R v Hia [2022] TOSC 70; CR 126 of 2022 (3 August 2022)

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

CR 126 of 2022

REX

-v-
Tevita Mafi HIA

SENTENCING REMARKS

BEFORE THE HONOURABLE COOPER J
Counsel: Mrs. L. Aonima for the Prosecution
Mr. S. Fili for the Defendant
Date of Sentencing: 3 August 2022

1. An order under section 119 has been made that means no detail can be published that would lead to the identification of the complainant in this case.
2. Mr. Hia falls to be sentenced for 6 counts of indecent assault.
3. Two counts of indecent assault on a child, contrary to section 125 Criminal Offences Act, that in 2017 he variously touched the breasts and vagina of ‘Unaloto Tonga in 2017, when she was under the age of 12 years old.
4. A further four counts of serious indecent assault, on a child under 15, contrary to section 124 (1) (3) & (5) Criminal Offences Act, in that he variously touched her vagina, licked her vagina and touched her breasts in the years 2018 and 2019.
5. He was convicted on these 6 counts on 21^st June 2022, following a trial. One count of indecent assault on a child under 12 he was acquitted of.
6. For the purposes of sentence the events we are concerned with span from April 2017 to 2019.
7. There are two counts of indecent assault for each of those years. Each of those two counts represents one incident.
8. That means one occasion in 2017 when he touched the victim’s breast and vagina, one occasion in 2018 when he licked her vagina and touched her vagina. Then in 2019 an occasion when he touched her breasts and licked her vagina.
9. The victim, his step daughter was 11 years old when this first happened, and it continued until she was 14 years old.
10. The first occasion he abused her was when she was alone in her room after school folding laundry. He came in, fondled her breasts and touched her vagina inside her underwear. As he did this he masturbated himself to ejaculation.
11. She explained in her evidence that before this time Mr. Hia had started physically abusing her. He would hit her. He used a Tongan wooden pillow to do this. He growled at her and threatened to beat her.
12. His physical assaults on her scared her and was a major factor in why she did not tell anyone what had happened to her.
13. Regarding the offence in 2018 she gave evidence of his coming into her bedroom as she asleep, stroking her hair. When she awoke to this, took fright and tried to move away he hit the bed to scare her and force her to submit. It was just him and her in the fale at this time and that scared her.
14. He touched her vagina inside her clothing. He licked her vagina and masturbated himself as he did this.
15. He made her touch his penis as this happened. He kept repeating how much he enjoyed what he was doing. She shut her eyes so as to at least not watch and cried.
16. He licked her vagina and then ejaculated on her vagina.
17. The offence in 2019 took place as she was asleep in her bed. Again, it started with his stroking her hair and then hitting her, on her hand this time, when she awoke and tried to move away from him. She was alone with Mr. Hia in the fale as her step mother had left early that morning. He got a bat that is used to open the windows and tried to hit her with it, to cause her to submit to his abuse.
18. She tried to hide herself pulling the blanket over her. He pulled it off and she was crying and shaking and did not know how to escape. He touched her breasts inside her clothing. He licked her vagina, masturbated himself and made her touch his penis. He put his penis on her vagina and then ejaculated on her vagina.
19. She turned away to face the wall and closed her eyes to try and escape.
20. I noted in my verdict that this abuse went on about every two weeks from 2017 to sometime in 2020.
21. The Crown did not prefer an indictment that reflected what had happened to the victim. On her evidence there were probably about 60 to 70 occasions that this happened to her over some 3 years, given that her evidence was this happed about every two weeks. I fully accept her evidence on that point.
22. Despite that I shall ensure that he is sentenced for only the offences for which he was convicted.

Maximum sentences

23. For offences contrary to section 125 Criminal Offences Act, where the victim is under 12 years old, the maximum sentence is one of 7 years’ imprisonment.
24. For an offence contrary to section 124 (1) (3) & (5) Criminal Offences Act, where the victim is under 15, the maximum sentence is 5 years’ imprisonment.

Comparable sentences

25. R v Motuliki, CR 55/2019 (Unreported 13^th January 2019, Lord Chief Justice Paulsen). A starting point of 2 years’ imprisonment was considered appropriate where a 56 year old man had touched and licked the vagina of a 5 year old. Paulsen LCJ noted that the abuse was not protracted and there had been no exposure of the defendant’s genitals, nor had there been any violence nor premeditation. Those factors being absent were significant in arriving at the starting point he did.
26. R v Pulotu, CR 232/2019 (Unreported 25^th August 2020, Lord Chief Justice Whitten QC) The victim awoke to find the defendant digitally penetrating her vagina and sucking her breast. It was noted that the act of penetration was worse than fondling outside. The abuse of trust was not the same as that of one of a parent or step parent. A starting point of 2 ½ years was adopted.
27. R v Felemi & Latu 129 & 129 2018. The victim was the daughter of the second defendant, the step-daughter of the first defendant, then aged 42. She was aged 13 years old at the time of the offending.
28. The offending concerning the first defendant was on two occasions on one night first licking her vagina, then fondling her breasts and again licking her vagina.
29. On another occasion licking her breasts and rubbing his penis on her vagina.
30. The next occasion was licking her vagina, fondling her breasts and rubbing his penis on her vagina.
31. He threatened the victim with violence if she told anyone.
32. Justice Cato imposed a starting point of 4 years for the offending on the first occasion; 4 ½ for the offences on the second occasion. He described this as offending by an older man, in apposition of trust, with threats and coercion as belonging in the upper range for the appropriate starting point.
33. There were reductions made to reflect the guilty plea. To that final term a year of the sentence from the final offence’s sentence was added.

Aggravating features

1. abuse of position of trust;
2. use of violence;
3. masturbating in front of victim;
4. rubbed in his penis on her vagina;
5. ejaculating on victim’s vagina;
6. forcing victim to touch his penis;
7. length of time these offences were committed over;
8. premeditated;
9. disparity in ages, the defendant was 57 years old when he committed the first offence, the victim 11 years old, and
10. by virtue of her age the victim was vulnerable.

Mitigating features

1. Previous good character.

Victim impact statement

34. ‘Unaloto Tonga was interviewed about these offences and a report compiled, dated 6^th July 2022. She explained how she was trying to move on with her life. She remembered how scared she was when Mr. Hia abused her and did not have anyone to turn to, especially living in the small community of Nomuka.
35. The episodes of violence and using weapons like sticks or brooms to beat her or the threats of such beatings were very clear to her still.
36. She loved her Aunt Malili, with whom the defendant is married and this offending has damaged that relationship too.
37. Her mother was interviewed and she has been traumatised by these events. She blames herself for letting her daughter get in harm’s way.

Pre-sentence report

38. Mr. Hia is now 62 years old. His wife saw him as a supportive husband and someone who provided for their family. The Town Officer and Reverend Kafoika all spoke highly of him.
39. Mr. Hia, while he stated that he accepted the Court’s finding, continues to deny these offences.
40. The report writer notes that this continued denial means that the two young children who are under his wife’s care are in danger. He is described in the probation report as being very dangerous and so posing a significant risk to young children especially young girls.
41. The report writer concludes that there has been some form of remorse shown, but ends the report by stating that Mr. Hia poses “a very high risk to ... society.”
42. In considering the probation report, there must be some question over whether there truly has been any remorse, given his continued denial of the offences.

Crown’s submissions

43. The Crown have served their sentencing submissions. They helpfully included comparable cases.
44. In considering those cases, it appears to me that the offending in the instant case most closely resembles that which occurred in R v Felemi & Latu (Ibid), which was not a case the Crown had relied on in their submissions.
45. The licking of breasts, licking of vagina and rubbing his penis on her vagina are all features of that case and the instant case.
46. Cato J imposed a 4 year and a 4 ½ year starting point, as discussed above. That was within the context of the maximum sentence being 5 year’s imprisonment.
47. He stated this was “ appalling behaviour..” and went on to say :

“Offending of this kind by a much older man in a position of trust is in the upper range of starting point. Violence, coercion and the threat of it was part of his manner of offending and is to be deterred.”

48. In reviewing the aggravating features and coming to their conclusions on their submissions on sentence, the Crown have mentioned violence, the age difference, abuse position of trust, that he masturbated in front of the victim. They have noted the offences were premeditated.
49. They have not noted that Mr. Hia ejaculated on the victim’s vagina, nor that he rubbed his penis on her vagina, nor that he forced the victim to touch his penis and crucially, that the victim was vulnerable because of her age.
50. In my estimation, each of itself is a serious aggravating feature.
51. When Cato J came to the conclusion he did, regarding the starting point in R v Felemi and Latu, he also stated :

“Protection of girls and young women is paramount in my sentencing considerations here and also denunciation or condemnation of sexual abuse of minors.”

52. The Crown submit that the head sentence be applied to count 2, by which I believe they mean the offending on the first occasion, counts 1 and 2.
53. That it going to be my approach.
54. That was when ‘Unaloto Tonga was 11, so aged under 12 for the purposes of section 125 Criminal Offences Act. The maximum sentence being 7 years’ imprisonment.
55. The Crown has submitted that a starting point of 3 years is appropriate.
56. I have noted above that their consideration has not extended to take into account the four serious aggravating features nor have they considered the case of R v Felemi and Latu (ibid).
57. When I consider that case and factor in the further aggravating features, both those the Crown have not considered and were absent from R v Felemi and Latu as well as the higher sentencing tariff that applies because of the victim’s tender years, I form the view that the right starting point is one of 3 years’ imprisonment.
58. This I increase to 4 years to reflect the he masturbated to ejaculation in front of her.
59. For the instance of abuse in 2018, counts 4 and 5 and 2019, counts 6 and 7, always remembering the maximum sentence is 5 years; I impose starting points of 2 years.
60. Those sentences I likewise increase to 3 years to reflect the aggravating features.
61. Other than his previous good character, which I will consider when I turn to whether any portion of his sentence should be suspended, I have not been able to identify any mitigation. Particularly that he continues to deny the offences.

Consecutive or concurrent sentences

62. Consecutive sentences are generally only appropriate for unrelated offences; Kolo v Rex [2006] TOCA 5 at [11].
63. I will consider this question before turning to that of totality, that is a connected question, but a distinct consideration of its own, following the rationale in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.
64. These offences are similar in their type but are separated in time and in that sense quite individual.
65. I therefore conclude that it is appropriate to impose concurrent sentences.

Totality

66. In considering this next step I have carefully thought about the offending and the tariffs that are imposed in case involving offences of this type in Tonga.
67. I conclude that an overall sentence of 11 years would be too high, so I take 1 ½ years from each of the sentences for the offences in 2018 and 2019 to add to the head count to give a sentence of 7 years.

Suspension

68. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
69. Those principles, set out in that case, are to be considered so as to promote rehabilitation.
70. The considerations advanced in that case was whether the defendant was young, previous good character, or long time without offending. Whether the defendant would take the opportunity to rehabilitate.
71. Where, despite the gravity of the offending, there was no premeditation, or the offence was provoked or coerced by a co-defendant. Or, if there had been cooperation with the authorities.
72. Here it is hard to see what future there is for rehabilitation when Mr. Hia continues to deny the offences.
73. That said, he was of previous good character.
74. I conclude in those circumstances I can suspend a portion of his sentence.
75. I shall suspend 6 months for two years on the following conditions :
    1. not commit any offences punishable by imprisonment;
    2. report to probation within 48 hours of his release;
    3. be placed on probation;
    4. live where directed by his probation officer; and
    5. Attend and complete a course on sexual abuse at the direction of his probation officer.
       

Result

76. 7 years’ imprisonment, the last 6 months suspended on 2 years on the above conditions.
77. His sentence is back dated to the date of his remand, on 21^st June 2022.
    

N. J. Cooper

J U D G E

NUKU’ALOFA

3 August 2022