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R v 'Anitema [2022] TOSC 52; CR 68 of 2021 (13 May 2022)

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


CR 68 of 2021


REX
-v-
JOSHUA HALAFIHI ‘ANITEMA


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mrs T. Kafa-Vainikolo for the Prosecution
Mr Clive Edwards SC for the Accused
Date: 13 May 2022


The charges

  1. On 27 April 2021, the Defendant pleaded not guilty to one count of rape, contrary to s. 108 of the Criminal Offences Act, and one count of serious indecent assault, contrary to s. 124 of the said Act.
  2. On 30 March 2022, after a five-day trial, the Defendant was found guilty on both counts.

The offending

  1. At the time of the offending, the victim was 18 years of age.
  2. For a few days prior to 27 September 2020, the victim stayed with friends. Her father was unhappy with her leaving the house. On 27 September 2020, he found her. She wanted more independence. He did not want her going out again. They argued. The father then called the Nukunuku Police Station and asked the police to detain the victim because she was drunk. There was no evidence at trial that she was. The police responded and the victim was taken to the station and detained.
  3. The Defendant was one of the police officers who commenced duty at the Nukunuku station that afternoon.
  4. During the early hours of 28 September 2020, the victim woke up to find the Defendant standing outside her cell. He asked her for a drink of her cordial which her mother had brought her. She said ‘yes’. The Defendant entered the cell, sat down on the bed where the victim was sitting and had a drink. She felt nervous although she thought police officers must have been allowed to come into cells. The Defendant then asked her if she knew him. She said she didn't. He said he noticed her when her father had called the police in 2019 and that he was one of the officers who picked her up from the church and took her to the police station. The victim did not recognise him from that occasion. He then told her that she looked pretty and was ‘skinnier now’. He asked if she knew his sister, if she had a boyfriend and if she had slept with anyone. The victim said that she didn’t know. She felt strange. He asked her if she wanted to call anyone. She asked whether that was allowed. He said it wasn't but that he could help her. She said she wanted to call her friend. The Defendant then asked her whether she had had a relationship with a policeman. She said ‘no’. He asked her if it was okay for him to ‘court her’. She said ‘yes’ although she didn't think anything would happen and didn't take it seriously because he didn't sound serious.
  5. The Defendant then told the victim to go to the toilet to use the phone, which was some seven to eight metres from her cell. As they went through the cell doorway, the Defendant turned around and kissed the victim. He then touched her breast and slid his hand down to her vagina outside her clothing. She slapped his hand away. Neither said anything. The victim was surprised. The Defendant then turned off the lights in the hallway and went around behind the victim. She started walking slowly towards the toilet block, where the lights were also off. She did not think he would do anything more. She just wanted to use the phone.
  6. At the toilet block, the victim went inside the first cubicle while the Defendant stood outside facing the hallway. He asked her for the phone number. He then came close towards the victim and started touching her breast and vagina outside her clothes again. She was shocked and scared, and could only stand there, not knowing what to do. She was not sure whether he might hurt her or even kill her.
  7. The Defendant then tried to pull the front of his tupenu to one side. He told the victim to suck his penis. In her fear, she complied, for about a second or two. She then stood up. He then told her to go back to the cell so that "he could eat her like an animal".
  8. Once back in the cell, the victim sat on the bed. She did not see anybody else around. She was very scared. The Defendant went into the cell. He leaned forward, laid her down and pulled her tights down to underneath her knees. He then inserted his finger inside her vagina. She tried to hold his hand, but he did not stop. He then bent down and she felt his tongue on her vagina. Then he inserted his penis inside her vagina. After three or four thrusts, the Defendant ejaculated on the outside of the victim’s vagina. She froze, not knowing what the Defendant might do if she resisted or complained given he was a police officer and much older than her. The whole encounter took more than an hour.
  9. The victim was kept in custody for another two days. She was eventually visited by a family friend to whom she complained. She also told a supervising officer and when her father came to get her, she angrily told him, in general terms, what had happened.
  10. A police investigation ensued. The victim identified the Defendant from three different photographic line ups. The Defendant spent a good deal of the following week, and before he was charged, trying to persuade other officers at the station, the victim’s parents and her close friend that he was innocent. On or about the day he was to be charged, the Defendant took the friend to Central Police Station, where the victim’s parents had again arranged for the victim to be locked up, on the pretence of having the friend talk to the victim about the matter, only to have the friend locked up for purportedly breaching curfew.
  11. When he was arrested and charged, the Defendant did not cooperate.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The only mitigating factor submitted is the Defendant’s lack of previous convictions.
  3. The Crown referred to the following comparable sentences:
  4. Here, the Crown proposes the following sentence formulation:

Victim impact statement

  1. The victim is now 20 years of age. She is the eldest of three children. She continues to live with her parents.
  2. The victim reported that as a result of the offending she:
  3. The Defendant has not apologized to her or her family.

Presentence report

  1. The Defendant is 31 years of age. He is the third of five children. When he was three years old, his parents divorced. His father migrated overseas and remarried. His mother took care of him and his siblings. He completed his secondary education before becoming a missionary between 2011 and 2013 and then, more recently, a police officer.
  2. He is married with two children. He and his wife are expecting their third child.[1] His wife described the Defendant as a ‘very family oriented’ man who has ‘never reacted with violence towards her or others’ and has never shown signs of interest in other women. She described their children as being attached to the Defendant as he has been their full-time caregiver.
  3. The supervisor at the Nukunuku station opined that in the short time he knew him, the Defendant ‘seemed decent and was obviously very committed to his Mormon faith’. He regarded the offending as shocking and out of character as well as unprecedented at that station.
  4. The Defendant maintained his innocence to the probation officer and added that he is “dissatisfied with his conviction and hopes to submit an appeal”. He said that his only contact with the victim was to arrange for her to use the office phone. He considers that the victim’s false complaint against him was due to “her frustration of her prolonged remand in custody” and that she “deserves no apology as he never committed any crime against her”.
  5. The report attached letters of reference from the Town Officer of Kolofo’ou and the President of the Nuku'alofa Tonga Harbour Stake of the Church of Jesus Christ of Latter-Day Saints.
  6. The probation officer opined that the Defendant presents a low risk of re-offending due to his ‘good character’ and lack of any previous offending, and that he ‘poses no visible danger to the society’ as he is ‘actively involved with his community and family’. However, the ‘downside’, as the probation officer put it, is the Defendant’s continued denial of the offending and the devastating impact of it on the victim. Nevertheless, the probation officer expressed ‘high hopes’ for the Defendant’s prospects of ‘effective rehabilitation’. To achieve that, the probation officer recommended that any sentence be partially suspended, and that during the suspension period, the Defendant be placed on probation.

Defence submissions

  1. In his submissions, Mr Edwards’ identified factors relevant to mitigation in sentencing such as:
  2. The balance of Mr Edwards’ submissions included selective references to aspects of the evidence at trial, such as:
  3. To the extent that those submissions were an attempt to cast doubt on the verdict, they were unhelpful.
  4. A number of character references (including the two attached to the presentence report) and certificates for educational and training achievements by the Defendant were attached and referred to in Mr Edwards’ submissions. Ironically, the latter included a certificate of participation for a workshop in October 2019 on gender, human rights and ending violence against women.

Starting point

  1. The relevant maximum statutory penalties are 15 years’ imprisonment for rape and 5 years’ imprisonment for serious indecent assault. A maximum sentence is only appropriate for the very worst offending: 'Aisea v Rex [2012] TOCA 12 at [4].
  2. Rape is always a serious crime. Other than in wholly exceptional circumstances, it calls for an immediate custodial sentence. A custodial sentence is necessary for a variety of reasons. First of all, to mark the gravity of the offence. Secondly to emphasize public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last, but by no means least, to protect women. The length of the sentence will depend on all the circumstances: R v Roberts (1982) 4 Cr. App. R. (S) 8.
  3. In 'Asa [2020] TOSC 72 at [39], it was observed that sexual offending involving young victims has been described as ‘alarmingly prevalent’ in the Kingdom and ‘one of the most damaging ills to the moral and legal integrity of any society.’ Therefore, to achieve the aims of denunciation, protection and deterrence in respect of sexual offending involving an adult offender and a young or adolescent victim, the Court will almost always be compelled to impose significant prison terms within the maximum penalties prescribed by Parliament: [2]
  4. Since at least the decision of the Court of Appeal in Fa'aoso v R [1996] Tonga LR 42, the primary starting point for rape in Tonga has been considered to be five years imprisonment. Aggravating factors may justify an increase in that starting point and mitigating factors may justify a reduction. That approach has been consistently followed in England, Australia, New Zealand and Tonga: 'Aisea v Rex, ibid.
  5. In addition to the comparable sentences referred to by the Crown, I have considered the following:
  6. Those cases illustrate how the accepted starting point of five years imprisonment may be increased for circumstances of aggravation beyond the violence inherent in non-consensual sexual intercourse. Those circumstances often reflect power imbalances between the offender and victim, whether physical, intellectual or relational and/or the use of weapons or other threatened or actual violence. They also highlight the significance of breaches of trust.
  7. The present case is marked by three particularly serious circumstances of aggravation, namely:
  8. For the reasons set out in the verdict, the victim’s detention at the Nukunuku police station was probably unlawful. However, that is not something for which the Defendant was responsible.
  9. Of all the comparable cases referred to herein, the most strikingly similar to the instant is that of Fungavai. It is of some little comfort to note that no other case involving a police officer sexually assaulting a detainee has been identified since Fungavai was decided in 2007, nor has it been referred to since, until now.
  10. In that case, the young female victim was (actually) intoxicated. Her mother asked the police at Mu’a to hold her overnight until she sobered up. During the night, the Defendant, a police officer, raped and indecently assaulted the victim. He almost strangled her and treated her in a most degrading manner before discarding her on the cell floor. Afterwards, the Defendant tried to bribe the victim not to make a complaint and to withdraw the complaint she eventually did file. The Defendant denied the charge throughout and, as here, caused the victim more trauma in having to ‘give evidence and relive her ordeal over again in a public setting coupled with having to endure a lengthy and detailed cross-examination’. Also, as here, Fungavai had no previous convictions and was married with children. However, unlike this case, Fungavai expressed remorse, regret and shame for his family.
  11. In imposing a sentence of seven years imprisonment, Ford CJ observed that:
  12. Those observations are equally apposite to the instant case.
  13. In determining the appropriate starting point for the head count of rape, I begin with the accepted primary term of five years imprisonment. Having regard to the principles, comparable sentences and the seriousness of the offending as marked by the circumstances of aggravation submitted and discussed above, I consider it appropriate to increase the starting point to eight years imprisonment. Had there been any greater physical violence inflicted, that starting point would have been higher.
  14. I set a starting point for the serious indecent assault of 2 years imprisonment.

Mitigation

  1. As the Defendant maintained his plea of not guilty throughout and has still not shown any remorse, the only available factor in mitigation is his previous good record. For that, I reduce the starting point on the rape to a sentence of seven years imprisonment and on the serious indecent assault to 18 months’ imprisonment, to be served concurrently with the head sentence.

Suspension

  1. In Fungavai, after considering the factors referred to by the Court of Appeal in R v Motulalo [2000] Tonga LR 311, Ford CJ declined to suspend any part of that sentence because:
  2. Again, similar considerations apply to the instant case.
  3. Mr Edwards’ apparent submission that any sentence be fully suspended cannot possibly be accepted. The only consideration in Mo’unga [1998] Tonga LR 154 at 157 which favours any suspension is the Defendant’s previous good record. Otherwise:
  4. There are, of course, other considerations such as the seriousness of the offending, the effect on the complainant, the personal circumstances of the offender or those dependent on him and the need for general and specific deterrence to be reconciled with the community’s interest in a sentence which will encourage the Defendant in his rehabilitation. Ultimately, ‘the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender’: Rex v Tau'alupe [ 2018] TOCA 3 at [15]; Attorney General v Fua'eiki [2021] TOCA 20 at [11][4]; Ikahihifo v R [2021] TOCA 21.
  5. The support by those who provided references and the positive aspects of the presentence report would suggest that the Defendant has good prospects of rehabilitation. However, as identified in the Crown’s submissions, in order to conduct the somewhat vatical assessment as to whether an offender is likely to take the opportunity for rehabilitation offered by a suspended sentence, genuine acceptance of responsibility and demonstrated remorse are necessary catalysts for any hope of lasting rehabilitation: R v 'O Pangai [2021] TOSC 50 at [21]. The Defendant here has expressed neither. In fact, he has indicated that he is considering appealing the verdict, which, of course, is his constitutional right. However, this sentence must be formulated on the basis of the verdict and findings of fact at trial. I am therefore ambivalent about whether suspension is likely to aid in his rehabilitation.
  6. On the other hand, I have also had regard to the fact that, as a former police officer, the Defendant’s imprisonment may impose greater hardship because he may be at risk of harm from other prisoners: R v Alalea [2020] TOSC 10 at [50].[5] But that is a risk he must be taken to have considered when he decided to commit the offence. Further, imprisonment will inevitably impose significant hardship on the Defendant’s immediate family. However, ‘that unfortunately is an all too frequent consequence of criminal offending’ which ‘cannot be an overriding mitigating factor in cases where the objective gravity of the offences and the presence of aggravating factors call for a custodial sentence’: Rex v Vake [2012] TOCA 7.
  7. After weighing all those considerations in the balance, I consider it appropriate to order that the final year of the head sentence be suspended on the conditions set out below.

Result

  1. The Defendant is convicted of:
  2. The final year of the head sentence is to be suspended for a period of two years on the following conditions, namely, that during the said period of suspension, the Defendant is to:
  3. Any breach of those conditions is likely to result in the Defendant being required to serve the balance of his term of imprisonment.
  4. Subject to compliance with the above conditions and any remissions available pursuant to the Prisons Act, the Defendant will be required to serve a maximum of six years in prison.
  5. As with the verdict, pursuant to s. 119 of the Criminal Offences Act, it is ordered that the identity of the complainant and her evidence taken in these proceedings shall not be published in the Kingdom in a written publication available to the public or be broadcast in the Kingdom.

NUKU’ALOFA
M. H. Whitten QC
13 May 2022
LORD CHIEF JUSTICE

[1] Although, as at the date of these remarks, that child may have been born.
[2] P.F. [2020] TOSC 30 at [25], [26] citing R v ‘Vailea & Pepe [2020] TOSC 27; R v Tu’i [2020] TOSC 54.
[3] Referred to in Rex v VP (a pseudonym) [2020] TOSC 26.
[4] Citing R v Motulalo [2000] Tonga LR 311 at 313.
[5] Citing R v Hicks and Pilarinos [2000] VSC 236.

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