she had even heard the old man’s side of the story.

Re-examination

80. None
81. It was an agreed fact that Mr. Latu was of good character; having no convictions recorded against him.

Close Crown’s case

Defence case

Mr. Latu

82. On the day in question he had been sat outside the store. He had seen the car park up and the girl inside. He had approached her, tapped her on the shoulder and asked where her mother was, she had replied in the store.
83. He asked her to ask her mother for coins for food for him and the little girl had agreed to.
84. He stated that he sat down but returned to the little girl and asked her where her mother was and this time tapped her on the shoulder.
85. He repeated his plea that her mother was to give him some coins.
86. He then sat down again, noticed the girl was crying and told her to stop or her mother would think it was he who had done something to her. He sat down again.
87. He at no time gave the little girl any money.

Cross-examination

88. He denied he touched her breast, he had just touched her on her left side, but said he was not sure if that touching had been with her breast.
89. He had been asking for coins.
90. When he saw her crying he approached the car.
91. He denied that he had approached and touched her breast. He had only touched her shoulder. Any contact with her breast would have been an accident. He was only touching her shoulder to get her attention to ask for change.
92. He could not explain how a touching of her shoulder could lead his hand to slip and touch her breast.
93. He denied he had given the girl $2 to shut her up.
94. He then stated that he had never been in trouble and would not do this to a young girl.
95. He also said he did not understand how it could be a crime to touch a girl on her shoulder.

Re-examination

96. None

Close of defence case

Submissions

97. The Crown made these points:
98. Mr. Latu could not properly explain how a touching of Agnes shoulder as she sat in the car could lead to accidental touching of her breast.
99. There was no reason for Agnes to make this up.
100. She had complained immediately to her sister.
101. To note the demeanour when her sister returned; she was distressed.
102. The money her sister found, the $2 note, which was outright denied by the defendant but that denial had to be untrue.
103. Sister had immediately sought help both from the soldiers in the next vehicle and, when that had not helped, the police.
104. Mr. Latu raised these arguments :
105. The little girl was simply wrong, it was just an accident if it had happened at all.
106. He had not said the words “How is your breast?”. He had not given her any money; and why would he when he was in such need himself that he was begging.
107. He had never been in trouble before and would not start now.
108. He simply would never do such a thing to a young girl.

Consideration

109. The defendant is innocent until proved guilty.
110. The burden is on the prosecution and they must prove their case beyond a reasonable doubt.
111. The allegation is that he committed an offence contrary to section 125 Criminal offences Act, in that on 30^th July 2021 he touched Agnes’ breast.
112. The elements to be proved are :
     1. The defendant;
     2. On the day in question;
     3. Touched Agnes;
     4. That touching was indecent, and
     5. Agnes was a child under 12 years old at the time.
113. Having considered carefully the elements to be proved and the competing arguments, it is implicitly accepted in Mr. Latu’s evidence, when he stated that he would not touch her as alleged, and that he would never do this to a young girl, that such touching would be indecent.
114. In any event, it is simply common sense and must be the view of any right thinking person, that the touching on the breast of a 10 year old girl in these circumstances is an indecent act.
115. Thus, a proper analysis of this case reveals that the only issue for me to resolve is a factual one; there being no challenge as to: the age of the complainant, the day in question; nor, as I have found, that such touching was, if proved, indecent. Therefore, the question for me is whether I believe the evidence of Agnes, so that I am sure, what she alleges took place?
116. I remind myself that not every aspect of the evidence needs to be resolved, only so much as to allow me to answer the question whether the prosecution have proved their case to the required standard.^[2]
117. Further, I remind myself that the defendant’s good character supports his case in two ways, firstly it supports him as being a truthful person, it also supports him as to propensity, it may mean he is less likely to do what is alleged^[3].
118. Turning to my assessment of the evidence.
119. Agnes was clear in her evidence. She impressed me as honest. Also, as someone who was genuinely upset and frightened by what had happened.
120. She described her consequential feelings in a realistic way.
121. She had no reason to lie and she was sound in her rebuttal of the defence case.
122. There was no room for doubt in what she said.
123. The evidence of what she had told her sister, Ashley, amounted to recent complaint and I remind myself that while this is not corroborating evidence, it is evidence of consistency.
124. Her demeanour, while not specifically corroborating evidence in this case, is also evidence that demonstrates a consistency in what she alleged happened.
125. It plainly made a forceful impression on her sister, because she “lost control” in becoming angry and confronting Mr. Latu, then contacted the first person around her she considered in a position of authority, the soldier in the next vehicle, then the police for help.
126. Both Agnes and her sister were quite clear about the existence of the $2 note. This is not a detail that had been made up, in my estimation.
127. It is a piece of evidence that cannot be explained adequately on the defence case.
128. I find, so that I am sure, there was a $2 note in the car when Ashley returned and found Agnes crying. That this note was given to Agnes by Mr. Latu and that, for whatever reason, Mr. Latu had not told the truth about giving this note to the complainant.
129. Turning to the defence case. There are two critical pieces of evidence that have not been resolved on his case.
130. Firstly, how his hand could have moved from touching the shoulder to touching the breast of Agnes as she sat in the car.
131. Secondly, why Mr. Latu on his case, told the complainant not to cry lest her mother thought he had caused her to be in tears.
132. The first point is a piece of evidence that tends to undermine the defendant’s account because it is unlikely, even taking account of his frailties, nor could he sensibly explain it.
133. The latter suggests that he realised her tears would be associated with what he had done and had searched for, yet failed to find, a logical and believable explanation for her crying. He met the truth of the situation only half way in an unbelievable compromise.
134. So what he came up with was an answer, that in terms of the case he faced, fell between two stools.
135. That break-down in the logic of his explanation reflects a failing in his credibility.
136. I consider that the existence of the $2 note and my finding that Mr. Latu had given it to Agnes, does not of itself prove he is lying about the central issue.
137. There could have been a reason consistent with an innocent explanation why he had given it to her.
138. It is possible that his giving the money was to console someone crying and then, in the circumstances, he lied about it for fear of it being misconstrued.
139. Therefore, I do not take this piece of evidence as a starting point for my considerations.
140. I turn, instead, to the clear evidence of Agnes and her sister; that they have no reason to lie and the other evidence. I note the evidence that supports consistency.
141. I then take note of the two points, above, that tend to damage the logic of the defence case.
142. Which then, in turn, drives me to conclude the money was, indeed, an attempt to shut up Agnes from talking about what Mr. Latu had done to her. It being intrinsically unlikely that he would part with money, when he was begging, unless there was a particular motive for his doing so.
143. I therefore also find that when confronted by Ashley, Mr. Latu did say, “Fakamolemole.”
144. That means , in the circumstances of what Ashley had just said to him; Ko e ha ho me’a na’e fai ki he‘eku sister? (what have you done to my sister?) his answer was significant.
145. Section 20 of Evidence Act provides : “A confession is an admission made at any time by a person accused of an offence stating or suggesting that he committed the offence.”
146. Drawing all these threads together, I find, so I am sure, that Mr. Latu did indeed touch Agnes breast that afternoon 30^th July 2021.
147. He tried to shut Agnes up by giving her $2.That, when confronted by Ashley, he apologised.
148. I therefore find Mr. Latu guilty of the single count of indecent assault on a child under the age of 12 years of age.

Sentence

Victim Impact report

149. Agnes was 10 years old at the time. She was considerably distressed with episodes of crying and distracted by what had happened to her.
150. There were episodes so stressful she almost fainted when she was at school and her class mates wanted to know what had happened to her.
151. Her mother reported that she noticed the episodes of grief and explained that through support and the family rallying around her she has been able to move on.
152. Many of her class mates found out because the tail-end of the event was filmed and posted on social media. This was of her sister confronting Mr. Latu.
153. The posting on social media led to more pressure as it appeared that her sister was in the wrong as the clip was taken out of context.
154. When I review the sentences that have not only been passed recently, but approved latterly, I consider cases such as :
     1. Anitelu Fielau Maea (unreported, Supreme Court, CR 185 of 2019, 2 December 2020, Cato J) digital penetration vagina of 11 year old, sentence 1 year 9 months.
     2. Polikapi Motuliki (unreported, Supreme Court, CR 55 of 2019, 13 January 2019, Paulsen LCJ) licking vagina of 5 year old by 56 year old, a starting point of 2 years; reduced for various reasons of mitigation to 16 months and the last 8 months suspended for 2 years on conditions.
     3. Tevita ‘Ilangana (unreported, Supreme Court, CR 56 of 2015, 12 August 2015, Cato J) 19 year old rubbing his penis on the body of a 7 ear old, then massaging her buttocks and vagina; a starting point of 2 year’s imprisonment.
155. All mentioned with approval in R v Vi 234/2020 by LCJ Whitten QC, and provides a helpful over-view of the tariffs passed for offences contrary to section 125 Criminal Offences Act.
156. They are to be distinguished from the present case as they were each far more serious; they involved more sustained assaults; the touching of directly onto the skin of the victim almost always more serious than over clothing.
157. They were graver in nature too.
158. Apart from this I have helpfully also been directed to Rex v Sione Nginingini (Unreported, Supreme Court, CR 02 of 2018) a sentence of 12 months fully suspended for an offence of serious indecent assault where the defendant kissed and touched the breast of a 12 year old.
159. Also, Rex v Tu'imotuliki (Unreported, CR 169/2019), where a 77 year old man sucked the 15 year old victim’s breast. He pleaded guilty and it was accepted that he was bedridden and infirm. He was sentenced to be of good behaviour for 12 months.
160. Here the offending was in public and the victim was made to endure this touching of her in public so both at once trapped and utterly exposed. It could only have been humiliating as well as unpleasant.
161. I also firmly believe there has to be a sentence passed which is a deterrent. It cannot be right for old men to pray on children and use them sexually.
162. The conclusion I reach is that the offence is so serious only prison sentence is appropriate, there should be a starting point of 6 month’s imprisonment.
163. In considering that there was a trial and that Mr. Latu is not really repentant I cannot reduce that starting point.
164. The most significant points in mitigation are his age and also that he has never offended before.

Suspension

165. In consider this I apply the Mo’unga principles. Though plainly not a young man, Mr. Latu had not been in trouble all his life. His advanced age I also take into account.
166. I will suspend his sentence for 2 years.
167. Total; 6 month’s imprisonment, suspended for 2 years.
     

NUKU’ALOFA N. J. Cooper

5 April 2022 J U D G E

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^[1] https://www.judiciary.uk/publications/crown-court-compendium-published/
3.34-3.35 Compendium Part 1
^[2] As per Crown Court Compendium, Part 1. Page 101; chapter 4-1 at point 2. https://www.judiciary.uk/publications/crown-court-compendium-published/
^[3] Crown Court Compendium, Ibid. 11.3 – 11.4