R v 'Alifeleti [2023] TOSC 35; CR 110 of 2022 (19 April 2023)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 110 of 2022

REX

-v-

‘OFA ‘ALIFELETI

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN KC

Appearances: Mr J. Lutui DPP for the Prosecution

Mr A. Pouvalu for the Accused

Date: 19 April 2023

Charges

1. The Defendant appears for sentencing on the following counts:
   • (a) serious indecent assault contrary to ss 124(3) of the Criminal Offences Act; and
   • (b) using a service to abuse and cause harm by posting an electronic communication contrary to s. 4 of the Electronic Communication Abuse Offences Act 2020.

Offending

2. The Complainant is a 24-year-old female from Pangaimotu, Vava’u.
3. On 1 July 2022, the Defendant asked the Complainant out for drinks that night with his friend, Sioeli. The Complainant agreed and told him that she, and her friend, Fifita, would join them.
4. At approximately 7 pm, the Complainant met with Fifita, and waited for the Defendant at the Pangaimotu Mormon Church. At approximately 9 pm, the Defendant picked up the Complainant and Fifita from the Church and joined Sioeli for drinks at his residence in Leimatu’a.
5. Sioeli later left to sleep while the Defendant, Complainant and Fifita continued drinking. At approximately 4 a.m., all three went to Fifita’s residence at Vaipua to get her some clothes. When they reached the residence, the Complainant and Fifita got out while the Defendant remained in the vehicle. The Complainant left her phone inside the vehicle. Whilst she and Fifita were inside, the Complainant’s phone rang. It was a call from one Vili Makatu’u. The Defendant did not answer it but he returned the call to Vili moments later. When Vili answered, the Defendant asked him who he was. Vili told him that he simply called a wrong number and hung up.
6. When the Complainant and Fifita returned to the vehicle, the Defendant punched the Complainant in her ear and told her that he had told her not to give her phone number to anyone else. He then continued punching her. Fifita intervened and stopped the Defendant. They then returned to Sioeli’s residence.
7. When they arrived, the Defendant dragged the Complainant out of the vehicle, hit her head with a stick, then put her back in his vehicle and took her to his residence. When they arrived, the Defendant dragged the Complainant out of the vehicle. He grabbed a piece of timber and tried to hit her head again, but she blocked the blow with her arm. The Defendant tried again and landed that blow on the Complainant’s head rendering her unconscious.
8. The Defendant then splattered water on the Complainant’s face to wake her up. When she came to, she could not move her right arm.
9. The Defendant then read through the Complainant’s Facebook messages on her phone and told her that he would take naked photographs of her and send them to her Facebook friends. He then pulled up her top, grabbed her breasts and took photographs of her. He then took off her pants and underwear, forced her to her knees, inserted his fingers into her vagina and took photographs of him doing so.
10. At approximately 11 a.m., Vili Makatu’u received a Facebook message from the Complainant’s Facebook account. The message read: “Asshole, I am still having sex with my boyfriend” and was accompanied by the photographs.
11. The Defendant then took the Complainant into his house and left her inside his room. He threatened that if she escaped, he would find her and shoot her with his gun. He then went to town.
12. After the Defendant left, the Complainant found her phone in the living room. She sent messages to her Aunt, asking her to call. The Aunt later called, and the Complainant explained what had happened, and asked her to call the Police.
13. The Defendant returned to his house and stayed with the Complainant in his room. That afternoon, the Aunt came with the Police. The Police knocked on the door but the Defendant did not respond. He remained in his room and strangled the Complainant to prevent her calling for help. The Police continued knocking and calling for the Defendant. He eventually came to the door. When the Police asked for the Complainant, he told them that she had already left. When the Police asked if they could enter to check for themselves, the Defendant asked whether they had authority to do so. The Police said they did and the Defendant then told them that the Complainant was in his room.
14. The Defendant was arrested and the Complainant was taken to hospital. She sustained swelling over her scalp, a bruise to her right eye, and a fracture to her left forearm. When interviewed, the Defendant chose to remain silent.
15. The Defendant was originally charged with, and pleaded not guilty to, [1] causing serious bodily harm; [2] serious indecent assault; [3] using a service to abuse and cause harm by posting an electronic communication; and [4] unlawful imprisonment.
16. At the commencement of his trial in Vava'u on 13 March 2023, the Defendant was rearraigned, whereupon he pleaded guilty to counts 2 and 3 and not guilty to counts 1 and 4. The Crown accepted the guilty pleas in discharge of the indictment.

Crown’s submissions

17. The Crown submits the following as aggravating features of the offending:
    • (a) the Defendant was intoxicated;
    • (b) unlike typical sexual offences, the indecent assaults were “not committed to fulfil a sexual desire, but instead to unleash hate, and pure harm to the Victim”;
    • (c) which “highly demoralised the Victim and her family”;
    • (d) there was some degree of trust invested in the Defendant;
    • (e) the Defendant did not cooperate with the Police and he initially refused to surrender the Victim to the Police when confronted.
18. The Crown submits the following as mitigating factors:
    • (a) guilty pleas;
    • (b) no previous convictions;
    • (c) the Defendant apologised to the Victim; and
    • (d) he attempted to apologise to her family on the day he pleaded guilty, but it was not accepted.
19. The Crown refers to the following comparable sentences:
    • (a) Pulotu (CR 232/2019) - The defendant and complainant were friends. While they were at a drink up, the complainant fell asleep. The defendant sucked her breast and inserted his fingers into her vagina. He was convicted after trial of two counts of serious indecent assault. For inserting his fingers into the complainant’s vagina, a starting point of 2 ½ years imprisonment was set and 2 years for sucking the complainant’s breast. Both were then reduced by six months for mitigation. The final twelve months of the head sentence was suspended on conditions.
    • (b) Police v Afimeimo’unga Hola (CRS 475-476/2021) - The defendant incited violence against them on a Facebook live feed by telling his audience that the complainants, who were foreign business owners, were the major drug suppliers in Tonga. He was convicted after trial of two charges of using a service to abuse and cause harm by posting an electronic communication. The Magistrates Court was referred to the decision in New Zealand Police v Spencer Stephens [2019] NZDC 2013, where the defendant pleaded guilty to posting a digital communication with intent to cause harm and causing serious emotional distress, contrary to s 22 of the Harmful Digital Communications Act (NZ) 2015, which provides for maximum penalties of two years imprisonment or a $50,000 fine. The defendant posted a demoralising message about his ex-girlfriend on Facebook, in which he also identified her full name, residence and work address to put her at risk. In that case, a starting point of four months’ imprisonment was set. For Hola, a starting point of nine months’ imprisonment was set. Six months were added for aggravating features and four months deducted for mitigation resulting in a sentence of 11 months imprisonment which was fully suspended for two years on conditions including 70 hours community service.
20. The Crown submits the following as an appropriate sentencing formulation:
    • (a) the head sentence is count 2 for which the starting point should be three years imprisonment as the offending here - for the sole purpose of demoralizing and shaming the Victim - is more serious than that in Pulotu;
    • (b) reduced for the guilty plea, previous good record, apology (and attempted apology) by a total of nine months, resulting in a head sentence of two years and three months’ imprisonment;
    • (c) for count 3, where the demoralising nature of the communication and its emotional harm to the Victim’s family is more serious than in Hola, the appropriate starting point is twelve months imprisonment;
    • (d) reduced by three months for mitigation, resulting in a sentence of nine months’ imprisonment, to be served concurrently with the sentence for count 2; and
    • (e) because the offending is too serious for a fully suspended sentence, which would send a wrong message in terms of denunciation and deterrence, only the final three months of the sentence should be suspended.

Presentence report

21. The Defendant is 32 years of age. He is the youngest in six siblings. His father worked as a fisherman and farmer while his mother took care of the children and occasionally provided financial support through sales of her woven goods. Both parents have since passed away. He was educated to Form 4 but was uninterested in school and preferred instead to follow in his father's footsteps. The Defendant’s siblings have all moved away. He remained in the family home alone. Recently, one of his sisters returned from Tongatapu with her son.
22. The Defendant earns income from selling crops and kava grown on his plantation. He helps support his sister and nephew.
23. The Leimatu'a Town Officer described the Defendant as an introverted loner who, much like the other males in his family, does not participate in community activities or attend faikava gatherings where he could socialize with people his age.
24. In relation to the offending, the Defendant told the probation officer that the victim was, in fact, his de-facto partner. She and her two young children from her previous marriage moved in and lived with the Defendant in his home. Since last year, the two had been inseparable. The Defendant’s sister corroborated her brother’s account. He spent significant amounts of money on them because he loved them, and he believed she loved him. When the Covid lockdown restrictions were lifted, the victim's family arrived and took her and her children back. She and the Defendant planned to meet secretly. But on the day of the offending, they planned to meet for a drink. That is when he discovered that the victim has ‘playing him’ by also having an affair with a man from her neighbour's family. The Defendant became furious, but then remembered that they were not married. So, he continued to drink, and when he was intoxicated, jealousy got the better of him. When he confronted the victim, she told him repeatedly that she loved him. According to the Defendant, and in relation to count 3, it was the victim who told him to photograph her, post the images and send them to the man with whom she was having an affair to assure the Defendant that she loved him.
25. The Defendant stated that after he was charged, the victim continued to call him, asked for money and other items, and even went to his lawyer and agreed to drop the charges.
26. According to the probation officer, the Defendant expressed deep remorse for his actions. He described himself as having been ‘blinded by love’ and the offending as occurring ‘in the heat of the moment’. Despite what has happened, the Defendant does not regret his relationship with the victim because he deeply loved her.
27. According to the Defendant’s former girlfriend, the offending is out of character because he always treated her with respect during their relationship.
28. The Defendant’s sister described him as a good man. She hopes that whatever sentence he receives will be a lesson learned because she knew the victim well and is horrified at how she repaid them for the love they showed her and her children.
29. The probation officer described the Defendant as:
    • (a) when confronted by his partner’s apparent betrayal, as lacking sufficient maturity ‘to deal with it like a man’;
    • (b) instead acting under the influence of intoxication with ‘a sense of ownership towards the victim’; and
    • (c) ‘not a high-risk to the community’.
30. She opines that proper rehabilitation will help the Defendant mature mentally and emotionally. On that basis, she recommends a partly suspended sentence on conditions.

Defendant’s submissions

31. In addition to the Defendant's personal circumstances and remorse identified in the pre-sentence report, Mr Pouvalu, counsel for the Defendant, submitted, in summary:
    • (a) The Defendant apologised to the victim which she accepted.
    • (b) On 19 August 2022, the parties filed an application in the Vava'u Magistrates Court requesting that the charges be ‘cancelled’ as the Defendant and Complainant had reconciled.
    • (c) On 14 September 2022, the parties signed an agreement whereby the Defendant paid the Complainant $1,000 in exchange for her dropping the charges.
    • (d) However, the Magistrate refused the application to cancel the charges because the Complainant's family did not agree.
    • (e) The Defendant has since made attempts to apologise to the victim’s mother and her family but they were not accepted.
    • (f) The Defendant’s obligations as the breadwinner for his sister and her son and to the church and his village will be affected if he is imprisoned.
    • (g) It will also be very difficult for the Defendant to find a life partner if he is imprisoned.
    • (h) According to his record of interview [and contrary to the summary of facts and Crown’s submissions], the Defendant did co-operate with the police investigation.
    • (i) The Defendant has no previous convictions.
32. In addition to the comparable sentences referred to by the Crown, Mr Pouvalu referred to Soafa [2016] TOSC 19, where the defendant was sentenced to 18 months’ imprisonment for serious indecent assault after he touched the victim’s vagina without her consent and she did not later accept his apology.
33. In relation to suspension, Mr Pouvalu submitted that the Defendant fulfils all the criteria discussed in Mo’unga v R [1998] Tonga LR 154.
34. Letters of support have been provided from the Salvation Army and the Defendant’s town officer, which I have considered.
35. For those reasons, Mr Pouvalu submits that any sentence should be fully suspended to allow time for the Defendant to ‘reform his life’ and ‘become a more responsible person and an active citizen again’.

Starting points

36. It appears common ground that the head count is count 2, serious indecent assault.
37. The maximum statutory penalty for serious indecent assault is 5 years imprisonment. I agree with the Crown that the offending here is more serious than that in Pulotu, where the parties were friends and the defendant touched the complainant in an act of alcohol induced, opportunistic and misguided affection. It is also far more serious than in Soafa. Here, and particularly when viewed in the context of all the events on the night in question, the Defendant acted in a deplorable manner. He assaulted and abused the complainant, with whom he was in a relationship, for the clear purpose of punishing and humiliating her.
38. For those reasons, I set a starting point of 3 years imprisonment.
39. This is the first case in the Supreme Court for an offence under the recently enacted Electronic Communication Abuse Offences Act. Section 4 provides:

4 Using a service to abuse and cause harm by posting an electronic communication

(1) A person shall not, either with intent, or with reckless disregard as to the consequences -

(a) abuse another person using an electronic communication; and

(b) as a result, cause harm to that person, or any other person.

(2) Any person that contravenes sub-section (1) shall be guilty of a serious offence and shall be liable on conviction to a fine not exceeding $10,000, or imprisonment not exceeding 3 years, or both.

40. Section 2 of the Act defines “post an electronic communication” as including the posting of an intimate visual recording of a person. ‘Abuse’ is defined as being an electronic communication that contains bullying, menacing, harassing, harmful, indecent, and such other material which in the determination of the Court would cause harm to a reasonable person in that person’s situation. For the purposes of the Act, such electronic communications can be heard, seen, or otherwise perceived by any number of persons in Tonga whether publicly or not. ‘Harm’ is defined as including, relevantly, any emotional harm, or mental distress that is more than trivial, caused to a reasonable person in that person’s situation; or any fear caused to a reasonable person in that person’s situation about his or her safety or wellbeing, or being caused to believe that violence will be used against them; or any fear of losing, or actual deprivation, of freedom, liberty and movement, caused to a reasonable person in that person’s situation; or provoking, instigating or encouraging hate, ridicule or violence to be carried upon another person.
41. The sexually explicit and degrading nature of the Defendant’s post here cannot readily be compared to the offending in Hola. It is worse though than that in Stephens where the New Zealand legislation carries a lower maximum penalty of imprisonment. There can be no doubt that the indecent message here constituted abuse of the victim and caused her harm as those terms are defined. While the victim is said to have forgiven the Defendant, the fact that her family opposed the parties’ misguided attempt to have the charges dropped (for $1,000) and that they have as yet refused to forgive the Defendant is testament to the depth and breadth of that harm. A complete reading of the Tongan Act clearly indicates that the offending here is precisely the type of mischief the legislation is intended to prevent and punish. In my view, the offending is also toward the upper end of the conceivable spectrum of seriousness for offending of this kind. Had the post been viewed by more people, the harm would have been far greater and longer lasting. The penalty too would have been greater.
42. For those reasons, I set a starting point of 18 months’ imprisonment.

Mitigation

43. For the Defendant’s belated guilty pleas (which obviated the victim having to give evidence and relive the ordeal in court), good previous record and compensation paid to the victim (albeit on the naïve premise that the payment would result in the cancellation of the charges), I reduce those starting points by one third to:
    • (a) serious indecent assault - 2 years imprisonment; and
    • (b) using a service to abuse and cause harm by posting an electronic communication – 12 months’ imprisonment.

Totality

44. Having fixed sentences for each offence, I must now consider whether the two sentences should be served concurrently or cumulatively (in whole or in part).^[1] Ordinarily, cumulative sentences should only be imposed if the offences are viewed as separate crimes^[2] or are unrelated.^[3] The question involves two issues: firstly, whether the offences are so closely connected that they should be regarded as part of the one course of criminal activity; and secondly, whether in any event, the totality principle requires the sentences to be made, wholly or partially, concurrent.^[4]
45. The Crown submitted, without express analysis of the above questions, that the sentences be served concurrently. The Defence submissions did not address the point at all.
46. In my view, the questions may be answered as follows. The Defendant’s serious indecent assault of the victim occurred in a private setting. However, his subsequent decision to photograph that offending and send those images with the degrading message to another moved the indecency into a more public setting. With that, the degree and nature of the harm inflicted was cruelly and unnecessarily amplified. When viewed through that prism, the significant differences in intention, conduct and harm require the offences to be treated as separate crimes.
47. Further, to order the sentence for the posting to be served wholly concurrently with the head sentence for serious indecent assault would have the effect of subsuming and thereby neutralising the purport of the new offence.
48. Accordingly, even though the offences were temporally proximate, their disparate nature and the superadded harm caused by the posting requires partial cumulation to reflect the totality of the offending. It is also necessary to adequately achieve the sentencing objectives of punishment, denunciation, protection of the community and deterrence.
49. For those reasons, I order that six months of the sentence for count 3 be added to the sentence for count 2 making an aggregate sentence of 2½ years imprisonment.

Suspension

50. Application of the considerations in Mo’unga v R [1998] Tonga LR 154 favour some suspension. While the Defendant is not particularly young, he has a good previous record. He did not fully co-operate with the authorities but there is some diminution in culpability, not by reason of his intoxication at the time, but by reason of the victim apparently having a relationship with another man while she was also apparently still in a relationship with the Defendant. While that is by no means an excuse for the Defendant’s appalling conduct, it does provide some explanation and context.
51. Mr Pouvalu’s submission for full suspension based on the so-called breadwinner plea cannot, on its own, be accepted for the reasons repeatedly explained by this court and the Court of Appeal.^[5]
52. The offending was clearly the product of intoxicated, emotional immaturity and anger at the seeming revelation that his girlfriend was seeing another. I accept that the offending was out of character and that the Defendant’s remorse and acceptance of responsibility suggest good prospects for rehabilitation.
53. For those reasons, it is appropriate to suspend part of the sentence.

Result

54. The Defendant is convicted of:
    • (a) serious indecent assault and is sentenced to 2 years imprisonment; and
    • (b) using a service to abuse and cause harm by posting an electronic communication and is sentenced to 1 year imprisonment.
55. To reflect the totality of the offending, six months of the second sentence is to be added to the first, with the balance being served concurrently, making an aggregate sentence of 2½ years imprisonment.
56. The final 12 months of the sentence is to be suspended for a period of 2 years from the date of the Defendant’s release from prison on condition that he:
    • (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 thereafter as directed by his probation officer; and
    • (d) complete courses in alcohol awareness, life skills and anger management as directed by his probation officer.
57. 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.

NUKU’ALOFA	M. H. Whitten KC
19 April 2023	LORD CHIEF JUSTICE

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^[1] Valikoula v R [2021] TOCA 5
^[2] Kolo v Rex [2006] TOCA 5 at [11], citing Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624.
^[3] Hokafonu v Rex [2003] TOCA 3 at [51].
^[4] R v Langi [2022] TOSC 88 citing R v Selupe [2021] TOSC 47 and R v 'Asa [2020] TOSC 72.
^[5] E.g. see R v Motulalo [2000] Tonga LR 311 at 314, Rex v Vake [2012] TOCA 7, R v Wolfgramm [2020] TOSC 78, Police v De Feng Mo [2022] TOSC 81 and R v Fonokalafi [2022] TOSC 92.