R v Fifita [2023] TOSC 29; CR 170 of 2019 (5 May 2023)

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

CR 170 of 2019

REX
-v-
KE’ALOHA FIFITA

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Fifita for the Prosecution
Defendant in person
Date: 5 May 2023

Charges

1. By indictment dated 22 October 2019, the Accused was charged with four counts of serious indecent assault contrary to s. 124 of the Criminal Offences Act. At the conclusion of his trial on 23 March 2023, the Defendant was found guilty on counts 1, 2 and 3 and not guilty on count 4 (the Crown having offered no evidence).

The offending

2. At all material times, the Complainant was a 15-year-old girl, living with her family at Longoteme. The Defendant and his de facto partner (who is related to the Complainant’s mother) were also living with the family. The Complainant said that prior to the assaults, she got on well with the Defendant, that she respected him like a father, and that nothing untoward had happened before.
3. In relation to count 1, on a night in November 2018, while the Complainant’s mother was away at a funeral, her father was asleep outside in a tent, and the Complainant was lying on a lounge with her sleeping younger siblings, the Defendant returned to the house after a kava session and kissed the Complainant on her cheek. The Complainant pushed him away. She felt scared and embarrassed. Shortly after, the Defendant’s partner told the Complainant that if she loved her, she would not say anything to her mother. The Complainant complied.
4. In relation to counts 2 and 3, on a day in February 2019, after she returned home from school, the Complainant was getting changed in her room, when the Defendant entered the room, came up behind her and fondled her breasts inside her shirt and bra. When the startled Complainant tried to push his hands away and ‘shake him off’, the Defendant turned to the side and placed his hand inside her pants and touched her vagina. The Complainant told the Defendant to stop and pushed him away. Again, she felt scared and embarrassed and was worried that her mother would be angry if she found out. Before he left the room, the Defendant told the Complainant to keep quiet ‘until death’.
5. About a week or so later, the Defendant moved out of their home. The next day, after a family meeting, at which the Defendant apologised to his de facto partner, the Complainant told her mother what had happened. Her mother then took the Complainant to the police to lodge a complaint.
6. When interviewed by police, and again during his evidence at trial, the Defendant asserted that it was the Complainant who had effectively molested him and forced him to touch her. For the reasons set out in the verdict, the Defendant’s version was rejected.
7. The Defendant first appeared before this Court on 8 October 2019. Cato J granted him bail on conditions which included that he was not to proceed beyond Tongatapu and that he was to return to Court on 22 October 2019 for a trial date to be fixed. On that date, the Defendant failed to appear, and Cato J issued a warrant for his arrest. It was not until 20 September 2022, that the bench warrant was able to be executed. In the intervening almost three years, the Defendant had, in breach of his bail conditions, absconded to ‘Eua.

Victim impact statement

8. The Crown’s submissions included the following from the Victim in relation to the impact of the offending on her.
9. She is now 20 years of age. She is living at Popua in a residence belonging to a relative of her older brother’s defacto partner, to be closer to school. Her parents and siblings are still at Longoteme.
10. After the incidents, the Victim had trouble sleeping. She was frightened and on alert, and wanted to stay awake in case the Defendant did something to her siblings, most of whom slept with her in the living room.
11. She regrets not saying anything about what happened during the family meeting. She could not stop thinking about what happened and she often relived the events of that day.
12. She continued pushing herself to attend school but could not focus. As a result, she failed her exams. She repeated the same level the following year, but did not sit her exams because she was still affected by the incident.
13. When she sees a Police vehicle, she feels frightened and recalls what happened to her. She continues to feel unsafe. Memories of the incident still haunt her. Her siblings are now very protective of her, and they tell her not to go out anymore.
14. She now has a strained relationship with the Defendant’s (now ex) partner because of the offending. She is in constant fear of the Defendant. He has not apologized, and she will not forgive him. She never wants to see him again.

Crown’s submissions

15. The Crown submits the following as aggravating features of the offending:
    • (a) breach of trust;
    • (b) more than one occasion;
    • (c) age disparity (15 vs 46);
    • (d) premeditation may be inferred from the evidence of the Defendant’s then partner of his suspicious behaviour in watching the Victim while she was asleep in the living room; and
    • (e) ongoing effects on the Victim.
16. The Crown submits that the only mitigating factor is the Defendant’s lack of previous convictions.
17. The Crown referred to the following comparable sentences:
    • (a) S.H. (a pseudonym) [2022] TOSC 34 - The Victim was 12 at the time of the offending. The Defendant, who was her biological father, was found guilty after trial of three counts of serious indecent assault whereby, on separate occasions, he touched the Victim’s naked buttocks and thighs (count 1), her breasts outside her clothes (count 2), and stroked her thigh and kissed her neck several times (count 4). The following starting periods of imprisonment were set: count 1 – 27 months; count 2 – 21 months; count 4 – 16 months. They were reduced by 1/8^th or 12.5% for the Defendant’s previous good record, resulting in the following sentences: count 1 – 24 months; count 2 – 19 months; count 4 – 14 months. A combined 6 months from the sentences for counts 2 and 4 were added to the sentence for count 1, resulting in a total head sentence of 30 months’ imprisonment. The final 10 months of the sentence was suspended for two years on conditions.
    • (b) Leimoni Tito Siasau [2021] TOCA 22 - The 33 year old Appellant was found guilty after trial of serious indecent assault whereby he inserted his finger into the 49 year old Victim’s vagina outside of her tights. She was his supervisor, and the offending took place while at work. The Court of Appeal considered the sentences in PF [2020] TOSC 30 and Kakao [2020] TOSC 86, where the Supreme Court imposed starting points of three years’ imprisonment, for offending that was more serious involving direct contact with the genitalia and two separate assaults against a teenage girl PF and a home invasion in Kakao. For Siasau, the Court revised the sentence below by setting a starting point of 2 ½ years to appropriately reflect the seriousness of the offending. A discount of six months was applied to reflect the Appellant’s previous good character, resulting in a sentence of two years imprisonment, with the final year suspended.
    • (c) Vea [2021] TOSC 4 - The Victim was 13 years of age and known to the Defendant. The Victim was at the Defendant's house with her siblings where they often stayed for a few days at a time. Early one morning, the Victim was awoken by the Defendant fondling her breasts. A starting point of 12 months' imprisonment was set. For the breach trust and age disparity, another 12 months was added making a total starting point of 2 years imprisonment.
    • (d) PF [2020] TOSC 30 - The Defendant was found guilty after trial of two counts of serious indecent assault against his stepdaughter, who was 17 at the time. Count 1 involved him touching the Victim’s vagina, while count 2 involved him fondling her breasts outside of her clothing. Starting points were set of 3 years for count 1 and 2 years for count 2. The Defendant’s lack of previous convictions did not reduce those but was considered in suspending the final 12 months of the sentence.
18. The Crown submits the following sentencing formulation:
    • (a) a custodial sentence is warranted;
    • (b) the head count is count 2 (touching the Victim’s vagina);
    • (c) by reference to the comparable sentences above, appropriate starting points are: count 1 – 16 months; count 2 – 3 years; and count 3 – 2 ½ years.
    • (d) reduced by 12.5% for the Defendant’s lack of previous convictions;
    • (e) resulting in sentences of: count 1 – 14 months; count 2 – 31 months; and count 3 – 26 months;
    • (f) following the reasoning in ‘Asa,^[1] and Attorney General v Toki,^[2] the sentences for counts 2 and 3 should be served concurrently, but 5 months of the sentence for count 1 should be added resulting in a total head sentence of 36 months or 3 years imprisonment;
    • (g) for his lack of previous criminal convictions, the final 12 months should be suspended for 2 years on the usual conditions including completion of courses on domestic violence and sexual abuse.

Presentence report

19. The Defendant is now 50 years of age, unemployed, and recently a resident of Angaha, ‘Eua. He is the third eldest of six children. He had a decent upbringing in Ta’anea, Vava’u, with his parents actively present until their separation in his adulthood. He received a limited education and thus has only been able to obtain unskilled labor work.
20. The Defendant married in 1992 and had four children. They are now aged 27 to 19 and live overseas. In 2016, his wife went to Australia on the seasonal workers scheme where she commenced a relationship with another. His relationship with his de facto partner at the time of the offending ended shortly after he was arrested. In 2020, he commenced another relationship with a woman at ‘Eua.
21. He claims (as he did at the trial) to suffer from gout and painful joints especially when it is cold and during extreme physical work. The probation officer notes, however, that the Defendant did not provide any medical report to verify the fact or extent of his conditions.
22. In relation to the offending, the Defendant maintains his innocence and that the Victim initiated the sexual acts on him. He told the probation officer that his only lesson from these proceedings has been not to get involved with teenage girls again.
23. The Defendant told the probation officer that in May 2019, he apologised to the Victim’s mother. However, the Victim’s parents reported that the Defendant never apologized and that they are still emotionally hurt from what he did. He has made no attempt to apologise to the Victim.
24. In light of the Defendant maintaining his innocence, his lack of remorse, his breach of trust, that he committed the offences on a child (age 15), and made no effort to apologize to the Victim, the probation officer assesses the Defendant’s risk of re-offending as moderate. His current partner in ‘Eua also has children of her own. The probation officer opines that while the Defendant cohabits with young girls, and is not remorseful for his crime, his risk of recidivism increases.

Starting points

25. The maximum statutory penalty for serious indecent assault is 5 years imprisonment.^[3]
26. The paramount sentencing considerations for crimes of serious sexual abuse are the protection of the vulnerable, deterrence, denunciation or condemnation of such behaviour and punishment of those who commit such crimes: R v Taulanga [2007] Tonga LR 102; R v P.F. [2020] TOSC 30 at [10]; R v ‘Asa [2020] TOSC 72 at [39].^[4] To that end, the overall starting point must be set at a level which objectively not only denounces this kind of offending in Tonga, which is regarded as taboo, but acts as a deterrent and is protective of girls and young women: R v Pahulu (Unreported, Supreme Court, 13 December 2016, Cato J).
27. In addition to those identified by the Crown, I consider the seriousness of the instant offending to be aggravated by the Defendant touching the bare skin of the Victim’s breasts and vagina and threatening her to keep quiet to the end of her life. The seriousness of his attitude to the offending was also exacerbated by his repeated assertions at trial (where she had to recount and relive the ordeal) that the 15-year-old Victim consented to and was the sexual instigator, thereby seeking to besmirch her name and reputation. A moment’s reflection on the proposition that a young girl would fabricate complaints of serious indecent assault and put herself and her family through the exposure and risk of humiliation at trial, for no discernible reason or benefit, belies the dishonesty, irrationality, and callousness of the Defendant’s position. His statement to the probation officer that all he has learned is to not get involved with teenage girls also reflects his lack of remorse. His breach of bail by moving to ‘Eua shortly after arraignment, no doubt seeking to evade justice in this matter, and in direct contravention of the condition of his bail that he not leave Tongatapu without a court order, also reflects a flagrant disregard for the law.
28. However, by comparison to the sentences relied on by the Crown, I consider the instant offending to be not quite as serious as in those cases underpinning the Crown’s submitted sentencing formulation. For instance, in S.H., the starting point for the equivalent of count 1 here of 18 months was for repeated kissing of the complainant’s neck. Here, the Defendant kissed the Victim once on her cheek. Similarly, in relation to count 2, the starting point in P.F. of 3 years for touching the complainant’s vagina, involved more violence to achieve it, a clear intention to proceed to rape her had she not escaped, and a closer to filial relationship between the offender and the complainant. A more apt comparison may be found in the case of Siasau where for inserting a finger but outside the clothing, a starting point of 2 ½ years was set. I have also considered the many other comparable sentences referred to in the above cases.
29. Having regard to all the above matters, I set the following starting points:
    • (a) count 1 – 12 months;
    • (b) count 2 – 2 ½ years; and
    • (c) count 3 – 2 years.

Mitigation

30. By reason only of the Defendant’s lack of previous convictions, those starting points will be discounted to the following sentences:
    • (a) count 1 – 10 months;
    • (b) count 2 – 26 months; and
    • (c) count 3 – 21 months.

Totality

31. I agree with the Crown’s submission that the sentences for counts 2 and 3 should be served concurrently (being part of the same criminal course of conduct on the same day in February 2019). However, to reflect the totality of the criminality involved, a portion of the sentence for count 1 (where the offending occurred in November 2018) should be added to those concurrent sentences. I consider an appropriate addition to be 4 months, thereby making an aggregate sentence of 30 months’ imprisonment.

Suspension

32. As the Crown submitted, the only factor^[5] favouring some suspension of the Defendant’s sentence is his lack of previous convictions. He is not young, he did not honestly co-operate with the authorities, there was no identifiable diminution in culpability, he has not shown any remorse and, according to the probation officer, he poses a moderate risk of re-offending.
33. Nevertheless, to provide deterrence and incentive for reform, I consider it appropriate to suspend part of the sentence.

Result

34. The Defendant is convicted of serious indecent assault and is sentenced on:
    • (a) count 1 to 10 months’ imprisonment;
    • (b) count 2 to 26 months’ imprisonment; and
    • (c) count 3 to 21 months’ imprisonment.
35. To reflect the totality of the offending, 4 months of the sentence for count 1 is to be added to the sentence for count 2. The sentence for count 3 is to be served concurrently with the aggregate sentence of 30 months’ imprisonment.
36. The final 12 months of the sentence is to be suspended for a period of 2 years from the date the Defendant is released from prison on condition that during the said period of suspension, the Defendant shall:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the Probation Office within 48 hours of his release from prison;
    • (d) reside where directed by his Probation Officer; and
    • (e) complete courses on sexual abuse and domestic violence as directed by his Probation Officer.
37. Failure to comply with those conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.
38. Finally, pursuant to s. 119 of the Criminal Offences Act, I direct that the identity of the Complainant 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.

NUKU’ALOFA	M. H. Whitten KC
5 May 2023	LORD CHIEF JUSTICE

---

^[1] [2020] TOSC 72

^[2] Unreported, Court of Appeal, AC 19 of 2020, 6 April 2023

^[3] ss 124(3)(a)

^[4] Citing R v Langi [2013] TOSC 21 at [8].

^[5] Of those discussed in Mo'unga v R [1998] Tonga LR 154 at 157.