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R v Tulumi [2023] TOSC 33; CR 52 of 2023 (30 June 2023)

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


CR 52 of 2023

REX
-v-
SENITA SITEIKI TULUMI


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC


Appearances: Ms T. Vainikolo for the Prosecution
The Defendant in person


Date: 30 June 2023


The charges

  1. On 16 May 2023, the Defendant pleaded guilty to three counts of indecent assault on a child contrary to s 125 and four counts of serious indecent assault contrary to ss 124(1), (3), and (5) of the Criminal Offences Act.

The offending

  1. Over the period of the offending, the Complainant was between 11 and 14 years of age. The Defendant was 42 and living in a de facto relationship with the Complainant’s older sister. In 2020, the Complainant moved in with her sister and the Defendant.
  2. Count 1: On a night in April or May 2020, the Complainant was sleeping in her room when she felt someone kissing her. She awoke and saw the Defendant walking hurriedly to his room. The Complainant did not tell her sister because she was afraid her sister might think she was lying.
  3. Count 2: On another night between April and June 2020, the Complainant was sleeping when she felt the Defendant kissing her neck before again hurrying back to his room. Again, the Complainant did not tell her sister for the same reason.
  4. Count 3: In June 2020, the Complainant was lying down in the living room of their house. The Defendant touched her on her buttocks.
  5. Count 4: In December 2020, the Complainant became angry with her sister for hitting her, and so she returned to her father’s residence in Popua. However, during 2021, the Complainant visited her sister and slept over at her house. One night between February and June 2021, the Complainant was sleeping at her sister’s house. The Defendant laid beside her on the bed. She stood up but the Defendant moved towards her and kissed her. They continued to kiss and lay on the bed. The Defendant then sucked the Complainant’s breasts and tried to take off her pants, but she held on to them. She then heard her sister opening the door. The Defendant jumped out the window. The sister went outside to the veranda where the Defendant was standing, and they talked. The Complainant pretended to be asleep because she was afraid her sister might find out the Defendant was in the room with her.
  6. Count 5: One evening between August and September 2021, the Defendant came into the Complainant’s room and they kissed. He then sucked her breast, took off her pants and licked her vagina. They then lay on the bed and kissed. The Complainant’s sister, who was standing outside the window, called to the Complainant to turn on the lights. The Complainant did so while the Defendant remained on the bed. The sister then called to both of them to come outside. When they went out, the sister shouted at them. She and the Defendant then drove away. After a short while, the sister returned with the Defendant and then left alone. The Defendant told the Complainant that her sister now knew everything and that they could continue what they were doing. The Complainant said “no” because her sister might catch them again. Later, the sister returned and told the Complainant to pack her belongings and then returned her to their father’s house.
  7. The father took the Complainant to stay with his sister at Havelu. The Complainant lived with one of her aunt’s daughters (her cousin) in a closed-down shop in front of their house. The cousin gave the Complainant a phone which she used to contact the Defendant via Facebook Messenger. The Defendant then learned that the Complainant was staying in Havelu.
  8. Count 6: On an evening in the week of 14 November 2022, the Complainant was about to take a rain bath outside. When she was heading to the bathroom, she heard the horn of a vehicle. It was from the Defendant’s vehicle parked some distance away. He walked to a broken-down vehicle at the house. The Complainant went to him, and they kissed. A girl from the house called the Complainant and the Defendant hid. The Complainant then went to take a bath. The Defendant followed her, stood outside and peeped in. The Complainant told him to leave, but he remained. The girl came and told the Complainant to hurry up. The Defendant then left. The Complainant did not tell her aunt or anyone else what had happened because she felt she had fallen in love with the Defendant.
  9. Count 7: On the evening of 16 November 2022, the Complainant went to a nearby shop to buy snacks. As she was walking back, she reached a burned-out house when she heard a noise. It was the Defendant. She went to him and they kissed. The Defendant sucked under her breast so that no one would notice any marks. The Defendant then took out his penis and told the Complainant to suck it. She refused. The Defendant told her that it was “okay”, and then masturbated and ejaculated onto the Complainant’s pants. By that time, the Complainant’s cousin had become worried because the Complainant had been gone too long. When she went to check, she noticed the Defendant’s car parked nearby. She stood by the car but did not see the Defendant or the Complainant. After a while, she saw the Complainant walking toward the house. The cousin walked home with the Complainant and asked what was happening between her and the Defendant. The cousin then called the Complainant’s father, who took the Complainant to the Police Station and lodged a complaint.
  10. On 17 November 2022, the Defendant went to the cousin to apologise. She told him to apologise to the Complainant’s father.
  11. On 18 November 2022, Dr Meleane Toafa examined the Complainant and found a bruise on the underside of her right breast typical of a suction bruise. Although the Complainant’s genital examination was normal, Dr Toafa noted that:
“Sexual exploitation and non-penetrative sexual abuse of children has equally detrimental effects. The vast majority of sexually abused children, even in the form of penetrative abuse, will show no signs of it on genital examination, As such, the findings of the genital examination, do not refute in any way, the validity of her disclosure, nor does it imply lesser effect of the alleged actions on the child’s psychological and social well-being.”
  1. According to the summary of facts, on 19 November 2022, the Defendant apologised to the Complainant’s father and asked him to cancel the complaint. The father accepted the apology but told the Defendant that the complaint could only be cancelled by the Court.
  2. On 23 November 2022, the Defendant was arrested. The next day, he was taken before a Magistrate who remanded him in custody until 12 December 2022. On 6 December 2022, Police interviewed the Defendant but he chose to remain silent.

Previous convictions

  1. In March 2004, the Defendant was convicted in the Magistrates Court of unlawfully entering a building at night and trespass and sentenced to 6 months imprisonment suspended for 1 year. In August that year, he was convicted of abetment to housebreaking and ordered to perform 60 hours community service. In November 2005, he was convicted of assault but discharged.
  2. In February 2013, the Defendant was convicted of conspiracy, housebreaking and theft.[1] His head sentence was 6 months imprisonment. Later that month, he was convicted of assault and sentenced to 3 months imprisonment.[2] Later that year, he was again convicted of theft and sentenced to 2 months imprisonment.[3]
  3. In July and August 2014, the Defendant was again convicted of assault and ordered to serve 60 hours community service on each occasion.[4]
  4. According to the summary of facts, in 2019, the Defendant was deported from New Zealand. No reason or other details were provided. Upon an enquiry by the court for further information, on 23 June 2023, the Prosecution filed a memorandum advising that Tonga Police were still waiting for further information from the New Zealand authorities. Meanwhile, in the presentence report (filed on 21 June 2023 and referred to further below), the probation officer recorded, presumably from what he was told by the Defendant, that the Defendant was deported because he sexually abused a minor. On 28 June 2023, the Prosecution filed a memorandum of information from New Zealand Police (conveyed through the Tonga Police Serious Organised and Transnational Crimes Unit) that the Defendant was convicted on 20 August 2019 in the Manukau District Court on four counts of indecent acts upon a girl under 12, for which he was sentenced to 6 months imprisonment, 1 year special release on conditions including a registration order and a first warning stage 1 under the since repealed ss 86B(1)(b) of the New Zealand Sentencing Act.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits that the only mitigating factor is the Defendant’s early guilty plea.
  3. The Crown refers to the following comparable sentences:
  4. The Crown submits the following sentencing formulation:

Victim impact report

  1. The Prosecution submissions included a victim impact report which contained the following information.
  2. When her sister and the Defendant first came from New Zealand to Tonga, the Victim regarded the Defendant as a father. When the first incident occurred, the Victim was scared that her sister might find out about it. However, she was more concerned about being sent to her father’s house because, at her sister’s house, she was able to use mobile phones, whereas at her father’s house, she was not.
  3. When the Defendant continued to indecently assault her, she did not care anymore and was no longer scared of what he had done to her. She stayed home from school in Form 2 because she was distracted from her studies, partly from what the Defendant had done to her, but mainly due to family problems.
  4. Her father has remarried. She now lives with her mother’s cousin and some of her grandchildren.
  5. After the complaint was lodged, the Defendant asked the Victim to cancel it. She feels that even if the Defendant tried to apologise to her, she could not forgive him.

Defendant’s submissions

  1. On 25 June 2023, the Defendant filed a letter which I have carefully considered. In it, and in a multitude of ways, he expressed remorse for his offending. However, he also sought to blame the Victim’s father for being “the first to abuse her”. The Defendant considers that he has been brought in to pay for the father’s behaviour.
  2. The Defendant also referred to his financial support for his children who are living in New Zealand with his partner and for his aunt and uncle with whom he is living here in Tonga. The Defendant seeks mercy for the sake of his children and promises to change his life and become a better father.

Presentence report

  1. The Defendant is the illegitimate son of Melelupi Tulumi and Siosifa ‘Anau. His grandmother raised him until he was about 4 years of age when he was customarily adopted by ‘Isileli Lolo Tuiaki. He appears to have had a stable upbringing under the care of Mr Tuiaki until his early adolescence, when he returned to his mother.
  2. The Defendant attended Liahona High School for Forms 1 to 3 and then Saineha High School in Vava'u for Forms 4 and 5. After college, he obtained employment in cooking, security, and construction work.
  3. In 2005, the Defendant married Hetahi Fungavaka. In 2013, he moved to New Zealand. In 2015, according to the Defendant, he and Hetahi separated due to her extramarital affair. That same year, he met his current de facto partner, the Victim’s sister. They have three children aged 6 years, 4 years and 7 months.
  4. As noted above, the probation officer recorded that, in 2019, the Defendant was deported back to Tonga because of sexual abuse against a minor. Soon after, the Victim’s sister returned to Tonga to be with the Defendant. Last year, she returned to New Zealand with their children to give birth to their youngest child. They still maintain their relationship.
  5. The Defendant currently resides at Matahau at his maternal aunt’s residence. He is employed in construction work by which he financially supports his partner and children.
  6. The Defendant told the Probation Officer that the offending was consensual and that it occurred because the Victim showed an interest in him and inappropriate sexual behaviour for her young age. The Defendant also blames the Victim’s father for causing this behaviour by exposing her to his sexual activities with other women at their family home. Notwithstanding, he expressed regret for his offending as he now realizes that his family will likely face the consequences of his actions.
  7. The Victim’s father told the probation officer that when the Defendant attempted to apologise, he was drunk and became upset when his apology was not accepted.
  8. The Probation Officer assesses the Defendant’s risk of reoffending as low due to his remorse and guilty plea. However, as the Defendant is a repeat sexual offender, that risk can increase if he continues to live with young girls other than his own daughters. Although he is said to be remorseful, the Defendant’s attempt to ‘offset his culpability’ by shifting blame to the Victim and her father shows that he continues to believe that his criminal behaviour was justified.
  9. The Probation Officer recommends a partly suspended sentence on conditions including counselling on sexual violence.

Starting points

  1. The statutory maximum penalties are 7 years imprisonment for counts 1 to 3 and 5 years imprisonment for counts 4 to 7.
  2. As stated recently in R v Fifita:
“[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].[10] 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).”[11]
  1. I accept the Crown’s characterisation of the seriousness of this offending by reference to the circumstances of aggravation submitted.
  2. In contrast, I do not accept the Defendant’s purported submission to the effect that his culpability should be reduced by reason of the Victim having consented to him dealing with her. Section 125(2) of the Criminal Offences Act precludes any defence based on apparent consent by a child under 12 years. In a similar vein, s 124(5) provides that a young person under the age of 15 years cannot in law consent to what is otherwise an indecent assault. To entertain the Defendant’s submission would be anathema to those clear statutory protections.
  3. It should be self-evident from those provisions and the moral compass of any reasonable-minded adult that the vast majority of young persons, regardless of their physical development, are ill-equipped and inexperienced, both psychologically and emotionally, to understand let alone make informed decisions about the complexities of human interactions or relationships of a sexual or intimate nature. Predatory and opportunistic conduct such as that exhibited by the Defendant has the potential to inflict serious and lasting damage on the psyche and self-image of young victims and their future relationships. The victim impact report here contained some indications of such harm.
  4. Moreover, suggestions of the Victim at one time being, or thinking she was, “in love” with the Defendant, compared to her current feelings as reflected in the said report, illustrate the naivety and emotional immaturity to be expected of a young girl misguided and misled by a much older man grooming her with and for sensual pleasure. The conduct which is the subject of count 7 leaves little room for doubt that had the offending not been detected and ended when it was, the Defendant would likely have continued to escalate his advances on the Victim for the purpose of eventually having sexual intercourse with her.
  5. It follows that I reject entirely the Defendant’s hapless attempt to direct blame to the Victim’s father for the offending.
  6. Having regard to the seriousness of the offending, the statutory maximum penalties, the comparable sentences referred to above and the quintessential role of the Courts in protecting the vulnerable and deterring those who would interfere with them, I set the following starting points for terms of imprisonment: count 1 – 12 months; count 2 – 12 months; count 3 – 18 months; count 4 – 2 years; count 5 – 3 years; count 6 – 12 months; and count 7 – 2 ½ years.

Mitigation

  1. As noted by the Crown, the Defendant is entitled to a discount on those starting points for his early guilty plea, by which the Victim has been spared from having to give evidence and the State from the expense and resources of conducting a trial. However, I consider the submitted discount of 12 months against a head sentence of 3 years (approximately one third) to be overly generous and more consistent with a Defendant with no previous convictions, which is not the case here.
  2. Accordingly, I consider it appropriate to reduce the above starting points by approximately one sixth resulting in the following sentences: count 1 – 10 months; count 2 – 10 months; count 3 – 15 months; count 4 – 20 months; count 5 – 30 months; count 6 – 10 months; and count 7 – 25 months.

Concurrent vs cumulative

  1. The Prosecution has submitted that the sentences all be served concurrently. No rationale for that was provided.
  2. Given the period of approximately 30 months over which the seven counts occurred, there is some basis for at least partial cumulation of the sentences to reflect the totality of the offending.[12] However, as in Valikoula v R,[13] I tend to the view that as the offences involve only one victim, they are related,[14] and therefore should be regarded as one course of criminal activity.
  3. Accordingly, I will order that the sentences for counts 1 to 4, 6 and 7 be served concurrently with the head sentence for count 5.

Suspension

  1. At first blush, the factors discussed in Mo’unga v R favour little, if any, suspension of the resulting sentence.[15] The Defendant is not young. He has an unenviable criminal record spanning almost two decades including similar offending for which he was convicted in 2019 and deported from New Zealand. In Tonga, he has been sentenced to multiple terms of imprisonment the first of which was fully suspended. He did not co-operate with the police when questioned but subsequently pleaded guilty at the earliest opportunity. The offending was clearly premeditated, and I have rejected any suggestion of diminished culpability by reason of alleged provocation by the young Victim. It is pellucid that, on each occasion, the Defendant was the instigator and pursuer, to the point of apparent obsession. Despite his recent expressions of remorse, the Defendant has failed to make a proper apology to the Victim or her family and his attempts to shed blame on the Victim and her father belie any genuine regret or acceptance of responsibility for his actions. By that assessment, there is certainly no legally correct basis for full suspension. Such an outcome would also be at odds with community standards and expectations as well as Parliament’s obvious view as to the seriousness of, and consequences for, offending of this kind.
  2. Ultimately, however, this issue turns on whether the Defendant is likely to take the opportunity for reform afforded by a partly suspended sentence. In that regard, I note his continuing relationship with his partner (the Victim’s older sister) and their children even though they are now in New Zealand. Since his deportation, he appears to have had a good work history by which he has supported his family. However, for the reasons repeatedly explained by the Courts, little weight can be given to the so-called “breadwinner plea” as a basis, on its own, for suspension.[16]
  3. On balance, I am prepared to offer the Defendant what may well be his last chance for rehabilitation through partial suspension of his sentence.

Result

  1. In the result, the Defendant is convicted of indecent assault on a child and serious indecent assault and is sentenced to 2 ½ years (or 30 months) imprisonment.
  2. The Defendant is to be given credit for time spent remanded in custody for this proceeding.
  3. The final 12 months of the sentence are to be suspended for a period of 2 years from the date of his release from prison on condition that during the said period of suspension, the Defendant is to:
  4. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison term.
  5. Pursuant to s 119 of the Criminal Offences Act, it is ordered that the identity of the Victim 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 KC
30 June 2023
LORD CHIEF JUSTICE

[1] CR 593-596/2012
[2] CR 51/2013
[3] CR 221/2012
[4] CR 284, 285/2014
[5] Unreported, Supreme Court, CR 128 & 129 of 2018, 4 December 2018, Cato J.
[6] Ibid [14].
[7] Unreported, Supreme Court, CR 169 of 2019, 18 December 2019, Cato J.
[8] R v T’ui [2020] TOSC 54.
[9] R v Afeaki [2020] TOSC 4.
[10] Citing R v Langi [2013] TOSC 21 at [8].
[11] [2023] TOSC 29.
[12] Moala v R [2022] TOCA 14.
[13] [2021] TOCA 5.
[14] Hokafonu v R [2003] TOCA 3 at [51].
[15] [1998] TLR 154.
[16] See, eg, R v Fonokalafi [2022] TOSC 92 at [38].

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