R v Fatafehi [2024] TOSC 106; CR 158 of 2024 (29 November 2024)

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

CR 158 of 2024

BETWEEN:
REX
-Prosecution

AND:
SIAOSI FATAFEHI
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr E Lui for the Crown Prosecution
The Accused in Person
Date: 29 November 2024

THE CHARGES

1. On 24 September 2024, the Accused pleaded guilty to the following charge:
   1. Count 1: Serious Indecent Assault, contrary to section 124(1), (2), (3) and (5) of the Criminal Offences Act.
      

CROWN SUBMISSIONS

2. The Crown tendered in Court two cases from the Court of Appeal to assist the court in determining the appropriate sentence for the Accused.
3. Mitigating and Aggravating factors were submitted along with the following caselaw:
   1. Rex v Soafa [2016 TOSC 19]
   2. Uikelotu Afeaki [Unreported, CR 208 of 2019]
   100. R v S.H [2022 TOSC 34]
4. The Crown recommends a custodial sentence and maintains their position initially submitted in their Indicative Sentencing Submission of 12 months’ imprisonment with the final 4 months suspended on conditions.
   

PRESENTENCE REPORT

5. A pre-sentence report was not submitted due the Accused not reporting the Probation Office. The Accused indicated to the Court that he would like his matter to proceed to sentencing without further delay for a Pre-Sentence Report, and I do so on that basis.
   

DEFENCE SUBMISSIONS

6. The Accused submitted to the Court his apologies for his behaviour leading up to his appearance today but also to the complainant and her family.
7. He further submitted that he has offered to pay for the school fees of the Complainant for the entire academic year of 2025 because of his remorse.
8. Based on the sentencing comparables provided in the Crown Submissions, the Accused submitted for the Court to consider the same approach in that of the case of Afeaki.
   

DISCUSSION

9. On 3 December 2023, you were in the Complainant’s family home where she was in the kitchen alone with her cousin.
10. You walked up and stood next to her stoked her left buttock then walked out of the kitchen causing her to be scared at the time.
11. The seriousness of your case is that you are 41 years old, and the Complainant was 13. You have expressed remorse by apologising to the family and making payment to the family which has been accepted.
12. I make it clear that no one in this Court can buy their way out of prison, but I accept that what you did was not with that in mind but to expiate what you had done.
13. The nearest factual similarity of the 3 cases helpfully submitted by the Prosecution is in Afeaki in which a Defendant grabbed a victim’s buttocks and breasts over her clothing. The Accused in that case pleaded guilty, was a first time offender and was sentenced to 12 months’ imprisonment fully suspended.
14. In your case, what you did was less serious, so I am prepared to sentence you to 6 months imprisonment fully suspended on conditions for 2 years.
15. That means if you commit any offence during the operation of your 2-year suspended period you will serve the 6 months for this matter together with any other offence you committed.
    

FINAL RESULT

16. For one count of serious indecent assault, I impose a sentence of 6 months imprisonment fully suspended on the following conditions:
    1. You must report to the Probation Office within 48 hours from today.
    2. You must not commit any further offence punishable by imprisonment during your suspension period.
    100. You must complete 40 hours of community service within 12 months.
    4. You must complete a course on sexual awareness by the Salvation Army at the direction of the Probation Office.
       

NUKU’ALOFA
HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
29 November 2024