R v Fe'ao [2022] TOSC 97; CR 21 of 2022 (25 November 2022)

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

CR21/2022

REX
-v-
SIALE FE’AO

SENTENCING REMARKS

Before: Justice P. Tupou KC
Appearances: Ms. H. Aleamotua for the Prosecution
Defendant in person
Date: 25 November, 2022

The charge

1. The Defendant was charged with one count of carnal knowledge of a young person, contrary to s. 121 (2) of the Criminal Offences Act.
2. On 3 October, 2022, the defendant changed his plea and pleaded guilty.

The offending

3. On the morning of 7 August, 2021, the 13-year old complainant was in town with her mother, Kalisi Finau (“Kalisi”). She was told stay with her 3-year nephew in the car, while Kalisi participated in a Bingo game. Around lunch time the complainant took her nephew and walked to Talamahu market with another friend.
4. There, she met the 21-year-old defendant at a barber’s shop in town. They talked and walked to the bus stop together.
5. Kalisi soon came looking and found her with the accused, intoxicated. She gave her a beating, cut her hair and sent her home.
6. When the complainant got home, she snuck away, hitched a ride into town and met up with the accused again and went with him to his home at Soup. From the night of the 7 August, 2021 to 11 August, 2021 the complainant was with the accused where he had sexual intercourse with her and performed sexual acts on her.
7. On 12 August, 2021, Kalisi filed a missing report of her daughter and the police found her and the accused at Sopu and took them to the police station.

Crown’s submissions

8. The Crown submitted the following as mitigating factors;
   1. guilty plea;
   2. first offending of this nature;
   100. apology had been accepted by complainant’s family;
   4. the complainant ran away from home to the defendant;
   5. she consented to sex;
   6. complainant had experienced sexual intercourse before.
9. The Crown submitted the following as aggravating factors:
   1. That the accused has previous convictions for similar offending (clearly wrong and contrary to the second mitigating factor noted above and no evidence of prior convictions was made available);
   2. this is a serious offence;
   100. the complainant was taken advantage of due to her young age.
10. The Crown referred to the following comparable sentences:
    1. R v Sione Pifeleti Maile – CR 58 of 2018 –the 18- year old defendant was convicted after trial for 4 counts of carnal knowledge of a girl who at the time was 12 years of age and was related to the defendant. He was sentenced to a good behaviour bond for two years, probation for that period and required the defendant to attend a life skills program.
    2. R v Samiuela Vailea – CR 80 of 2020 – the defendant pleaded guilty to one count of carnal knowledge of a young girl under the age of 15 and was sentenced to a bond of good behavior under s.198 of the Criminal Offences Act on conditions under s.199 of the said Act.
11. The Crown proposed that a non-custodial sentence was appropriate based on the offending and relevant authorities it relied on.

Pre-sentence Report

12. The Defendant is from a family of 9 siblings. He was adopted by his maternal grandparents at Kotu, Ha’apai. His parents at some point moved to Sopu, Tongatapu and he travelled between Tongatapu and Ha’apai to see his parents.
13. After his father died most of his siblings were looked after by his grandparents as the mother could not look after them on her own. He attended St. Joseph College at Ha’apai and completed 4^th form. He had to leave school to help out. The family’s main source of income came from fishing and weaving.
14. He is currently living at Touliki with an aunt, is unemployed but healthy.
15. The defendant say that he met the complainant for the first time on the day of the offence. He was surprised when she asked if she could go with him and he felt sorry for her. She told him she was afraid her mother would beat her again. He was intoxicated and did not know how old the complainant was. Apparently the complainant told him she was 17. His sister said she accompanied the police to their home in Sopu and found the complainant and another girl walking towards the home. She said that when the police handcuffed the defendant, the complainant told them to let him go because it was her idea to stay at his house in fear of her mother’s beating.
16. The complainant’s mother accepted an apology on behalf of the defendant from his aunt and sister.
17. The report opined that the defendant posed no significant risk to the community and has potential for rehabilitation and suggests a partly suspended sentence.
18. A letter from the Kolofo’ou District Town Officer was provided attesting that the defendant is a law abiding resident and has the respect and trust of the community and is reliable and trustworthy. Despite the letter appearing to have been written for an application (as revealed by the heading) I consider the comments relevant as to the character of the defendant in any event.

Starting point

19. The maximum statutory penalty for carnal knowledge of a young person under the age of 15 years is 5 years’ imprisonment.
20. In addition to the comparable sentences above, I have gone on to consider the sentence in R v Langi – CR 40 of 2021. In that case, the “victim”, like the complainant here, ran away from home to be with the defendant and was found after a search raised by her parents’ concern that she was missing. The “victim” in that case admitted that the defendant was her boyfriend and the sex was consensual. The defendant was discharged under s.204 of the Criminal Offences Act.
21. Here, although the complainant and the defendant were not in a relationship the complainant openly told the police it was her idea to go and stay with the defendant for fear of her mother beating her, that she consented to the sex and that it was not the first time she had sexual intercourse. For those reasons, I consider the approach in Langi relevant and appropriate.
22. Accordingly, having regard to the nature of the offending, the defendant’s guilty plea, his lack of conviction for similar offences, good character and the complainant’s mother accepting the defendant’s relative’s apology on his behalf, I adopt Cooper J’s approach in Langi that;

“...it is inexpedient to inflict punishment and a probation order is not appropriate”

23. The result is that the defendant is found guilty and convicted of carnal knowledge of a young person under s. 121 (2) of the Criminal Offences Act and discharged under s.204 of the said Act without conditions.
24. I also order that the identity of the complainant and her evidence taken in this proceeding shall not be published in the Kingdom in a written publication available to the public or be broadcast in the Kingdom pursuant to s. 119 of the said Act.
    

P. Tupou KC

J U D G E

NUKU’ALOFA

25 November, 2022