R v Latu [2023] TOSC 34; CR 114 of 2022 (15 June 2023)

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

CR 114 of 2022

REX
-v-
MOSESE LATU

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mrs T. Vainikolo for the Prosecution
The Defendant in person
Date: 15 June 2023

The charge

1. On 14 November 2022, the Defendant pleaded not guilty to one count of indecent assault on a child under the age of 12, contrary to ss 125(1) of the Criminal Offences Act and elected trial by judge and jury. The trial commenced on 1 May 2023 and on 3 May 2023, the jury found the Defendant guilty of the charge.

The offending

2. In October/November 2021, the Complainant was 9 years of age. The Defendant, who was 44 years of age at the time, was living with the Complainant’s uncle in a small fale at the rear of the residence of the Complainant and her family where the Complainant lived in the main house with her mother, two sisters, and grandfather.
3. On the day in question, the Complainant returned from school early after completing a test. From the main house, she saw the Defendant in the small fale signalling for her to go to him. She went down to the small fale where the Defendant told her to go into his room and lie on the bed. She complied. The Defendant then removed her tights and underwear and licked her vagina for about 10 seconds. The Complainant’s grandfather called for her. She walked back into the living room and put her pants and tights back on. When she reached the door, the Defendant handed her $10 and she returned to her grandfather.
4. At the time, the Complainant felt that what had happened “was bad”. She was afraid to tell anyone. It was not until she was questioned by a family friend, a few months later, that she disclosed what happened. Subsequently, the Complainant told her mother what had happened. On both occasions, and during the trial, the Complainant gave consistent accounts. The mother confronted the Defendant. He denied the accusation and said that the Complainant “must have been dreaming”. During the trial, there was evidence that when the mother was speaking to the Defendant, he was shaking his head at the Complainant gesturing to her not to say anything. The Complainant’s mother told the Defendant to move out and then lodged a complaint with Police. The Defendant was arrested and charged. When questioned, he chose to remain silent.
5. During the trial, the Defendant elected to give evidence. He repeated his denials. He also suggested that the Complainant had lied because he had refused to give her money and declined a request by her mother, conveyed by the Complainant, to borrow his equipment to watch videos. Evidently, the jury did not accept the Defendant’s evidence.

Crown’s submissions

6. The Crown submits the following as aggravating features of the offending:
   • (a) breach of trust;
   • (b) the seriousness of the offending, namely licking the Victim’s vagina;
   • (c) age disparity;
   • (d) lack of remorse demonstrated by a contested trial and by the Defendant’s comments in his pre-sentence report;
   • (e) the impact this will likely have on the victim in the future when she realises the seriousness of the offending; and
   • (f) the impact on the Victim’s mother (detailed further below).
7. The only mitigating feature is the Defendant’s lack of previous convictions.
8. The Crown relies on the following comparable sentences:
   • (a) Tevita Mafi Hia (unreported, Supreme Court, CR 126 of 2021, Cooper J, 3 August 2022) - The Defendant was found guilty after trial of six counts of indecent assault on his stepdaughter, two when she was under 12 years of age, and four when she was under 15. The offending involved the Defendant touching the victim’s breast and vagina (counts 1, 2, 6 and 7), and licking and touching her vagina (counts 4 - 5), rubbing his penis on her vagina, forcing her to touch his penis and ejaculating on the victim’s vagina. Cooper J treated counts 1 and 2 as the head counts. His Honour set a primary starting point of 3 years but increased it to 4 to reflect that the Defendant masturbated to ejaculation in front of the victim. For the remaining counts, Cooper J set primary starting points of 2 years but increased those to 3 years to reflect the aggravating features.
   • (b) ‘Aisea Pese Havea (unreported, Supreme Court, CR 136 of 2021, 22 April 2022, Cooper J) - The Defendant was convicted after trial of two counts of indecent assault on two children under the age of 12. He licked the vagina of his 18 month old stepdaughter and smacked his 7 year old step son and ordered him to kiss his penis while they were naked. For the younger child, a starting point of 2 years was set.
   • (c) Motuliki (unreported, Supreme Court, CR 55 of 2019, 13 June 2019, Paulsen LCJ) - The Defendant pleaded guilty to one count of indecent assault on a child under 12 years. The Victim, a 5 year old girl, was customarily adopted by the daughter of the Accused’s neighbour. The Accused pulled down the Victim’s pants and fingered and then licked her vagina. Paulsen LCJ set a starting point of 2 years imprisonment. This was discounted by 8 months for his early guilty plea, cooperation with Police and prior good record. The final 8 months of the resulting sentence of 16 months imprisonment were suspended on conditions.
9. The Crown submits the following sentencing formulation:
   • (a) a starting point of 2 to 3 years imprisonment;
   • (b) no more than 2 months off for the Defendant’s previous good character; and
   • (c) no more than 6 months suspended for his previous good character.

Family impact statement

10. The Crown submissions included a family victim report which recorded the following.
11. The Victim does not fully understand the seriousness of the offending. She is however of an age where she will not forget the indecent assault. As she grows older, she will understand the seriousness of what was done to her. She did not notice any effects of the offending on her behaviour such as her relations with others, sleeping or eating habits, or her schooling. She said the Defendant had not asked for forgiveness nor could she forgive him.
12. The Victim’s mother reported that:
    • (a) the Victim lost weight around the time of the offending and only regained it last year after she told her mother’s friend what happened;
    • (b) at times, since the offending, the Victim prefers to be alone and will often stare into oblivion, taking her a while to notice that her mother is talking to her;
    • (c) prior to the offending, the Victim was a hard worker, very social and care-free but since the offending, she has not been as active;
    • (d) the Victim’s schooling continues to be affected;
    • (e) from the beginning of 2022, the Victim would cry, scream and talk (saying ‘stop it!’) in her sleep;
    • (f) she feels that as a result of what happened to her daughter, she failed in her duty as a mother;
    • (g) she cannot ever be fully happy because when she with her daughter, she remembers what the Defendant did to her and is disgusted by what he did since he has daughters of his own;
    • (h) as a single struggling mother, she does not feel safe anymore going to work while her children are at home;
    • (i) she feels betrayed as she had sheltered the Defendant;
    • (j) while giving evidence at the trial, she felt that she was going to faint from crying and venting her feelings;
    • (k) the Defendant has not shown any remorse;
    • (l) she is not in a position to forgive him;
    • (m) she is concerned that there is serious risk the Defendant may do something worse to another.

Presentence report

13. The Defendant is now 47 years of age. He was born in Vava'u and raised by his maternal grandparents and two other first cousins. His mother emigrated to the United States when he was young and his father moved to Tongatapu. Both of his biological parents married and had children. He has no contact with his father's family but does with his mother and her other children.
14. After completing Form 5 in Ha'apai, the Defendant enrolled in Tupou College's TVET Program. After a year, he enrolled in Bible Studies at the University of the Nations and undertook disciple courses for three years.
15. In 2009, he married Soana Lolohea and they had six children now ranging in ages from 11 to 24 years. In 2014, the Defendant and Soana divorced. Soana reported that she left her husband for another man. She described the Defendant, during their 16 years of marriage, as a devoted husband and a tough and protective father, especially toward their daughters.
16. In 2018, the Defendant married Langakali Maka and moved in with her and her children from her previous marriage. The Defendant is now residing with a Pastor from Pentecost Church in Lomaiviti.
17. The Defendant has been employed as a casual construction worker.
18. The Defendant continues to deny the offending. He told the probation officer that he has “a clear conscience” and understands that the crime will result in incarceration.
19. Curiously, the report writer then stated that the Defendant “has expressed guilt and regret, but he continues to defend his honour as a brother, husband, and parent”.
20. Mr Peni Mafi, a Pentecostal Minister, has known the Defendant for over 15 years. He described the Defendant as a cheerful, faithful man of God, both before and after his trial, indicating a clear conscience. Mr Mafi has never questioned the Defendant’s character, especially in relation to this type of crime. He explained how the Defendant used to pick up his small children from school, as well as pick up and drop off church members after church activities, and that there was never any breach of trust. They still trust the Defendant and he continues to pick up their children and drop off church members.
21. The probation officer recommends a partly suspended sentence.

Starting point

22. The maximum statutory penalty for indecent assault on a child under the age of 12 is 7 years imprisonment.^[1]
23. In Viliami Simoni, Paulsen LCJ reminded that:^[2]

"This Court has recognised many times that sexual offending against children is taken particularly seriously and that the Court will respond by imposing appropriate sentences, the object of which is the protection of children from being exposed to those who would prey upon them and to deter future offending, not only by a particular offender but more generally by others who might otherwise be inclined to offend in this way."

24. Therefore, 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 ‘Asa [2020] TOSC 72 at [39].^[3]
25. In addition to the comparable sentences referred to by the Crown, I have also considered:
    • (a) Mailau [2017] TOSC 39, where a father was sentenced to 3 years imprisonment for fondling and sucking his daughter’s breasts and an act of cunnilingus;
    • (b) Hu’akau (unreported, CR 107 & 108 of 2017, 16 July 2018, Cato J), where the Defendant was found guilty after trial of multiple counts of sexual offending against his stepdaughter, who was 14 years at the time, including rape and serious indecent assault. The serious indecent assaults included acts of cunnilingus, for which he was sentenced to 3 years imprisonment; and
    • (c) Felemi [2018] TOSC 76 – where the prisoner was in a de-facto relationship with the 13-year-old victim’s mother. The offending involved licking of the victim’s vagina, fondling and sucking her breast and rubbing his penis on her vagina. Cato J set a starting point for the more serious offence of 4 ½ years.
26. The present offending is not as serious as the offending in those cases although those victims were older, and more than 12 years of age thereby attracting s 124 with a lower maximum penalty of 5 years imprisonment.
27. Of the decisions referred to by the Crown, which did involve children under 12 years, the offending here, by the nature and relatively short duration of the single act of cunnilingus, is clearly not as serious as that in Hia. While the victim here was not filially related to the Defendant, the offending is more serious than that in Havea by reason of the fact the very young victim there would have had little if any ability to understand or appreciate the moral (and legal) turpitude of what was being done to her whereas the victim here knew that it was “something bad” and, as a result, has been emotionally and psychologically impacted by the offending. The offending is closer in terms of seriousness to that in Motuliki although I consider the fact that the Defendant was living, by their generosity, at the Victim’s family residence, to constitute a greater breach of trust.
28. For those reasons, I set a starting point of 2 ½ years or 30 months imprisonment.

Mitigation

29. By reason only of the Defendant’s lack of previous convictions, I reduce that starting point by 6 months, resulting in a sentence of 2 years imprisonment.

Suspension

30. The considerations for suspension in Mo’unga [1998] Tonga LR 154 at 157 favour partial suspension.
31. The Defendant is not young, the offending has adversely affected the very young victim, it involved a likely degree of premeditation although there was no evidence of grooming as such, he did not co-operate with the authorities, and he has refused to accept responsibility for his actions or shown any remorse.
32. Against that, the Defendant has a good previous record and appears to continue to be well regarded in his church community. He also has children although his current relationship with them is unclear. At the trial, there was evidence of a number of them visiting him at the residence from time to time. Even though his continued denial of the offending is of concern, those factors provide a basis for optimism that the Defendant is likely to take the opportunity for rehabilitation afforded by a partially suspended sentence.

Result

33. The Defendant is convicted of indecent assault on a child under the age of 12 and is sentenced to 2 years imprisonment.
34. The final 8 months of the sentence are to be suspended for a period of 12 months from the date of the Defendant’s release from prison on condition that during the said period of suspension, the Defendant is to:
    • (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; and
    • (d) complete a life skills course or such other course/s as his probation officer may direct.
35. 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 sentence.
36. Pursuant to s. 119 of the Criminal Offences Act, the identity of the Victim 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 KC
15 June 2023	LORD CHIEF JUSTICE

---

^[1] Ss 125(1).

^[2] Unreported, Supreme Court, CR 137 of 2018, 7 December 2018, at [19]; cited in R v Vi [2021] TOSC 91 at [11].

^[3] Applying Langi [2013] TOSC 21 at [8]. See also Andrew J in R v Taulanga [2007] Tonga LR 102.