R v Latu [2022] TOSC 37; CR 198 of 2021 (20 May 2022)

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

CR 198 of 2021

REX

-v-
Sione Palu LATU

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Ms. T. Kafa for the Prosecution
Mr. S. Fili for the Defendant
Date of Sentence: 20 May 2022

1. Order made under section 119 that no detail may be published that would lead to the identification of the victim in this case.
2. The case was before me for arraignment on 11^th January 2022 when he pleaded guilty to the single count of serious indecent assault contrary to section 124(1) and (3) Criminal Offences Act.
3. The defendant is a 76 year old man who lives in Pelehake. On Sunday 18^th September 2021 he visited the home of the 19 year old victim, Sepiuta Siale. It was approximately 0800 hrs and she was asleep. Mr. Latu came to the house, he said, to see Miss Siale’s grandmother, with whom she lives. He often visits her.
4. He is related to Miss Siale as his wife is her father’s aunt.
5. Mr. Latu went into her bedroom uninvited and told Miss Siale to wake get up and make her grandmother breakfast.
6. She pretended to be asleep and ignored him.
7. He then proceeded to touch her buttocks and vagina through her clothing as she lay on her bed.
8. She sat up and in answer to Mr. Latu said she would make her grandmother breakfast.
9. He tried to sit on the bed and asked her to kiss him.
10. She cried out for her uncle and Mr. Latu left the room. By the time she got to the living room he had left their home.
11. Her uncle noticed there was something wrong when she later started to cry and she told him what had happened.
12. Her uncle went to see Mr. Latu but he was not at home. He spoke instead to his daughter and her husband.
13. Later these two they came to see Miss Siale to apologise for Mr. Latu’s behaviour.
14. Approximately two weeks later Miss Siale’s uncle heard that Mr. latu was now denying the assault on his niece. Her hearing this made her decide to go to the police and report the matter.
15. Mr. Latu was arrested and interviewed by the police. He denied the offences but stated he was remorseful.

Victim impact statement

16. Miss Siale found the offence traumatising. Mr. Latu was a frequent visitor her home and someone she trusted.
17. The assault against her effected her schooling as she was about to take exams and the police kept coming to speak to her even during her exam week.
18. The stress and distraction caused her to fail those exams, something she had never done before.
19. Perversely a close relation was banned by her parents from seeing Miss Siale and their friendship suffered.
20. Her sleep became patchy and her thoughts would often come back to the offending, especially when seeing Mr. Latu’s relatives in town.
21. She wanted to forgive him but could not when she heard about his repeated denials.

Pre sentence report

22. He is now 76 years old. He has a good standing in his community and everyone from town officer to church minister to his family speaks highly of him.
23. He plainly was not admitting the offence given that the report noted that he had claimed to have pulled at her tights to have woken her.
24. The breach of trust is highlighted, as the defendant is related to the grandmother of the victim by marriage, was a friend of the grandmother and a frequent guest at her home.
25. The report noted that the defendant suffers from heart disease and also dementia.
26. I also note the attached letters of reference and their contents.

Medical report

27. As a consequence of what was stated in the pre-sentence report further enquiries were made the Mental Health Facility of the Vaiola hospital.
28. Dr. Puloka had previously provided a short report of his psychiatric assessment of Mr. Latu and concludes that his mental status is “fit with his age .”
29. I also note that he “completely denied the allegations” when he spoke to the Doctor.

Comparable sentences

30. R v Uikelotu Afeaki [2020] TOSC 4, CR 208/ 2019. The defendant 15 years old groped the victim’s buttocks and breasts over her clothes. LCJ Whitten QC imposed a starting point of 18 months, which was reduced by 1/3^rd for a guilty plea.
31. R v P.F. (Unreported; Supreme Court 215/2019, Whitten LCJ) The defendant was convicted of two counts serious sexual assault, for touching the 17 year old step daughter; fondling her vagina and breast inside her clothing. He was given a 3 year prison sentence, the last 12 months suspended.
32. Siasau v R (Tonga COA, AC 15/2021) (CR 113 of 2020) The defendant was convicted of one count of serious indecent assault. This related to digital penetration of the 33 year old victim, through her tights. She was an employee of the defendant.
33. The Court of Appeal imposed a 2 ½ year starting point, reduced that by 6 months for his previous good character and suspended the final 12 months on the condition that he commit no offence punishable by imprisonment.

Maximum sentence

34. The maximum sentence under section 124 (3) (a) is 5 year’s imprisonment, for an offence of serious indecent assault.

Aggravating features

1. The serious breach of trust; he is related to the victim by marriage.
2. The offence was committed in the victim’s own bed room.
3. The repeated denials the defendant made both around and within the community the victim and defendant live and subsequently; for example to probation.
4. Disparity in ages.

Mitigating features

1. Guilty plea saving the victim having to give evidence; albeit he continues to deny any sexual motive for the touching.

Crown’s submissions

35. The Crown submits, when considering the comparable sentences, the aggravating and mitigating features, plea and circumstances of this case, a staring point of 2 ½ years is applicable.
36. From that a reduction of 6 months for the guilty plea and suspend the final 6 months of the sentence.

Sentence

37. In considering all the material in this case and the Crown’s submissions, I conclude that a starting point of 2 ½ years would be too high.
38. The touching was over clothing and there was no penetration, through clothing or at all.
39. The disparity if ages and that the assault took place in the victim’s own bedroom are disturbing aspects.
40. So too is it that the victim had to endure the defendant using his standing in the community to dismiss her allegations, so as to pretend that she was dishonest.
41. I therefore conclude that that the correct staring point is 2 year’s imprisonment.
42. I distinguish the case of R v Afeaki; ibid, in that in the instant case the defendant is older, the disparity in ages with the victim more pronounced, the touching included her vagina and that it was a serious breach of trust as well as the intrusion into the victim’s own bedroom.
43. For his early guilty plea I reduce that by a third, 7 months, to give a sentence of 17 months.
44. I see nothing in the material before me that allows me to discount that term any further.
45. In considering his age and lack of previous relevant convictions I will consider that in the context of whether any portion of his sentence ought to be suspended.
46. As for his standing in his community and the positive reports made of him to probation, I can not take that into account as he has used his position to deny and distort the fact of what he did and cause the victim further upset.

Suspension

47. I have reflected upon the principles for suspending a sentence as set out in Mo’unga [1998] Tonga LR 154.
48. The key to therein is rehabilitation. In this case the denials, even to probation, when he stated the touching was just to wake her, he deflect what he ultimately did, and reveals someone who does not truly admit their offending.
49. Without that there can be no real rehabilitation.
50. Yet, I must balance against that stark approach that there was a timely plea of guilty.
51. Balancing those two factors I reduce the portion of the sentence that can be suspended.
52. Of his 17 month sentence I shall suspend 3 months for 2 years on the following conditions :
    1. Report to probation within 48 hours of release;
    2. Commit no offence punishable by imprisonment;
    3. Live where probation direct, and
    4. Complete a life skills course as directed.

Total sentence

53. 17 month’s imprisonment, the last 3 months of which is suspended for two years on the above conditions.
    

NUKU’ALOFA N. J. Cooper

20 May 2022 J U D G E