R v P.U. (a pseudonym) [2024] TOSC 27; CR 26 of 2024 (9 May 2024)

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

CR 26 of 2024

BETWEEN:
REX – Prosecution

AND:
P.U. (a pseudonym) – Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Tupou Vainikolo for the Crown Prosecution
The Accused in Person

Date of Sentence: 9 May 2024

1. THE CHARGES

1. On 19 March, the Defendant plead guilty to the following charges:
   1. Count 1: Serious Housebreaking contrary to section 173(1)(b) and (5) of the Criminal Offences Act.
   2. Count 2: Serious Indecent Assault contrary to section 124(1) and (3) of the Criminal Offences Act.

2. SUMMARY OF FACTS

2. The Complainant is Kepa Hopoate, a 38-year-old female residing in Houmakelikao.
3. She is married to the Defendant’s brother, and they reside together in the same allotment but in different houses.
4. The main house is the residence of the Defendant and his mother. There is a double story house beside the main house where the Defendant’s brother, the complainant and their children live on the ground floor. The top floor of the house is rented.
5. On or about 6 October 2023, around 11pm the Complainant had just returned home from work. Her children at the time were already asleep at the main residence with their grandmother.
6. The Complainant took her youngest child with her to their house. Her daughter watched cartoons while she was surfing the internet on her phone. After a while, the phone’s battery was low and they did not have a charger, so the Complainant told her daughter for them to go to sleep. She turned off the lights, took off her trousers and went to sleep in her tights.
7. At approximately 2am, while the Complainant was sleeping, she felt something cold on her buttocks. She turned around and saw the Defendant at the end of the bed. The Defendant licked her buttocks and she kicked him on the chest causing him to fall on his back.
8. The Defendant got up and ran away. The Complainant followed and tried to chase after him, swearing at him as she continued to chase him.
9. The Complainant heard a noise as if someone jumped and fallen. She approached where she heard the noise from and saw it was the Defendant.
10. A complaint was lodged with the police by the Complainant.
11. On or about 13 October 2023, the Defendant was arrested by the Police for serious indecent assault.
12. On 17 October, the Defendant was interviewed by the Police, he cooperated and admitted to the offending.
    100. AGGRAVATING & MITIGATING FACTORS
13. The Crown submits the following as aggravating factors in this case:
    1. The seriousness of the offending
    2. Invasion of privacy, the Defendant entered the victims’ house without her consent making her feel unsafe in her own home.
    3. Breach of trust, the Defendant is the victim’s brother-in-law. His brother is married to the victim.
    4. The victim’s child was also sleeping in the room when the offending happened.
    5. The Defendant is a repeat offender and has a history of related offences.
14. The Crown submits the following as mitigating factors in this case:
    1. The Defendant’s early guilty plea
    2. The Defendant cooperated with the police.

4. PREVIOUS CONVICTIONS

15. The Defendant has previous convictions ranging from, possession of illicit drugs and drunkenness to indecent assault and theft.
    5. RELEVANT LEGISLATION
16. Section 173(5) of the Criminal Offences Act states the maximum penalty for Serious Housebreaking is 10 years imprisonment.
17. Section 124(3) of the Criminal Offences Act states the maximum penalty for Serious Indecent Assault is 5 years imprisonment.
    6. SENTENCING COMPARABLES

1. Rex v Soafa [2016] TOSC 19; CR 5 of 2016

18. The Defendant plead guilty to one count of attempted rape, one count of serious indecent assault and one count of serious housebreaking.
19. The Defendant was 18 years of age, and he was intoxicated at the time of the offending. The Defendant knocked on the door of the victim and asked to use her phone to call his mother.
20. The victim told him to leave but the Defendant attacked her and forced her to the floor and punched her face. He then, squeezed her neck, held her mouth to stop her from screaming then forced her to the ground.
21. The Defendant pulled down the victims’ pants and underwear, then tried to insert his penis into her vagina. The victim. Struggled and managed to push him away.
22. On the count of serious housebreaking, the Defendant was sentenced to 2 years to be served concurrently to the sentence of 4 years for the attempted rape charge.
    2. Rex v Vaomotou 9CR 96 of 2016, 28 October 2016)
23. The Defendant plead guilty to one count of serious housebreaking and one count of serious indecent assault.
24. The latter offence occurred late at night when then Defendant broke into the house of the victim and her husband. The Defendant went to where she was sleeping and licked her vagina.
25. The Defendant was sentenced to 3 years imprisonment for the serious indecent assault and 2 years for the serious housebreaking.
    3. Uikelotu Afeaki (Unreported, Supreme Court CR 208 of 2019, 7 February 2020)
26. The Defendant was 15 years old, and the victim was a 51-year-old New Zealand volunteer working in Tonga. The Defendant grabbed the victims’ buttocks and breasts over her clothes. The Defendant pled guilty to both counts and was a first-time offender.
27. The Defendant was sentenced to 12 months’ imprisonment, fully suspended.
    4. R v S.H (a pseudonym) [2022] TOSC 34; CR 135 of 2021
28. The Defendant pleades not guilty to three counts of serious indecent assault and one count of rape. After a contested trial, the Defendant was found guilty on the three counts of serious indecent assault and not guilty on the rape charge.
29. The Defendant is the victim’s father, and the counts of serious indecent assault were as follows: Count 1 touching of the victims bare back, buttocks and thigh, Count 2 touching her breast while trying to pull her down to bed to sleep with him and Count 3 for stroking the victims thigh and kissing her neck near the chest.
30. The following starting points were set; 20 months’ imprisonment for Count 1, 16 months’ imprisonment for Count 2, and 12-months imprisonment for Count 4. This was increased by one-third because of the breach of trust and the age disparity. It was reduced by 12.5% for his lack of previous convictions. The final sentence was 24 months for count 1, 19 months for count 2, and 14 months for count 4 The Defendant was eligible for part of his sentence to be suspended.
    7. CROWNS POSITION ON SENTENCING
31. Based on the seriousness of the offence, the cited authorities, and the aggravating features, the Crown submits that a custodial sentence should be imposed.
32. The Crown submits that Saofa and Vaomotou are similar to this case in the sense that in those cases, the Defendant entered the victims house as a trespasser and committed the indecent assaults although, the degree of the indecent assaults differ.
33. In both Afeaki and R v S.H involved touching of the buttocks, Afeaki was outside clothing and S.H was the bare buttocks. In this case it involved the Defendant licking the Defendant’s buttocks.
34. Although Vaomotou involved licking of the Defendant’s vagina, nothing in the Act indicates which of the two is more serious.
35. The Crown submits given the nature of the offending, that Count 2 (Serious Indecent Assault) should be the head sentence.
36. Starting Point: The Crown submits the 2 ½ - 3 years imprisonment is an appropriate starting point for the head sentence.
37. The Crown submits for the Defendant’s early guilty plea, 8 months should be deducted for mitigation resulting in a sentence of 22-28 months’ imprisonment.
38. According to the principles set out in Mo’unga v Rex [1998] Tonga LR 154, the Defendant is eligible for a partly suspended sentence for his cooperation with Police.
39. The Crown submits a final sentence for the Defendant as follows:
    1. Count 2 – 38 months’ imprisonment
    2. Count 1 – 24 months imprisonment to be served concurrently to Count 2
    3. The final 12 months of the head sentence is to be suspended on the condition that;
       1. The Defendant does not commit any offence punishable by imprisonment during the period of suspension,
       2. Be placed on probation,
       100. To live where directed by the probation office.
    8. VICTIM IMPACT REPORT

1. Interview with the Complainant

40. The Complainant stated she recalls the offending clearly as it was not the first time the Defendant has done something of this nature. She stated that the defendant has indecently assaulted her and her daughters before but this was the first time he had removed her clothes.
41. She recalls feeling very embarrassed on the night of the offending when she had chased after the Defendant swearing at him. She had turned around to find their neighbours standing around looking at them.
42. She still feels angry with what has happened especially since he had indecently assaulted her on previous occasions;
43. The Defendant’s presence makes them more cautious especially when it is time to shower. She and her children and the female occupants of their residence are all scared of him and will wait for him to leave the house before taking showers. This is because the bathroom is located outside of the their house;
44. They not only fear that the Defendant would peek at them but also disgusted given the nature of their relationship.
45. She genuinely fears for her safety and the safety of her children since her husband is away most of the time. They do not feel safe when the Defendant is present at the residence and do their best to always avoid him.
46. Since the offending, the complainant has moved with her daughters and now live with her parents and uncle at their house. Her husband and sons remain at the residence in Houmakelikao.
47. The Complainant feels compassion for the Defendant as he is her husband’s brother, but the offending is disgusting and does not wish to forgive him. The Defendant also shows her no respect and believes he has not learnt his lesson from previous incidents.
48. The Defendant has not apologised for his actions, she wishes she could be taught a lesson and asks that he be kept far away from their residence for as long as possible in prison so that they can sleep in peace at night. She also wishes the Defendant be enrolled in a counselling course to change his behaviour as they are greatly embarrassed by it.
49. The neighbours and their town use the offending to make fun of them. Her children are embarrassed and mocked by their peers, being called “Paueli” or “Pauli” rather than their names. Her daughters do not want to return to the residence.
50. Her husband is also enraged and embarrassed by the offending. She is concerned her husband might do something to the Defendant that would get him in trouble. If something were to happen to her husband, they would not feel safe anywhere.
51. The thought of the Defendant being free is frightening. She emphasises that they do not feel safe around the Defendant, they are unable to move freely around the residence such as taking showers and going to the bathroom.
    1. PRESENTENCE REPORT

1. Personal History

52. The Defendant is the seventh child out of nine children. His father died in 2015, all other remaining members of his family are survived. The Defendant is single and relationships at home where he grew up were reported to be good.
53. During the interview the Defendant’s mother had nothing to say but expressed her disappointment and frustration at the Defendant’s behaviour. She stayed together with the Defendant and her two other sons and their respective families at their home at Houmakelikao. They had done the best they could for the Defendant and hoped for a change in his behaviour but to no avail. The Defendant’s mother recommends it is best for the Defendant to be kept in prison for the safety of her family and the community.
54. A similar course of action is put forward by District Officer Takau. He further stated having received complaints from community members including the Defendant’s mother in relation to the Defendant’s anti-social behaviour. The District Officer concludes that the Defendant’s behaviour will never change, and it is a threat to the peace in the community.
55. The Defendant left high school in form 4 at Apifo’ou as he was a low academic achiever.
56. The Defendant is generally healthy, and he has admitted to having abuse problems with alcohol and drugs. He is unemployed and relies on his mother for income.
    2. In relation to the Offending
57. The Defendant did not directly admit to the offending. He did say he was drunk when he returned home around 2am of morning of the alleged offences. The Defendant states he did not know anything about what he did in the offences.
58. After the offending took place, he left home to Ma’ufanga to look for people to party. He ended up sleeping his friend’s house and stayed there for about a week followed by the police coming to arrest him.
59. The Defendant stated that he knew the Complainant was his older brother’s wife. At the time of the offence that brother was away for his job on a fishing boat and that he could not such an offence to his brother’s wife.
60. The Defendant’s mother stated the Defendant had done similar acts to her own female granddaughters who lived together with them at home.
61. The Defendant has indicated during the interview that he will ask the court to change his plea to not guilty on his next court appearance.
    3. Summary
62. The Defendant had a stable upbringing with both parents actively present throughout his life. Unfortunately, he became involved with alcohol and illegal drugs.
63. He is now continuing a life against the law and is currently serving a sentence imposed by the Magistrate Court.
64. He is not connected with his community, and his behaviour is against the acceptable social norms.
65. He has shown very little remorse for the offending and has health issues related to alcohol and drug abuse.
    4. Assessment
66. The Defendant pleaded guilty and appears for sentencing on one count of serious housebreaking and one count serious indecent assault.
67. He is a repeat offender, and the offending is identified as premeditated when he knew the Complainant’s husband was away and not at home. It is a significant abuse and breach of trust as close family members.
68. His attitude of denial is a commonly known pattern of behaviour from sex offenders with the purpose of diminishing responsibility and to escape the consequences of their criminal actions.
69. He shows very little remorse of what he did in the offending, and he is considered at very high risk of reoffending that poses a threat to the society.
    5. Recommendation
70. It is recommended for the Court to consider a direct custodial sentence for the Defendant.
    10. DISCUSSION
71. The maximum penalty for serious indecent assault contrary to section 124 (1) and (3) of the Criminal Offences Act is a term of imprisonment not exceeding 5 years;
72. The maximum penalty for serious housebreaking is 7 years imprisonment. However, the Crown believes that given the nature of the offending, the acts of serious indecent assault (Count 2) should be the head sentence. I agree with the Crown’s position.
73. However, the comparable cases do not assist me much in terms of the starting point. No mention is made of what the starting points were in the comparable cases given. The acts of indecency also mostly involved touching and kissing of the breast and neck, touching of the thighs and attempted rape.
74. The only case close enough for a comparison is the Vaomotou case which involved licking of the vagina while the victim was sleeping. The accused in that case received 3 years imprisonment for that act of serious indecent assault. In this case, accused had licked the victims buttocks while she was sleeping;
75. I therefore set a starting point of three years imprisonment for Count 2. In this case, the victim was known to the accused. She is related to him through marriage to his older brother. This makes his offending that much more serious for the breach of trust involved.
76. Additionally, the attack had been made in the safety and comfort of the victim’s house where she had every right to feel safe from intruders. The homes of every citizen are the places where they should not only feel safe but where they should be safe. Individuals who would attack women in the safety of their homes are to be deterred.
77. I therefore uplift the starting point by 12 months for the aggravating factors of breach of trust and having previous convictions for similar offending. This makes a total of 4 years imprisonment.
78. For his early guilty plea and assisting the police, I deduct 6 months from the starting point, leaving a total of 3 and a half years imprisonment;
    
    11. SUSPENSION
79. I now turn to whether the circumstances in this case warrant a suspension of part or the whole of the overall sentence. As was noted by the Lord Chief Justice Whitten in the case of Rv Afeaki [2020] TOSC 43; CR 208 of 2019 (7 February 2020], although section 24(3) of the Act gives the Court jurisdiction to suspend the whole or part of the sentence for any period of up to three years, it is silent on the criteria to be considered in deciding whether a sentence should be suspended. However, the court in that case used the guidelines taken from the case of Mo’unga v R [1998] Tonga LR 154 where the Court of Appeal approved the approach of Eichelbaum CJ in R v Petersen [1994] 2 NZLR 533 (CA) when considering the issue of suspension. These considerations were summarized by LCJ Whitten as follows:
    1. A suspended sentence is intended to have a strong deterrent effect;
    2. If the offender is incapable of responding to a deterrent, it should not be imposed;
    100. The circumstances in which a suspension of sentence may be appropriate include:
         1. Where the offender is young, has a previous good record or has a long period of free of criminal activity;
         2. Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself;
         3. Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender; and
         4. Where there has been co-operation with the authorities.
80. Only one of the positive considerations above apply to the accused in this case, that is, his cooperation with the police. I also take into account that the nature of the offending was only fleeting, unlike the offences in the cases referred to by the Crown where the assaults involved some sort of violence or threats, were premeditated and the length of the assaults were for longer periods of time.
81. I also believe that the accused actions is a consequence of his drinking problem and taking drugs as described to the probation officer. He has now experienced what many others before him who have appeared in court for crimes committed due to excessive drinking and hopefully he has learned that excessive drinking and drugs will most likely always land one in trouble.
82. Additionally, the victim has indicated that she has forgiven the accused and has moved on with her life. However, she no longer wants anything to do with him as she and her children still feel unsafe around him;
83. For these reasons I order that the last 12 months of the head sentence is suspended for 3 years conditions;
84. For Count 1 the accused is sentenced to 2 years imprisonment to be served concurrent to Count 2;
85. The accused is to serve the remaining thirty months of his sentence.
86. Finally, as requested by the Crown and pursuant to section 119 of the Criminal Offences Act, I direct that the identity of the complainant and her evidence taken in the proceedings shall not be published in the Kingdom in a written publication to the public or be broadcast in the Kingdom.
    50. RESULT
87. The accused is convicted and sentenced as follows:
    1. Serious Housebreaking – 2 years imprisonment concurrent to Count 2;
    2. Serious Indecent Assault – 3 ½ years’ imprisonment. The final 12 months is suspended for 3 years on the following conditions:
    100. The accused is not to commit any further crimes punishable by imprisonment during the period of suspension;
    4. He is placed on probation and is to report to the probation officer within 48 hours of his release from prison;
    5. He is directed that whilst he is in Hu’atolitoli, further to any orders and commands by the Prison Commissioner and his staff, he is also to be placed under the care of the Prison Chaplain Reverend Semisi Kava for counselling purposes on the times and dates allocated by the Prison Chaplain;
       

NUKU’ALOFA: 9 May 2024

‘E. M. Langi
J U D G E