R v P.S (a pseudonym) [2024] TOSC 35; CR 27 of 2024 (4 June 2024)

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

CR 27 of 2024

BETWEEN:
REX
Prosecution

AND:
P.S (a pseudonym)
Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Counsel T. Vainikolo for the Prosecution
Counsel S. Fonua for the Defendant

Date of Sentence: 4 June 2024

1. THE CHARGES

1. On 9 April 2024, the Defendant pled guilty to the following charges:
   1. Count 1: Indecent Assault on A Child, contrary to section 125 of the Criminal Offences Act.
   2. Count 3: Indecent Assault on A Child, contrary to section 125 of the Criminal Offences Act.
   100. Count 4: Indecent Assault on A Child, contrary to section 125 of the Criminal Offences Act.
   4. Count 5: Indecent Assault on A Child, contrary to section 125 of the Criminal Offences Act.
2. The Crown accepted the Defendant’s plea and withdrew count 2 which was another charge of Indecent Assault on A Child contrary to section 125 of the Criminal Offences Act.
   
   2. SUMMARY OF FACTS
3. The Complainant is a 10-year-old female, residing at Ha’ateiho
4. The Defendant is male, 64 years of age and resides at Ha’ateiho. The complainant and the Defendant are neighbours, their houses are across from each other.
5. On an unknown date in July 2023, the Complainant and her brother along with other kids were playing in a clearing at the Defendant’s allotment. The Defendant waved at the Complainant for her to come to him.
6. The Complainant thought the Defendant needed her assistance with something. When she got to him, the Defendant gave her $10 then forcefully kissed her on the mouth then sucked her breasts.
7. The Defendant then removed the Complainant’s pants and licked her vagina. The Complainant heard her mother calling for her and told the Defendant she needs to go, but he kept licking her vagina.
8. The Complainant pushed the Defendant away, pulled up her pants then ran back to her house.
9. On or about 20 August 2023, the Complainant was looking for clothes in her room when the Defendant peeked at her and handed her $20 through the louvre and told her not to tell. The Complainant replied with a yes and the Defendant left.
10. On that same evening, the Complainant was in the living room watching her little brother while their mother was taking a shower. The Defendant came to the door and asked the Complainant if he could come in so they could kiss. The Complainant refused and shut the door.
11. On or about 21 August 2023, the Complainant was carrying her baby brother and walking around outside their house. The Defendant saw them and called the Complainant to come over.
12. The Complainant went over, the Defendant then kissed her on the mouth, sucked her breasts, removed her pants and licked her vagina. The Complainant cried and so did her baby brother. The Defendant then gave the Complainant $10 and she grabbed her brother and returned home.
13. On or about 23 August 2023, the Defendant did the same thing and gave the Complainant $10 afterwards.
14. On or about 24 August 2023, the Defendant repeated the same indecent acts and gave the Complainant $15 afterwards.
15. On or about 25 August 2023, the Defendant repeated the same indecent acts and gave the Complainant $15 again afterwards.
16. All the indecent acts occurred under the pandanus tree outside the Defendant’s house.
17. On or about 26 August 2023, the Complainant, her mother and her two younger brothers were selling produce on the roadside in front of their house. Her mother asked her to go to their water tank and fill up a bottle.
18. The Complainant went home to do so when the Defendant called her from his house to come over and eat some cake. She refused and kept filling the bottle.
19. The Complainants father saw the interaction and asked the Complainant to come inside the house and asked her why the Defendant kept calling her. She cried and explained to her father what the Defendant had done to her.
20. On that same day, the Complainant and her family had a family meeting where her father told the Complainant’s mother what had happened. The family spoke about it with the Complainant to confirm what had happened to her.
21. On 29 August 2023, the Complainant’s mother lodged a complaint with the police.
22. On 30 August 2023, the Police arrested the Defendant for committing indecent assaults.
23. On 25 September 2023, the Police with the help of the Complainant took photos of the place the offending took place.
24. On 6 September 2023, the Defendant was interviewed by police. The Defendant cooperated and in his record of interview, he accepts that he indecently assaulted a child knowing it was a crime. The Defendant accepts that he indecently assaulted the Complainant on more than one occasion.
    
    100. AGGRAVATING & MITIGATING FACTORS
25. The Crown submits the following as aggravating factors in this case:
    1. The seriousness of the offending
    2. The victims age, renders her vulnerable
    100. Age disparity, at the time of the offending the Defendant was 64 years old, and the victim was 10 years old.
    4. Breach of trust – the Defendant and the victim are neighbours.
    5. The Defendant took advantage of the victim by luring her to his residence and then giving her money after committing the indecency.
    6. The offence was premeditated
    7. The Defendant is not remorseful, offering no apology to the victim or her family.
       
26. The Crown submits the following as mitigating factors in this case:
    1. The Defendant is a first-time offender
    2. The Defendant cooperated with the police
    100. The Defendant pled guilty at the first available opportunity
         

4. RELEVANT LEGISLATION

27. The maximum penalty for Indecent Assault on A Child is 7 years imprisonment under section 125(1) of the Criminal Offences Act.
    
    5. PREVIOUS CONVICTIONS
28. The Defendant has no previous convictions
    
    6. SENTENCING COMPARABLES
29. The Crown submits the follow cases to assist the Court in determining an appropriate sentence for the Defendant:
    
    1. Rex v Tevita Mafi Hia, Cr 126.2023, 3 August 2022, Cooper J
30. The victim was 11 years old at the time of the first offence, the Defendant was 62 years old. The Defendant was found guilty of 6 counts of indecent assault (2 counts of indecent assault, 4 counts of serious indecent assault)
31. The indecent acts included fondling the breasts, touching and licking the vagina and rubbing his penis on the victim and forcing her to touch his penis and ejaculating on the victim’s vagina.
32. Starting point for indecent assault on a child was set at 3 years, increased by 1 year for masturbating and ejaculating in front of the victim. For serious indecent assault, a starting point of 2 years was set, increased by 1 year to reflect the aggravating factors.
33. The Defendant was a first-time offender and was sentenced to 7 years imprisonment, the last 6 months of the sentence suspended for 2 years on conditions.
    
    2. Rex v Mosese latu, CR 114 of 2922, 15 June 2023, LCJ Whitten KC
34. The Defendant was found guilty of 1 count of indecent assault on a child. The victim as 9 years old and the Defendant was 44 years old at the time of the offence. The indecent assault included licking the vagina.
35. The only mitigating factor was the Defendant’s lack of a previous conviction.
36. A starting point of 2 ½ years was set and he was sentenced to 2 years imprisonment with the final 8 months suspended for 12 months on conditions.
    
    3. R v Motuliki, CR 55 of 2019 (Unreported 13 January 2019, LCJ Paulsen)
37. The Defendant was a 56-year-old man who had licked the vagina of a 5-year-old. A starting point of 2 years was considered appropriate here given that the abuse was not protracted and there has been no exposure of the Defendant’s genitals, violence or premeditation.
38. These facts were significant in the result starting point.
    
    4. R v P.F (Unreported, Supreme Court, CR 212 of 2019, 5 June 2020, LCJ Whitten)
39. The Defendant was convicted of two counts of serious indecent assault on his 17-year-old stepdaughter. The Defendant inserted his hand inside the victim’s underwear and fondled her vagina and fondled her breasts.
40. LCJ Whitten considered factors such as the maximum penalty of 5 years imprisonment, comparative seriousness of the offending, the impact on the victim and the lack of remorse from the Defendant, resulting in a starting point of 2 years imprisonment for Count 1.
41. An additional year was added to the starting point due to the aggravating features of the case, the gross breach of trust between stepfather and daughter, the Defendant’s maturity in comparison to the victim’s immature age, the repeated nature of his attacks and touching the vagina.
42. The Defendant was sentenced to 3 years imprisonment for count 1 (fondling the vagina) and 2 years imprisonment for count 2 (fondling the breast).
    
    5. Rex v Siale Tu’i (Unreported, Supreme Court, CR 106 of 2020, 21 July 2020, Justice Niu)
43. The Defendant was 66 years old and pled guilty to one count of serious indecent assault and one count of unlawful imprisonment. The victim was 15 years old and had gone to the Defendant’s house thinking he needed assistance after he called for her.
44. The Defendant lured the victim into his bedroom where he pushed her onto the bed, lifted her skirt and sucked her breasts.
45. Justice Niu adopted a starting point of 2 years imprisonment. To account for the mitigating factors, having pled guilty, lack of a previous conviction and his cooperation with the police, the last 6 months of the sentence was suspended on conditions.
    
    6. R v Vi (Supreme Court, CR 234 of 2020), 8 June 2021, LCJ Whitten
46. The Defendant pled not guilty to one count of indecent assault on a child under the age of 12 and one count of serious indecent enticement of a child. At the commencement of the trial, the Defendant changed his plea to guilty to the second count. For Count 1, following the victims, her mother and her brother’s evidence, he also changed his plea to guilty.
47. The victim was 4 years old at the time of the offence where the Defendant took her to a little house and the Defendant, kissed, ripped her pants and underpants and inserted his finger into the victims vagina.
48. For Count 1, a starting point of 3 years was set. An additional year was added for the violence inflicted and the lasting psychically and psychologically on this young and defenceless girl.
49. For his late guilty plea, 6 months was deducted resulting in a final sentence of 3 years and 6 months. The final 12 months was suspended on conditions.
    
    7. Peni Halai (unreported, Supreme Court, CR 79 of 2017, 1 Feburary 2019, Cato J)
50. The Defendant was convicted of 9 counts, including 3 counts of indecent assault of a child under the age of 12. The two complainants were aged 10 and 13.
51. The Defendant was sentenced to 4 years imprisonment for inserting his penis in one complainant’s mouth, 2 ½ years for licking her vagina and 18 months for fondling the other complainant’s vagina.
52. Both sentences were ordered to be served concurrently with a head count for sodomy of 6 years and 3 months imprisonment. The final 15 months of the overall sentence was suspended on conditions
    
    7. VICTIM IMPACT REPORT
    1. Interview with the victim
53. The victim is 10 years old, lives in Ha’ateiho and is currently in class 6 at GPS Tokomololo.
54. The victim recalls clearly what happened and dislikes the feeling when she has to think about it. She states being shy talking about the incident and only talks to it when asked by her parents.
55. The victim is now frightened to go to the neighbour’s house unlike before the offending occurred and is frightened at the ideas of the Defendant being near her.
56. She hates what the Defendant did to her and wishes not to see him. The Defendant has not apologised, and she does not want to forgive me. The victim has expressed her hate for the Defendant.
    

ii. Interview with the victim’s parents

57. They have noticed behavioural changes in their daughter, and it is affecting her education. She used to be in the top 10 of her year level in the first two terms of school in 2023. In the latter two terms of the same year, her grades dropped and placed in top 15 overall.
58. The victim’s mother stated before the offending her daughter was active and loved to socialise with the neighbours and her classmates. Now, she fears going to the neigbours and would prefer to now stay home and play with her younger siblings.
59. The victim also told her mother that she finds being surrounded by her peers specifically boys disturbing and would often chase them away.
60. Prior to the offending, the mother stated that the victim was never one to care about her looks but now she finds the victim staring at the mirror being self-conscious about her appearance.
61. The parents also state the victim prior to the offending would usually talk back a lot but now she cries and avoids them when they would argue with each other.
62. Their daughter often blanks out, even when they are speaking to her. When they disrupt her to get her attention, she is often startled and sometimes cries.
63. Any conversation about the offending is always initiated by the victim, when she talks about it, she becomes red, eyes widen, she trembles and cries. The victim’s reaction is the same every time she talks about the offending.
64. The mother also states that her daughter criticises the Defendant’s immediate family for no reason, her daughter despises the Defendant and any conversation about them is initiated by the daughter.
65. Before the offending the victim has no problem walking by herself to the shop and to church, now she always wants someone to walk with no matter what time of day it is.
66. The victim’s mother has stated that her husband is embarrassed of the offending and wishes for the court proceedings to end before it brings more shame to their family
67. The victim’s father states that prior to the offending, she would be content with whatever lunch money she is given, now she continues to ask for more money.
68. Both parents state that they have not forgiven the Defendant and that the Defendant has not apologised to them.
    
    8. CROWN’S POSITION ON SENTENCING

1. Starting Point

69. Given the seriousness of the offence, cited authorities and aggravating features, it is submitted that a custodial sentence be imposed on the Defendant.
70. Crown submits that a starting point of 3 to 4 years imprisonment is imposed.
    

2. Mitigation

71. For the Defendant’s early guilty plea (saving the victim from having to give evidence in Court about what happened), his lack of a previous record and his cooperation with the police, Crown submits a deduction of 12 months from the starting point resulting in 24-36 months’ imprisonment.
    

3. Suspension

72. According to Mo’unga v Rex [1998] Tonga LR 154, the Crown submits that the Defendant is eligible for part of his sentence to be suspended.
73. The Defendant is not young, and he called the victim to his house to commit the offence showing premeditation, the Defendant also cooperated with the police and lived a crime free life until these offences
    

4. Final Sentence

74. Crown respectfully submit the appropriate sentence to be imposed for all 4 counts is 36 months’ imprisonment with the final 6 months suspended for 2 years on the following conditions:
    1. Not to commit any offence punishable by imprisonment during the period of suspension
    2. To be placed on probation
    100. To live where directed by the Probation Office
75. The Crown leaves it to the discretion of the court to determine the appropriate sentence for the Defendant.
    
    1. PRESENTENCE REPORT

1. Personal History

76. The Defendant is the eldest child of his parents’ nine children from Niuatoputapu. His father passed away in 1992 and all other members of the family are survived. The Defendant grew up living with his parents at Falehau in Niuatoputapu and relationships at home was reported to be good.
77. In 1993, the Defendant married his wife also from Falehau and they had 6 children together. The youngest is still in high school, 2 and continuing their studies at university level and the others have secured employment.
78. The Defendant’s wife describes her husband as a devoted husband and father. The two key values important to the Defendant is religion and better education for their children. The children moved to Tongatapu for further education while she and the Defendant remained in Niuatoputapu. In the past 4 years, the Defendant’s wife also moved to Tongatapu while the Defendant remained in Niuatoputapu to provide for their family and support their children’s education. The Defendant often travels from Niuatoputapu every year to visit the rest of the family here in Tongatapu. It was during one of these visits that the offending occurred in July 2023.
79. After the offending, the Defendant was separated to live at his brother’s house in Talasiu. On 14 May 2023, the Defendant relocated to a new rented home provided by his children at Tokomololo. The Defendant’s brother no longer accepted him to live together with his family.
80. Fr Afu recommends the Defendant as an active member of the Catholic Church of Ha’ateiho and has stated knowing the Defendant and his family well when he first served as a Parish priest at Niuatoputapu.
81. Ha’ateiho’s Town Officer states he is not aware and does not know the Defendant.
82. The Defendant ended his education in Form 1 where he dropped out due to family circumstances. His father was sick, and he took up the fatherly role to support his mother and educate his younger siblings.
83. The Defendant has high blood pressure and takes medicine to treat it.
84. The Defendant is the main source of income for his family, through processing “lou’akau” in Niuatoputapu, then transported to his wife in Tongatapu to sell at the local markets. The Defendant also has a plantation and during harvest time, it provides food for his family members in Nuku’alofa.
85. The Defendant’s wife also weaves and sells her weaving.
86. Other sources of income in the family are from the Defendant’s children and their employment.
    
    2. Factors Relating to the Offence
87. The Defendant admitted to the offences and fully accepts the summary of facts.
88. The Defendant blames the victim for him committing the offences and states that he had spent a lot of money on several occasions when the victim came to him.
89. The Defendant admitted that the reason for giving the victim money was to allow him to do the things he committed in the offending.
90. The Defendant expressed his regrets for committing the offence, stating it has put a curse on his family and ruined their reputations. The Defendant stated that he is trying to make things right due to his actions.
91. The Defendant’s wife states once the offending was revealed they were all embarrassed, began feeling isolated from normal life and from relationships within and outside the family. Despite its difficulty, the Defendant’s wife and son state that they all stand together as a family and support the Defendant during this difficult time.
92. On interview with Fr. Afu, he was surprised to hear what the Defendant has done when he approached the father to confess and seek spiritual counselling. Fr.Afu is continuing to support the Defendant morally and spiritually.
    
    3. Summary
93. The Defendant is currently 64-years-old. His home for all his life is Falehau, Niuatoputapu and at the time he committed the offences he came to visit his family members at Ha’ateiho.
94. He had to drop out of school early with no choice but to take on the fatherhood roles for the rest of his family due to his father having health problems.
95. Despite the offences, the Defendant had been recommended during the interview by the family members together with Fr. Afu as a hard-working and devoted husband and father.
96. He had been well supported by his family and the Parish Priest during this very difficult time.
97. The Defendant has health issues and is consistently receiving medicine for treatment.
98. The Defendant shows remorse for the offending.
    
    4. Assessment
99. The Defendant pled guilty to all four counts of indecent assault on a child and now appears for sentencing.
100. He is a first-time offender and had been living a life free of crime.
101. In considering the circumstances of the offences the Defendant took advantage of the vulnerabilities of the victim as a child to commit the offences. His offending behaviours is identified as premeditated when he repeatedly committed the offences at various times.
102. His attitudes of giving money and victim blaming are a commonly known pattern of manipulation techniques that has been identified and used by child sex offenders like the Defendant for the purpose of:
     1. repeatedly doing the same pattern of sexual abuse behaviours on children
     2. diminishing taking responsibilities for their offences
     100. escaping the consequences of their criminal actions.
103. It is in my view that the Defendant’s criminal behaviour is considered a significant abuse and breach of trust at the very highest level.
104. His violent and illegal behaviours caused traumatic suffering and shameful experiences on the child victim for the rest of her life, thus he is considered a high risk to society, especially to children.
     5. Recommendation
105. It is recommended for the Defendant to be given a partly suspended imprisonment sentence under the following conditions;
     1. The Defendant is to be placed on probation.
     2. He is not to commit any offence punishable by imprisonment.
     100. He is to live where directed by the probation officer.
     4. He is not to associate with children.
     5. He is to undergo rehabilitation course and spiritual treatment under the direction of the Rev. Semisi Kava while serving his time in prison.
        

10. REFERENCES SUBMITTED ON BEHALF OF THE ACCUSED

106. The court received several references in support of the Defendant. These include a letter from St Michael’s Parish Priest and the town officer of Ha’ateiho to name a few.
107. The Defence submitted the reference letters and supports the content of these letters in considering the background of the Defendant from the Defendant’s wife and Community Leaders.
108. I note these references in considering the Defendant’s sentence.
     
     11. MITIGATION PLEA
109. Counsel for the Defendant submits the following as a mitigation plea and a response to the Crown’s Sentencing Submissions.
110. The Defendant disputes that no apology was made on behalf of the Defendant.
111. The Defendant’s wife went to the victim’s home two times on 26 August to apologise on behalf of her husband. The Defendant wanted to go apologise as well but was warned by the victim’s father not to show up at the house.
     
     1. Submissions on Sentencing
112. The Defendant concedes the crimes done here is serious and abhorrent even though the charges are not of “serious indecent assault.”
113. The Defendant submits the following as mitigating factors:
     1. First-time offender
     2. Pled guilty on the first available opportunity
     100. Cooperative and remorseful over what he did
     4. Defendant’s family had apologised to the victim and her family twice.
        
114. The Defendant also submits the following societal factors which are supported by a letter from the Defendant’s wife:
     1. In her endeavours to earn a living for the family by group weaving, she had left the Defendant alone for long periods of time where he could have felt neglected. She was always away from home, including the times that the crime was committed.
     2. The letter from Fr. Afu indicated the crimes were unbecoming and out of character for the Defendant. The Defendant is a devoted member of the Catholic Church and told the Father his deep remorse for what he had done.
        
     2. Starting Point
115. Given the sentencing comparable submitted by Crown, the mitigating factors in support of the Defendant, Defence submits the appropriate starting point is 2 years with a substantial part if not the whole sentence be suspended.
116. Considering the principles in Mo’unga v Rex [1998] Tonga LR 154, which is summarised by LCJ Whitten in R v Afeaki [2020] TOSC 43; CR 208 of 2019 [7 Feburary, 2020] that state;

“.... a suspended sentence is intended to have a strong deterrent effect; if the offender is incapable of responding to deterrent, it should not be imposed...”

3. Conclusion

117. The Defendant is remorseful, he is 65 years old and has lived a life free of crime except for this case. The Defendant is aware if the societal repercussions his actions have on his children.
118. The Defendant humbly admits that offending were incidents of weakness which he succumbed against his better judgement.
119. The Defendant trusts the Court to impose a sentence that is appropriate and is prepared to accept it.
     
     50. DISCUSSION
120. The maximum penalty for indecent assault on a child under 12 years old is 7 years’ imprisonment;
121. The gravity of the offence will determine the starting point for the sentence. The comparable cases submitted by the Crown and which I consider appropriate and relevant to setting a starting point for this case are as follows:
     1. Rex v Mosese latu, CR 114 of 2022, 15 June 2023, LCJ Whitten KC – Accused charged with one count of indecent assault on child which involved the licking of the vagina. A starting point of two and a half years was set;
     2. Peni Halai (unreported, Supreme Court, CR 79 of 2017, 1 Feburary 2019, Cato J)- The Accused was charged with indecent assault on a child where a starting point of two and a half years’ imprisonment was set;
     100. R v Motuliki, CR 55 of 2019 (Unreported 13 January 2019, LCJ Paulsen) – The accused was charged with indecent assault on child which involved licking of the vagina. A starting point of two years was set and one of the considerations by the court was that there was no exposure of the accused’s genitals;
     4. (Not in Crown’s submissions) R v Taulanga [2007] TLR (Andrew J)
122. In comparing the above cases with the facts of this case, I agree with the Crown that a starting point between 3 – 4 years is appropriate. This is because of the number of times the accused assaulted the victim, in addition to licking the victim’s vagina he had also exposed himself and masturbated on the victim. Additionally, his actions were premeditated as it is clear that he kept seeking out an opportunity to give the victim money in order for him to do what he did. I take this as very serious aggravating factors and therefore set the starting point at 4 years’ imprisonment;
123. Unfortunately, the action of the accused is becoming all too common in Tonga, with older men preying on young innocent children and using money and sweets to tempt them into allowing their indecent acts;
124. I also take as an aggravating factor that the accused shows no remorse over what he has done when he told the probation officer that it was the victim who caused all of this and that he had wasted a lot of money on her;
125. For the mitigating factors of an early guilty plea and having no previous convictions, I deduct 12 months. This has at least spared the victim the trauma in having to relive these events by having to give evidence;
126. I also take into account the submissions made on behalf of the accused by his counsel Mrs. Fonua. It is clear that he is a hardworking man and had lived most of his life in Niua working to support his family. His actions are reported to be very unlike him and that he is a reliable person in his community in Niua.
127. Despite these reports on his character, the accused actions in indecently assaulting a 10 years old child is abhorrent and it was not a one-off incident for one to believe that it was a momentary attack of temptation but he had repeatedly abused the victim when there was an opportunity to do so. The attack would have continued if the victim’s father had not confronted her;
128. Turning now to suspension, the Crown recommends that 6 months is suspended from any sentence given;
129. Given the aggravating factors I’ve referred to above; I accept that a suspension of the last six months is sufficient;
     
     13. RESULT
130. The accused is convicted on four counts of indecent assault on a child contrary to section 125 of the Criminal Offences Act and sentenced as follows:
     1. Count 1 (Head count) – 3 years’ imprisonment. The final 6 months is suspended on the following conditions:
        1. The accused is not to commit any further crimes punishable by imprisonment during the period of suspension;
        2. He is placed on probation and is to report to the probation officer within 48 hours of his release from prison;
     2. Count 2 – Two years’ imprisonment concurrent to Count 1;
     100. Count 3 - Two years’ imprisonment concurrent to Count 1;
     4. Count 4 - Two years’ imprisonment concurrent to Count 1;
131. The accused is to serve a total of 30 months imprisonment.
132. Pursuant to section 119 of the Criminal Offences Act, I order that the identity of the complainant in these proceedings shall not be published in the Kingdom, in a written publication to the public or be broadcasted in the Kingdom.
     

NUKU’ALOFA: 4 June 2024

‘E. M. Langi
J U D G E