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R v Latu [2023] TOSC 40; CR 125 of 2022 (26 July 2023)

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


CR 125 of 2022

REX
-v-
TU’A LATU


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mrs E. Lui for the Prosecution
The Defendant in person
Date: 26 July 2023


The charges

  1. The Defendant was charged with eight counts of indecent assault on children under the age of 12, contrary to ss 125(1) of the Criminal Offences Act.
  2. Upon his initial arraignment on 7 December 2022, the Defendant pleaded not guilty to counts 1 to 4 and 8, and guilty to counts 5 to 7. The trial of the contested charges was listed to commence on 12 June 2023.
  3. At the commencement of his trial on 12 June 2023, the Defendant changed his plea to guilty on all counts.

The offending

  1. The First Complainant is a 12-year-old girl who resided in Tofoa, near the Defendant. She was close friends with the Second and Third Complainants, who are two of the Defendant’s granddaughters.
  2. Count 1: In June or July 2021, at his residence in Tofoa, the Defendant touched the First Complainant’s breast. He then removed her shirt and sucked her breast.
  3. Count 2: In August 2021, the First Complainant and her younger brother were at the Defendant’s shop. He asked her to go into his home and get his wallet. She went into the house while her brother waited for her on the road. While she was inside, the Defendant walked in and closed the door behind him. He then touched her breast and tried to remove her clothes. She got away and ran out of the house.
  4. Count 3: In July 2022, the First Complainant was watching television with the Third Complainant and her younger brothers in the Defendant’s living room. The Defendant walked by and touched the First Complainant’s left breast outside her shirt, then walked off and sat in the kitchen.
  5. The Second Complainant is a 9-year-old girl, and as noted above, one of the Defendant’s granddaughters.
  6. Count 4: On a number of occasions between late December 2021 and early January 2022, at his residence, the Defendant touched the Second Complainant’s breast and vagina inside her clothing.
  7. The Third Complainant is an 11-year-old girl and another granddaughter of the Defendant.
  8. Count 5: In May 2022, the Defendant and the Third Complainant were driving back to Tofoa when the Defendant reached inside her shirt and touched her breast. She told him to stop but he continued. He then reached inside her underwear and touched her vagina. He only stopped when they arrived at Hauloto to drop off items at a cousin’s home. When they resumed driving, the Defendant again touched the Third Complainant’s vagina until they reached Tofoa. He then gave her $100 and told her not to tell anyone.
  9. Count 6: On 20 July 2022, again while driving back to Tofoa, the Defendant touched the Third Complainant’s vagina.
  10. Count 7: That same night, the Third Complainant entered the Defendant’s room where he again touched her vagina. Afterwards, he told her to leave in case her mother woke up and found out.
  11. Count 8: Later that same night, the Third Complainant was sleeping in the living room when she was awoken by the Defendant licking her vagina. He stopped and she ran to another room where her mother was sleeping.
  12. On 26 July 2022, the three Complainants told the Second and Third Complainants’ mother what the Defendant had done to them and about money he had giving each of them. A complaint was made to Police and the Defendant was arrested later that day. When questioned, the Defendant admitted the offending in respect of the Third Complainant but denied any offending in relation to the First or Second. He otherwise cooperated, to that limited extent, with the Police investigation and participated in a reconstruction of that offending at the scene.

Prosecution submissions

  1. The Crown submits that the aggravating features of the offending are the seriousness of the offending, the age disparity, the Defendant’s gross breach of trust, some premeditation, the offending occurred on more than one occasion for each victim, the offending occurred at the Second and Third Victim’s home, the innocent victims were at a vulnerable age of which the Defendant took advantage, and the Defendant has not shown remorse by apologising to the victims.
  2. The mitigating features are submitted as the Defendant is a first offender, his early guilty plea, his advanced age, and his previous service to the church.
  3. The Crown refers to the following comparable sentences:
  4. The Crown submits the following as an appropriate sentencing formulation:

Victim impact report

  1. The grandmother of the First Victim reported that she is doing well in school and is receiving support and encouragement with her studies. They have not noticed any changes in her attitude at home. Even though the Defendant has not apologised, their family has forgiven him.
  2. The mother of the Second and Third Victims reported that prior to the offending, her husband, the father of those Victims and one of the Defendant’s sons, left her and their children and went overseas. The mother and children moved from ‘Eua to live with the Defendant at his residence in Tofoa because he was elderly and alone. The Defendant was remarried but his second wife had left him. After the offending was reported, they moved to another residence at Tofoa, because her husband’s family did not want them to stay with the Defendant.
  3. Since the offending, the mother has not been on good terms with her husband’s family who wanted him to divorce her. However, when he heard about the complaint, the husband returned to Tonga after 7 years. They have now reconciled and live happily with their children at Ha’ateiho.
  4. The Second Victim is in class 5 and the Third Victim is in Form 1. They are both doing well in school. The Second Victim is a fast learner and active at school. The Third Victim is quieter but showing good improvement in her schoolwork.
  5. The Second Victim is said to be on “good terms” with the Defendant because when she lodged her complaint, he told her he would plead guilty. She felt sorry for him as he is elderly but she understands that the offending is serious. Even though the Defendant has not apologised, the Second Victim has forgiven him.
  6. The attitude of the Third Victim is said to have changed in that while she was of a quiet disposition prior to the offending, she is now seeking attention when boys are around. According to the Doctor who examined them, victims of sexual assault often develop new attitudes because of what they experienced.

Presentence report

  1. The Defendant is 77 years of age. He is the second eldest and the only male of his parent’s four children. He had a stable upbringing in Ha’apai and was spoiled by his parents. He is now the only surviving member of his family.
  2. In 1979, the Defendant entered Sia’atoutai Theological College and completed his studies in 1981. After graduating, the Defendant started working in the Free Wesleyan Church school system as a tutor and carpenter at Tupou College Toloa and Sia’atoutai. He then served as a missionary in villages throughout Tonga and for a few years in Fiji until his retirement in 2015.
  3. In 1966, the Defendant married Siokapesi. They had six children. Siokapesi died in 2005.
  4. In addition to the information she gave for the victim impact report above, the mother of the Second Third Victims told the Probation Officer that she remembered two occasions when one of her daughters told her that the Defendant had done “something bad” to her, but she paid no attention. In 2016, she became aware that the Defendant had sexually abused two of her own granddaughters (aged 5 and 6) from her previous relationship. She did not report the matter. Elsewhere in the presentence report, the mother alleged that one of the Defendant’s in-laws, who is living abroad, told her that the Defendant had done the same thing to her daughter, another of the Defendant’s granddaughters.
  5. After the Defendant was charged with the present offending, but before her husband returned, the mother moved with her children to a different house at Tofoa. Since then, she has experienced difficulties in her relationships with her in-laws and her husband, who, she said, blamed her and her daughters for making up stories and lying about the Defendant to ruin their family’s reputation.
  6. Notwithstanding all that has happened, the parents of the Second and Third Victims have continued to visit and assist the Defendant with food and other necessities. The Defendant also receives $600 per month from rent of a shop in his front yard and remittances from his relatives abroad.
  7. In 2007, the Defendant married ‘Ana. They have no children. ‘Ana reported that after they married, the Defendant told her that, before Siokapesi died, he engaged in extra-marital affairs during his missionary work but did not report them to anyone including to the church authorities. ‘Ana told him repeatedly that he should resign immediately from his role and position as a Minister because his continued preaching was hypocritical, unacceptable and a breach and distortion of the Christian faith and principles. However, the Defendant refused to resign and continued in the Ministry until 2013 when he applied for resignation due to ill health. After his resignation, the Defendant maintained his religious authority as a Retired Minister. ‘Ana said she was not surprised when she heard about this case and it was not a difficult decision for her to end their marriage. She described what happened as sad for the innocent children and regarded the Defendant as having misused his authority and religious status for his own sexual favours.
  8. The Probation Officer noted that during his first two interviews with the Defendant, no mention was made of him being married to ‘Ana. Later, he said he “forgot”. He also denied ‘Ana’s other statements about him.
  9. In 2022, after this case was reported, a major conference of the Church demoted the Defendant from the position of Retired Minister to a normal member of the Church. However, according to Rev. Penisoni Pau’uvale, despite the offending, the Defendant is regarded as a devoted, committed and hardworking member within the Church, its school system and with spiritual leaders. The Town Officer and other members of the Defendant’s community, including Mele Folau, who have known the Defendant for many years, also acknowledged him as a “good and reliable person”. Letters of support have been filed from Rev. Pau’uvale and Mr Semisi Vea, which I have considered.
  10. A similar view was expressed by Rev. Semisi Kava who has known the Defendant through their religious backgrounds, being neighbours at Tofoa, and being blood related. However, Rev. Kava also told the Probation Officer that a leading member of the Koheleti FWC of Tofoa told him of some women and girls who also reported having been sexually abused by the Defendant. Rev. Kava visited the Defendant when he was remanded in custody during which the Defendant admitted the present offending and his previous unreported sexual abuses.
  11. In relation to the instant case, the Defendant admitted his offending to the Probation Officer and said that he fully accepted the summary of facts. However, he then went on to blame the victims for his offending. He asserted that they used to come to his room and lie with him on his bed and then ask him to do what he did to them “because they liked it”. When asked how he could have committed these offences on his own granddaugthers, the Defendant said that when he was alone with them, he could “not control the evil when he feels sexually aroused”.
  12. The Defendant expressed regret for the offending and “putting a curse on his family and their reputation”.
  13. The Defendant is in ill-health. According to a medical report by Dr Titania Peti dated 1 May 2023, he is suffering from diabetes, hypertension, ischemic heart disease, chronic obstructive pulmonary disease, chronic kidney disease, and reduced mobility following a history of lower spinal surgery. He is currently taking several medications. He is described as compliant with his diet, lifestyle, medication and appointments, and despite his multiple comorbidities, has shown a commitment for better control. As a result, the doctor opined, the Defendant is able to delay the progression of his conditions.
  14. In the Probation Officer’s assessment:
  15. Arrangements have been made with Rev. Semisi Kava, as the Prison Chaplain, for managing the Defendant’s health conditions, including professional treatment, if he is imprisoned.
  16. The Probation Officer recommends a partly suspended imprisonment sentence on the usual conditions plus abstaining from contact with children.

Starting points

  1. The statutory maximum penalty for indecent assault of a child under the age of 12 is 7 years imprisonment.[2]
  2. In R v Fifita [2023] TOSC 29, the paramount sentencing considerations for crimes of serious sexual abuse were described as:
“[26] ... 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].[3] 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).”[4]
  1. Apart from the obvious circumstances of aggravation in this case such as the number of victims, the protracted period over which the offending took place, the large age difference between the Defendant and the victims, his blood relations with two of them, his gross breaches of trust, being a former member of the clergy and his failure to date to have apologised to any of the victims or their families, perhaps the most disturbing feature is the Defendant’s reprehensible attempt to blame the young victims for his offending. As stated recently in R v Tulumi [2023] TOSC 33:
“[42] ... 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.
[43] 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.”
  1. While the actual nature of the offending in terms of the touching of the First and Second Victims might be seen to lie within the low to moderate range for offending of this kind, the Defendant’s sustained preying on these three young girls to feed his own sexual depravities was truly deplorable.
  2. The offending here is far more serious than that in Tu’imotuliki. Section 198(1) of the Criminal Offences Act provides for good behaviour bonds to be imposed where the Court is of the opinion, having regard to the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed, it is expedient to release the offender on probation, the Court may make an order discharging the offender conditionally on his entering into a recognizance with or without sureties to be of good behaviour and to appear for sentence when called upon at any time during such period not exceeding 3 years as may be specified in the order. In my opinion, and notwithstanding the Defendant’s antecedents, age and ill health, s 198 is not intended to be engaged as an appropriate response to offending as serious as the present. Accordingly, Tu’imotuliki is highly distinguishable from the present case and should be confined to its facts.
  3. I agree with the Prosecution that the head count is count 8. Having regard to the seriousness of the offending, the statutory maximum penalties, the Crown’s submissions and comparable sentences referred to, and the escalation inherent in that last indecent assault, I set a primary starting point for count 8 of 3 years imprisonment. However, that will be increased to 4 years to reflect the overall circumstances of aggravation.
  4. For each of counts 1 to 3, the least serious of the offending, I set starting points of 2 years imprisonment each. For counts 4 and 5, where the Defendant touched those victims’ vaginas inside their clothing, I set starting points of 2 ½ years. For counts 6 and 7, where the summary of facts does not specify whether the touching occurred inside the victim’s clothing, I set starting points of 2 years.

Mitigation

  1. For the Defendant’s good previous record and guilty pleas, thereby sparing the victims (and other witnesses) the ordeal of having to give evidence at trial and the State’s limited court and Prosecution resources, I reduce the starting points by 30%.
  2. Further, for the reasons explained by the Court of Appeal in Selino Latu v Rex [2014] TOCA 9,[5] it is also appropriate to make some allowance in mitigation for the Defendant’s advanced age, his previous missionary service to the community and his significant health conditions. Accordingly, I increase that discount to 40%.
  3. The resulting sentences, therefore, are counts 1 to 3: 14 months; counts 4 and 5: 18 months; counts 6 and 7: 14 months; and count 8: 28 months.

Cumulative or concurrent

  1. In light of the number of offences and victims, and the period over which the offending occurred, it is necessary to consider whether, subject to the totality principle, the sentences should be served concurrently or cumulatively (in whole or in part).
  2. As noted in the Prosecution’s submissions, the approach to be taken was recently discussed by the Court of Appeal in Attorney General v Toki [2023] TOCA 4,[6] and may be transposed into the following questions or propositions:
  3. Ordinarily, cumulative sentences should only be imposed for offences that are unrelated: Valikoula v R [2021] TOCA 5 at [39].[7] Here, the offending was disconnected or unrelated insofar as it involved three victims, each indecently dealt with in different ways, at different times and places and over a period of approximately one year. However, full cumulation of all eight sentences (10 years and 9 months) would result in a ‘crushing’ first period of imprisonment and would risk placing the Defendant where "hope [can] never come [t]hat comes to all": Kolo v Rex [2006] TOCA 5. It would also be out of all proportion to the totality of the criminality of the offending and the statutory maximum penalty.
  4. As the Court concluded in Toki, there may be circumstances in a given case which justify partial cumulation. In my view, the better answer to the questions posed above is that the offending in respect of each victim was related and could be regarded as a continuing course of criminal conduct in respect of each but not across all three. Therefore, partial cumulation is warranted.
  5. In deciding the measure of cumulation, I take into account that even though the First Victim was subjected to three indecent assaults, the nature of the touching on those occasions was not as serious as the single touching of the Second Victim, with the Third Victim sustaining the worst. Therefore, I will order that the sentences for each victim are to be served concurrently but that 7 months of the sentences in respect of the First Victim and 9 months of the sentence in respect of the Second Victim are to be added to the head sentence for the Third Victim. That makes a total aggregate sentence of 3 years and 8 months (or 44 months) imprisonment. In my view, that result appropriately reflects the totality of the criminality demonstrated here, in all the circumstances.

Suspension

  1. The considerations discussed in Mo’unga [1998] Tonga LR 154 at 157 produce a mixed result. While the Defendant is not young, he has had no previous criminal convictions over a long life. He partially cooperated with police and eventually pleaded guilty to all counts. However, there was clearly an element of premeditation in the offending, and I have rejected any suggestion that the Defendant’s culpability should be diminished by his hapless assertions of provocation by the very young victims. The Defendant’s failure to apologise to the victims and their families does not reflect well on his assertions of remorse or genuine acceptance of responsibility, which in turn makes difficult any assessment as to whether the Defendant is likely to take the opportunity afforded by suspension for reform. In a similar vein, the Probation Officer’s assessment of the Defendant posing a high risk to the community also weighs against suspension.
  2. Even though allowance has already been made for the Defendant’s previous missionary and other liturgical service, it is appropriate, in my view, to also consider those matters on the question of suspension. The value to be ascribed to that service, in this part of the analysis, presents something of a two-edged sword. On the one hand, the Defendant’s work may be regarded as a significant contribution to the spiritual wellbeing of those whom he served. On the other hand, the Defendant’s esteemed position brought it with an enormous responsibility to maintain the trust of his ‘flock’ through his pastoral care and what ought to have been his own impeccable behaviour and example. That responsibility and those standards did not end upon his retirement. By succumbing to his own lust and depravedly taking advantage of his young granddaughters and their friend, the Defendant fell execrably below the standards expected of a man of the cloth, and a grandparent, and has brought shame to the Church and the many other upstanding Ministers within it. His demotion within the Church, and now this sentence, mark a very sad completion to his ignominious fall from grace.
  3. It is important to note that I have not placed any weight on the other allegations of wrongdoing by the Defendant’s estranged wife or the mother of his granddaughters. He is only to be dealt with for the offending the subject of this proceeding.
  4. While the Defendant’s age and medical issues are also relevant in determining whether, and if so, to what extent, the sentence should be suspended, I take into account Rev. Kava’s assurance that appropriate measures are in place in the prison to accommodate the Defendant’s physical condition. Sections 20 to 24 of the Prisons Act also provide safeguards in that regard.
  5. After weighing up those competing considerations, I am satisfied that it is appropriate to order partial suspension.

Result

  1. The Defendant is convicted of eight counts of indecently assaulting a child under the age of 12 years and is sentenced to an aggregate term of 3 years and 8 months (or 44 months) imprisonment.
  2. The final 18 months of the sentence are to be suspended for a period of 2 years from the date of the Defendant’s release from prison, on condition that during the said period, he is to:
  3. Failure to comply with any of those conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of his prison term.
  4. Finally, pursuant to s 119 of the Criminal Offences Act, I order that the identity of the Complainants in these proceedings and any information that discloses or could reasonably lead to the disclosure of their identity shall not be printed, published, broadcasted, disseminated or disclosed in any other form to the public.



NUKU’ALOFA
M. H. Whitten KC
26 July 2023
LORD CHIEF JUSTICE

[1] Unreported, Court of Appeal, Accused 19 of 2022, 6 April 2023, Whitten LCJ, Randerson J and Harrison J.
[2] Criminal Offences Act, ss 125(1).
[3] Citing R v Langi [2013] TOSC 21 at [8].
[4] [2023] TOSC 29.
[5] At [12], applying Fa'aoso v R [1996] Tonga LR 42 at 44.
[6] At [7] and [8].
[7] Citing Hokafonu v Rex [2003] TOCA 3 at [51].

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