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R v S.H. (a pseudonym) [2022] TOSC 34; CR 135 of 2021 (28 April 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


CR 135 of 2021

REX

-v-

S.H.

(a pseudonym)


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mrs T. Kafa-Vainikolo for the Prosecution

Mr P. Tatafu for the Defendant

Date: 28 April 2022


The charges

  1. On 4 October 2021, the Defendant pleaded not guilty to three counts of serious indecent assault and one count of rape. His trial by judge alone commenced on 11 April 2022 and concluded on 13 April 2022. On 22 April 2022, the Defendant was found guilty on the three counts of serious indecent assault and not guilty on the rape: R v S.H. (a pseudonym) [2022] TOSC 23.

Non-publication order

  1. At the time of the offending the victim was between 12 and 13years of age. The Defendant is her father. Therefore, in respect of these sentencing remarks, I repeat the order made in the reasons for verdict pursuant to section 119 of the Criminal Offences Act, that the identity of the victim and her evidence in the proceedings shall not be published in the Kingdom in a written publication available to the public or be broadcast in the Kingdom.

The offending

  1. The offending in this case, occurred against a backdrop of long-term physical, mental and emotional abuse by the Defendant inflicted primarily on his then wife, and secondarily on his children to her, the eldest of whom is the victim.
  2. In relation to count 1, in January 2020 the victim was taking a shower. She heard the Defendant banging on the door to open it saying that he needed to use the toilet. During the trial the Defendant said that he did so as a ruse to try and see who his then wife was talking to on her phone, as he blamed all their marital problems on her having had an affair when he was working in New Zealand and he believed that she was continuing contact with her boyfriend. The victim tried to hurry up. She heard the door open. She grabbed her towel but was only able to partly cover herself. The Defendant blocked her from leaving the bathroom. She felt uncomfortable. She was standing next to a bucket of dirty clothes. The Defendant reached for the bucket, but as he did, he ran his hand down the victim’s naked left side, buttocks and thigh.
  3. By July 2020, the victim’s mother was no longer able to endure the Defendant’s abuse. She told the Defendant she was going for a break. She told her children she was going to get help. She left the family home and moved back to Tongatapu. As she did not then have the financial ability to provide for them, she had to leave her children with the Defendant.
  4. In relation to count 2, on a night in February 2021, around 10pm, the victim asked to use the Defendant’s phone. She asked him whether there was any credit in his account so that she could top up the data. He was lying on a bed. He called her to come to him so he could check the phone. He also did not want the victim communicating with her mother. The Defendant then told the victim to sit on the bed where he was lying on his side. She sat on the edge with her back to his stomach. He told her to lie down with him saying “come baby, sleep with daddy tonight”. The victim feigned that her back was aching as she was scared to lie down next to him. The Defendant then moved closer. The victim felt his penis pushing against her lower back. She was shocked. She was about to stand up when the Defendant grabbed her and told her to sit back down on the bed. She complied although she was scared. The Defendant kept telling her to lie down. She kept saying that her back hurt. At one point, the Defendant tried to push the victim down on the bed and in doing so he touched her left breast.
  5. In February 2021, the Defendant went to Tongatapu to commence divorce proceedings and for custody of his children. He left his children with his cousin. He did not return to Vava’u until May. In April, the victim was able to call her mother and pleaded with her to come to Vava’u. The next week, the mother travelled to Vava’u. She collected the children and they all stayed with family for a time before moving to Salvation Army accommodation. At that stage, the mother was pregnant. She did not have the ability to take the children with her but wanted to spend time with them. When the Defendant heard what had happened, he returned to Vava’u and pursued the mother and the children.
  6. In relation to count 4, on the evening of 9 May 2021, the Defendant came to where the victim and her siblings were staying with their mother and he took the victim, one of her sisters and their younger brother to spend the night with him. When they returned to his house, the Defendant asked the victim why she had spoken to her mother and a Women’s and Children Crisis Centre counsellor about him. He was shouting at her. The victim and her sisters started to cry. The Defendant told the victim to come and sit with him on the couch. She felt that if she didn’t do so, he would beat her. So she sat at the other end of the couch. The Defendant said he wanted to apologize. He then moved closer and started rubbing the victim’s thigh. She put a cushion on her lap so he wouldn’t touch her. The Defendant said he was sorry for shouting and asked her to forgive him. He then told the victim to give him a kiss. He then kissed her on the neck two or three times close to her chest.

Prosecution submissions

  1. The prosecution submitted the following as aggravating features of the offending:
  2. The only mitigating feature is the Defendant’s lack of previous convictions.
  3. The Prosecution referred to the following comparable sentences:
  4. The Crown’s position in relation to an appropriate sentence is as follows:

Defence submissions

  1. In his submissions on behalf of the Defendant, Mr Tatafu noted that the Defendant has been employed in his own business as an auto mechanic by which he earns between $300 and $500 per week. In September 2021, Niu J granted the divorce application between the Defendant and the victim’s mother and also ordered that the Defendant to pay $170 per week maintenance four the four children of that marriage. The Defendant also paid for the children’s school fees, uniforms and study materials.
  2. On 28 September 2021, the Defendant remarried, and he and his wife moved to Vava’u.
  3. By reason, principally, of the fact that the Defendant is said to have been continuing to pay maintenance for the children, Mr Tatafu submitted that any sentence of imprisonment should be fully suspended.
  4. In reply, the Prosecution submissions included reports from the victim’s mother that the Defendant had been paying the $170 per week consistently up to January 2022, but then had been inconsistent since with the last payments being on 22 January, 18 March and 9 April this year. More importantly, according to the Prosecutor, the victim’s mother reported that she and the children do not rely on that maintenance to support them which is self-evident given the recent irregularity in the receipt of those payments. She says that she and the children are able to survive through the financial support of her parents and siblings overseas as well as weekly assistance sent to her by her partner (and father of her now 9 month old daughter) who is currently working in Australia. The mother also indicated that she intends to look for work once this case is finalized. Until now, she has had to spend more time than normal tending to the victim and her needs in relation to this matter.

Presentence report

  1. The probation officer interviewed the Defendant, his ex-wife, his current wife, a case management advocate from the WCCC in Nuku’alofa and a Pastor of the Defendant’s church.
  2. The Defendant is the fourth of 12 children in his family. He had a good upbringing. He completed form 6 at High School and then went on to technical institute where he trained in automotive engineering and has since gone on to conduct his own business as an auto mechanic. In 2004, he travelled to Fiji for further education where he met the victim’s mother whom he married and they had four children. In 2009, they migrated to New Zealand. After a number of years of what the Defendant described as “financial struggle”, the mother and the children were sent to Tonga while the Defendant remained in New Zealand to work and provide financial support. In 2019, he became aware that his then wife was having an affair and so he decided to return to Tonga to reunite with the family and try to make a fresh start. According to the victim’s mother, that did not turn out to be what they expected but was rather a traumatic experience involving both having problems with alcohol abuse. That then led to the Defendant’s violent behavior which was fueled by always blaming her previous marital affairs. The result was constant verbal and physical abuse including in front of the children.
  3. The victim’s mother told the probation officer of an occasion when the victim and the next oldest daughter showed her pornographic images on the Defendant’s mobile phone including of his wife naked while taking a shower. She described the Defendant as always being jealous that she could be having an affair with other men in her workplace and that he stalked her and followed her to keep checking on her during work hours. One time, she said, he tried to kill her by suffocating her with a pillow while she was sleeping. On that, and other occasions, the children intervened. That was when she decided to leave and to seek help from the Women’s and Children’s Crisis Centre in Nuku’alofa. The case manager from that office confirmed the reports by the ex-wife of the Defendant’s abuse and violent behavior towards her and the children. She also confirmed that, during counselling, the Defendant had admitted to violent abusive behavior but for which he blamed his wife’s previous affairs.
  4. The Defendant reported to the probation officer that he has ‘transformed’ by joining the United Pentecostal Church in March last year. As noted, in September last year, his divorce from the victim’s mother was finalized and later that same month, the Defendant married his current wife who is now five months pregnant with their first child. His new wife described the Defendant as a religious and well-behaved man, and she did not believe that he had done what he has been convicted of doing. The Pastor from his church also highly recommended the Defendant and described how he had started counselling the Defendant early last year before the Defendant became a full member of that church. The Pastor said that he fully trusted the Defendant in his behavior and his work, so much so, that the Defendant has been appointed a youth minister within that church, whereby he is responsible for all youth development activities both spiritually and socially.
  5. The Defendant is reported to be in good health. He told the probation officer that he does not smoke cigarettes, nor does he consume alcohol or illegal drugs. He further says that he spends most of his leisure time in religious work, especially with youth.
  6. In relation to the offending, the Defendant told the probation officer that while he accepted the Court’s decision, he maintains his innocence and denies having committed the offences.
  7. According to the probation officer, the Defendant is identified as having behavioral problems related to domestic and family violence and a history of alcohol addiction. Those problems are identified as major contributing factors which led to the end of the marital relationship and his family life with the victim’s mother and their children. However, the Defendant took advantage of the vulnerabilities of the victim. As her father, the Defendant’s offending constitutes a significant abuse of his authority and breach of trust at the highest level. The officer described the Defendant’s attitude of denial and blaming the victim and his ex-wife as a commonly known pattern and technique used by sex offenders for escaping the consequences of their criminal behavior. The officer expressed serious concern at the fact that the Defendant is engaged as a religious Minister of Youth, especially in relation to young girls.
  8. Finally, the probation officer opined that due to his lack of remorse and violent and illegal previous behavior, together with the trauma inflicted on the victim and her other family members, the Defendant is considered a very high risk to society. As such, the probation officer recommended a custodial sentence.

Victim impact statement

  1. The victim reported the following. She experiences ongoing mental and emotional difficulties resulting from this offending at the hands of her father. She still regularly breaks down in tears when having to recount what occurred or when she remembers what happened. She described it variously as her having very different feelings which often hit her all at once. She has been betrayed by her father. She feels shocked, scared and disgusted by what he did. She often questions why this happened to her and, as yet, has not been able to resolve or reconcile those questions or feelings. She feels some consolation in the fact that it was her instead of her sisters who was the target of her father’s sexual abuse. She remains scared that it might happen again. As a result, she is now very cautious around men especially when she senses them walking behind her. Her constant agonizing and questioning about what occurred to her consumes a lot of her time and energy. She has also been affected in her relationships at school and with her teachers. She lost some friends due to these events and the talk around her school at the time about what happened. She has isolated herself from others more than previously.
  2. Notwithstanding, last year, the victim was still able to maintain a very high academic standard. After being a straight A student and top of her class, the victim lamented at having ‘dropped’ to second place in her form last year. In that regard, the victim said that she prayed very hard for the trial to take place before school started this year so she wouldn’t have to worry about it like she had to last year.
  3. Most of her family in Vava’u are on the Defendant’s side. When they found out about the offending, they were not happy. The victim described it as feeling like they wanted to hunt her and her mother down and that they blamed her mother for what occurred. The victim is still scared and embarrassed at times and tries to avoid any contact or engagement with her father’s family.
  4. She still suffers from nightmares about what happened including visions of the Defendant (and now his new wife) chasing her in her dreams, which has impacted her sleep. She is currently finding it hard to forgive her father. She simply wants nothing more to do with him. She is trying to work through the process of forgiving him for her own peace of mind and to find peace with God. Notwithstanding all these difficulties, the victim reported that with the help of her mother and the Women’s and Children’s Crisis Centre, she is trying to come back “twice as strong” as the girl she used to be.
  5. In relation to the Defendant’s sentence, the victim said that she wants him to be behind bars because she is scared that he might do something more to her. She is also scared because in the intervening period he seems to be spying on her and her family all the time. She said that if he does not go to prison, everything that she has gone through in order to have him brought to justice will be a waste.
  6. The victim’s mother reported the following. It took her months to fully understand what had occurred because her daughter found it very difficult to go into detail about what had happened whenever the issue was raised. The mother described the impact on her daughter as including that she is now more of an indoor person and a bookworm and not as sociable as she used to be. The victim hides away from the Defendant’s family, as mentioned. On one occasion last year, while they were at the Salvation Army accommodation, some of the Defendant’s aunts and female cousins came and took the victim to a front porch at that accommodation and questioned her about what happened. They asked the victim why she did not feel sorry for her father.
  7. On recent occasions when the Defendant has come to pick up the other children for weekend visits, the victim screams out in anger telling her siblings to hurry up and “disappear with their father”. She does not call him anything other than her sibling’s father. At one time, the victim’s notebook was found to contain notes of suicidal thoughts saying that she was tired and angry at everyone.
  8. The mother regrets ever leaving the children in July 2020 and blames herself for what happened. She describes the Defendant’s actions as disgusting and inhuman, that his daughter trusted him and that he broke that trust. She also noted that the Defendant has not apologized to his daughter or to her or the other children for what he did. Notwithstanding, the mother has decided to forgive the Defendant because of her Christian beliefs. Despite her having found the ability to forgive the Defendant because of her faith, she reported that there is still a lot of talk in the community that these problems were caused by her, and she feels that she and the children are looked down on by the community.

Starting points

  1. Section 123(3)(a) of the Criminal Offences Act provides a maximum statutory penalty for serious indecent assault of 5 years imprisonment.
  2. In addition to comparable sentences referred to by the Crown, I have also had regard to the following cases referred to in Pulotu [2020] TOSC 60:
  3. Here, in assessing the seriousness of the actual offending itself, that is, the touching in each of the three cases, I consider that it was not as serious as the others referred to above including in P.F. However, I do consider the offending here to be more serious than that in Afeaki. In many respects, it is similar in terms of seriousness to the offending in the recent decision in Tauki’uvea.
  4. Accordingly, I set the following starting points:
  5. On account of the circumstances of aggravation including, in particular, and perhaps most importantly, the breach of trust involved in a father sexually molesting his daughter and, by definition, the age disparity between the two, I consider it appropriate to increase each of those starting points by approximately one third. That results in starting points of 27 months on count 1, 21 months on count 2 and 16 months on count 4.

Mitigation

  1. The Defendant has not shown any remorse and, in fact, maintains his innocence. Therefore, the only mitigating factor, as the Crown noted, is his lack of previous convictions. For that, I reduce the starting point by approximately one eighth or 12.5%.
  2. The resulting sentences of imprisonment are as follows:

Concurrent or cumulative

  1. Ordinarily, cumulative sentences should only be imposed if the offences are viewed as separate crimes or are unrelated. The question involves two issues. First, whether the offences were so closely connected that they should be regarded as part of the one cause of criminal activity. Second, whether, in any event, the totality principle requires the sentences to be made wholly or partially concurrent. See ‘Asa [2020] TOSC 72, referred to in Vi [2021 TOSC 91.
  2. From a temporal perspective, the offending here clearly involves separate offences. However, having regard to the totality of the offending and the nature of it, including the victim’s references to other occasions on which similar offending occurred, but which are obviously to be dealt with discretely in this sentence, I consider it appropriate to take 4 months from count 2 and 2 months from count 4, that is, a total of 6 months and add it to the head sentence in count 1, thereby resulting in a total head sentence of 30 months’ imprisonment. The balance of count 2 and 4 are to be served concurrently with that head sentence on count 1.

Suspension

  1. Having regard to the principles stated in Mo’unga [1998] Tonga LR 154 at 157, the factors in favor of some suspension are:
  2. Factors against suspension include that:
  3. As has been stated by this Court, in accordance with the guidance of the Court of Appeal, on numerous occasions, the so called “breadwinner plea” carries little weight in determining whether a Defendant should be sent to prison. Further, those matters, of themselves, will rarely, if ever, be a reason to suspend a sentence: P.F, ibid and Wolfgramm [2020] TOSC 78. I also take into account that the victim’s mother has indicated she does not need the maintenance that has been paid by the Defendant. I also note that the Defendant and his new wife decided to marry and fall pregnant when they both knew he was facing these charges.
  4. In all those circumstances, I am satisfied that it is appropriate to order that the final 10 months of the sentence of 30 months be suspended for a period of 2 years on conditions.

Result

  1. The Defendant is convicted of serious indecent assault and is sentenced to the following terms of imprisonment:
  2. To reflect the totality of the offending, 4 months from count 2 and 2 months from count 4 are to be added to count 1 resulting in a head sentence on count 1 of 30 months imprisonment.
  3. The balance of the sentences on counts 2 and 4 are to be served concurrently with the head sentence on count 1.
  4. The final 10 months of the head sentence are to be suspended for a period of 2 years on condition that during the said period of suspension, the Defendant is to;
  5. If the Defendant fails to comply with those conditions, he will likely be required to complete the balance of his term of imprisonment.
  6. Subject to compliance with the said conditions and any remissions available pursuant to the Prisons Act, the Defendant will be required to serve 20 months in prison.

NEIAFU
M. H. Whitten QC
28 April 2022
LORD CHIEF JUSTICE

[1] Referred to recently in Pousima [2021] TOSC 131.

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