R v Havea [2022] TOSC 30; CR 136 of 2021 (22 April 2022)

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

CR 136/2021

REX

-v-
‘Aisea Pese HAVEA

SENTENCING REMARKS

BEFORE: THE HONOURABLE COOPER J
Counsel: Ms. H. Aleamotu’a for the Prosecution
Mrs.F.Vaihu for the Defendant
Date of Judgment: 14 January 2022
Date of Sentencing: 22 April 2022

An order under section 119 has been made; that no detail may be published that could lead to the identification of the complainant in this case.

1. Mr. ‘Aisea Pese Havea was convicted after a trial of two counts of serious indecent assault with a child under the age of 12.
2. The offences were committed against his step-children in the family home.

The offending

3. On a day in 2019, he was in the bathroom with his 7-year-old step son Tupou and they shared a shower, as was their habit. On that occasion he smacked Tupou and, whilst they were both naked, ordered him to kiss his penis, which Tupou refused to do.
4. The back ground to the discovery of that offence was his wife returning to the bedroom in the middle of the night one day in November 2020 to find the clothing and diaper of her 18-month old daughter in disarray. Her vagina was wet when clearly she had not urinated and as she walked in Mr. Havea had his faced lowered over her body.
5. When Mrs. Havea, fearing the worst, challenged him and asked him what he had done, he replied “...sorry and temptation got the better of me.”
6. Mrs. Havea threw him out of the house that night and they never lived together after that.
7. After the discovery of the serious indecent assault on her young daughter, the offence against her son came to light when she spoke to him to find if there had ever been untoward in her husband’s behaviour to his step-son.
8. Mr. Havea denied the offences in his police interview and at trial, but was convicted of two offences, one relating to each complainant.
9. An offence under section 125 (1) Criminal Offences Act, serious indecent assault on a child under 12, carries a maximum sentence of 7 years.

Aggravating features

1. Serious breach of trust.
2. Offending witnessed by mother.
3. Length of time offending carried on for.
4. Coercive behaviour towards a child; Tupou.
5. No remorse.
6. Took place in the family home.

Mitigating features

1. Lack of previous convictions.

Victim impact report

10. The ramifications of this offending have shaken the whole of Mrs Vunivesi Havea’s immediate family. Her son, Tupou has coped well but has been left frightened of Mr. Havea.
11. Agnes is simply too young to know what happened.
12. Mrs. Havea still finds it very difficult to believe what happened. Her home and well as her children were violated and she had to go through a trial where she was made out to be dishonest.
13. She feels ashamed in her own village.
14. Her older daughters who live with her have been hurt by this to the point they want to change their surname to remove the stigma the defendant has caused.

Pre-sentence report

15. In short, Mr. Havea is said to hold no remorse.
16. A life that has disintegrated into drug use and violent abuse of his wife, as well as marked by infidelity, his is said to bear the hallmarks of this type of offending, in that he seeks to blame Mrs. Havea; “a commonly known pattern of sex offenders.”
17. The conclusion is that he is a very high risk to society.
18. Nothing specifically appears to have triggered this downward spiral either in his upbringing or more recently.

Defence submissions

19. I have been directed to no sentencing authorities.
20. His advocate has also sought to blame Mrs. Havea and, once again, argued she was unfaithful and so the cause of deep stress that affected him.
21. I totally reject this, for the reasons I did at trial and very much the reasons the probation officer rejects that narrative.
22. I have read carefully all three of the references submitted on his behalf.
23. His brother’s reference that takes aim at and blames Mrs. Havea and then two further references that describe him, essentially, as church going, devout and a good family man and parent.
24. I am not able to accept any of these in his favour for obvious reasons; Mrs. Havea is not to blame and he has sexually abused her children. Neither the acts of a Christian or a devoted parent.
25. I do not hold any of what is said therein against Mr. Havea when I turn to my sentence.
26. I do not hold it against Mr. Havea that this is what has been put forward by way of mitigation though.

Comparable sentences

27. I turn first to count 4, which to my mind is the most serious offending, the licking of his 18-month old step daughter’s vagina.
28. The Crown have referred me to the case of R v Vi [Unreported, Supreme Court, CR 234/2020 LCJ Whitten QC].
29. I am bound to say that factually that is a very different case and more serious, with digital penetration of the vagina and the victim fainted and there was found to be soft tissue injuries and evidence of both vaginal and digital penetration.
30. So I have not taken this into account when fixing Mr. Havea’s sentence.
31. I have gone on to consider two authorities referred to in the case of R v Vi, the latter, R v Motuliki, the Crown have helpfully drawn my attention to in their submissions.
32. R v Peni Halai [Unreported CR 79/2017] The defendant was convicted on a 9 count indictment, 3 of those counts concerned offences of serious indecent assault upon a child under the age of 12 years. He received a sentence of 4 years for putting his penis in one victim’s mouth. Concurrent to that, a term of 2 ½ years for licking another victim’s vagina. Those terms were concurrent to a term of 6 years and 3 month’s imprisonment for an offence of sodomy.
33. R v Motuliki [unreported, CR 55/2019, Paulsen LCJ] The defendant who was aged 56 years old had pleaded guilty to a single count of serious indecent assault of a child under the age of 12 years old. He had touched and licked the 5-year-old victim’s vagina but there had been no direct touching with the defendant’s genitalia. It was not a premeditated act nor was it lengthy, yet it was a breach of trust. A starting point of 2 years was adopted. The final sentence recognised that his remorse and lack of previous convictions, resulting in 18 months’ imprisonment with the final 6 months suspended for 2 years on conditions.
34. In relation to count 3, I have not been directed to any comparable sentences by the Crown.
35. R v Mo’unga [TOSC 13; 33/2017; Justice Cato] where the defendant was sentenced for a multi-count indictment involving, inter alia, two counts of carnal knowledge and two counts rape, as well as serious indecent assault, the victim being under 12 years old.
36. The two counts of serious indecent assault related to placing the victim’s hand or holding her hand on the 46-year-old defendant’s penis. He pleaded guilty to all the counts he faced.
37. For those offences of serious indecent assault, he received sentences of 15 months’ imprisonment, which were concurrent with the sentence of 15 years, handed down for carnal knowledge of a child and later her rape.
38. R v P.F. (Supreme Court, Cr 212/2019, Lord Chief Justice Whitten QC). The 17-year-old victim was sexually assaulted by her 42-year-old step-father where her breasts and vagina were groped inside her clothing.
39. The head sentence was a starting point of 2 years’ imprisonment with an increase of a further year to reflect the breach of trust and the disparity in their ages.
40. Count 1, 3 years for touching of her vagina and Count 2, 2 years for touching her breasts.
41. R v Uikelotu [Afeaki 208/2019 Lord Chief Justice Whitten QC, who imposed a starting point of 18 months for an attack by a 17-year-old on a 51-year-old woman where her breasts were groped outside her clothing.
42. In the instant case the Crown have suggested a sentence of “2-3 years”.
43. I think that is excessive considering the approach in this line of authorities.
44. A starting point of 12 months is what I adopt, bearing in mind all the features of the offence.

Double counting

45. Adopting the two starting points that I do, I take into account all the aggravating features as set out and do not increase the sentences any further.
46. Offences involving young victims almost always will involve a serious breach of trust, by their very nature. They will frequently be committed in the family home and a pattern of coercive behaviour involved too.
47. For all these reasons, in this specific case, I have decided that to increase the starting points would, effectively take into account the same criteria twice and so prejudice this defendant in arriving at the correct overall sentence.
48. This gives a starting point of 2 years for count 4 and 12 months for count 3.
49. Neither of these staring points I feel able to reduce. The defendant was convicted after trial and there has been no remorse and nothing in the pre-sentence report to explain or mitigate and a conclusion was reached that he is a very high risk to society

Concurrent or consecutive sentences

50. Following the observations in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 I consider the questions of concurrent or consecutive sentences and then turn to totality.
51. As observed in Hokafonu v Rex [2003] TOCA 3 offences that are unrelated should normally attract consecutive terms.
52. There is no reason why this case should be taken out of the general rule. Consequently, I make these sentences consecutive to one another.
53. I have gone on to consider the question of totality and but for this sort of offending I do not think a sentence of 3 years’ imprisonment is in any way excessive.

Suspension

54. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
55. Whilst Mr. Havea is not young and has not co-operated with the authorities and shows no remorse, so that there cannot even start to be rehabilitation. In this case the decision is stark. None of the factors of co-operation or remorse or rehabilitation are triggered.
56. In this case that would simply leave no hope or change. Whilst I cannot suspend as much as 12 months of his sentence there must be some identification of the fact of his previous good character must be recognised and it is sincerely hoped this will play a feature in his rehabilitation.
57. I therefore conclude that his sentence should be one of 3 years’ imprisonment.
58. The final 6 months will be suspended for 2 years on the following conditions that;
    1. He reports to probation on his release.
    2. He does not commit any offence punishable by imprisonment.
    3. He lives where directed.
    4. He completes an alcohol and drugs awareness course as directed.
       

Total sentence

59. Mr.’Aisea Pese Havea is sentenced to 3 years’ imprisonment, with the final 6 months suspended for 2 years on the above conditions.
60. Sentence to run from date of first remand.
    

NUKU’ALOFA N J COOPER

22 APRIL 2022 J U D G E