R v 'Otuhouma [2024] TOSC 38; CR-VAV 1 of 2024 (26 April 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NEIAFU REGISTRY

CR-VAV 1 of 2024

BETWEEN:
REX
Prosecution

AND:
MU’A KI FALEULA ‘OTUHOUMA
Defendant

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Sesilia ‘Eliesa for the Crown Prosecution
Counsel L. Fonua for the Defendant

Date of Sentence: 26 April 2024

1. THE CHARGES

1. On 22 April 2024 the Defendant was found guilty on a single charge of Serious Indecent Assault contrary to section 124(1) and (3) of the Criminal Offences Act.
   
   2. SUMMARY OF FACTS
2. The Complainant is a 22 year old female, currently residing in Talau, Vava’u.
3. The Defendant is Mu’a Faleula ‘Otuhouma, male, 55 years old residing in Mangaia Vava’u.
4. The Defendant’s wife is the sister of the Complainant’s mother;
5. On or about 17 October 2023, the complainant’s parents left the house to go to their bush allotment and she was then at home on her own.
6. At about 11:00am, the complainant took a shower and dried herself before sitting on a chair in front of her dresser;
7. She then messaged her friend ‘Elena Hansen to come and stay with as she was home alone;
8. While she was still sitting naked on the chair, she was taken by surprise when the accused suddenly stood at the door to her room. She quickly fumbled around to find something to cover herself but she could not get hold of anything. She put one hand to cover her pubic hair area and one hand to cover her breasts in an attempt to cover her nakedness;
9. By that time, the Defendant had walked over to her and mumbled something that sounded like ‘sitting there like Adam’. He then forcefully pushed her hand away from her breasts and bent his head and sucked her breast. She tried to push him away from her and kept saying ‘go away’;
10. The Defendant continued trying to push her hands away and she struggled and tried to kick him. The Defendant stepped back and she was able to throw a bottle of lotion at him. However, he came back towards her and continued kissing her neck and tried to kiss her mouth;
11. During his assault she still had her phone in her hand and she was able to send another message to ‘Elena to come quickly. While the Defendant was kissing up her neck she heard her friend ‘Elena calling out her name. The Defendant suddenly let go of her and walked out of the room;
12. Her friend came into the room and kept asking what had happened but she was unable to reply as she was shaking and still in shock. After a while she was able to tell ‘Elena what the Defendant had done. They remained in the room until they heard the toilet flush and then the Defendant’s vehicle leaving;
13. On 18 October 2023, the complainant lodged a complaint with the police.
14. On 23 October 2023, the Defendant was arrested and charged.
15. On 24 October 2023, Police interviewed the Defendant, he did not cooperate and exercised his right to remain silent.
    
    100. AGGRAVATING & MITIGATING FACTORS
16. The Crown submits the following as aggravating factors in this case:
    1. The seriousness of the offending
    2. The Defendant was a police officer, at the time of the offending he was the Acting Officer in Charge of the Neiafu Police Station. His job was to enforce the law, not break it, his actions constitute a serious breach of his duty as a police officer and the trust of the public.
    3. Breach of trust, the Defendant is married to the victim’s maternal aunt. He breached the complainant’s trust and ruined the relationship between her and her cousins, the Defendant’s children.
    4. Age disparity: the Defendant was 57years old and the complainant was 22 at the time of the offending. There is an age gap of over 30 years. The Defendant is about the same age as the complainant’s mother.
    5. The Defendant pled not guilty to the charge making the complainant re-live what happened to her in giving evidence in Court. The Defendant’s evidence in court claimed that he and the complainant were in a sexual relationship and the words used to explain what he thought they did, reflects his character.
    6. The Defendant did not cooperate with the Police.
       
17. The Crown submits the following as mitigating factors in this case:
    1. The Defendant is a first time offender.
       

4. RELEVANT LEGISLATION

18. The maximum penalty for Serious Indecent Assault is 5 years imprisonment per section 124(3) of the Criminal Offences Act.
    
    5. PREVIOUS CONVICTIONS
19. The Defendant has no previous conviction.
    
    6. SENTENCING COMPARABLES
20. The Crown Submits the following cases to assist the Court in determining an appropriate sentence for the Defendant:
    1. Uikelotu Afeaki (Unreported, Supreme Court, CR 208 of 2019, 7 February 2020)
21. The Defendant was 15 years of age at the time of the offending. The victim was a 51-year-old New Zealand volunteer working in Tonga. The Defendant grabbed the victim’s buttocks and breasts over her clothes.
22. The Defendant pleaded guilty to both counts and was a first-time offender. He was sentenced to 12 months’ imprisonment, fully suspended.
    
    2. R v S.H (a pseudonym) [2022] TOSC 34; CR135 of 2021
23. The Defendant pleaded 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. The Defendant is the victim’s father.
24. The three counts of serious indecent assaults were Count 1 – touching of victim’s bare back buttocks and thigh, Count 2 – touching her breast while trying to pull her down on the bed to sleep with him, and Count 4 – stroking the victim’s thigh and kissing her neck near her chest.
25. 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.
26. 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.
    
    3. R v P.F (Unreported, Supreme Court, CR 212 of 2019, 5 June 2020, Whitten LCJ),
27. The accused was convicted of two counts of serious indecent assaults on his 17-year-old stepdaughter. He had inserted his hand inside the victim’s underwear and fondled her vagina and fondled her breast.
28. The Judge in considering the maximum penalty of 5 years, the comparative seriousness of the offending, the impact on the victim and the Defendant’s lack of remorse, an appropriate starting point for count 1 is two years imprisonment. One year was added to the starting point due to the aggravating features of the case, that is the gross breach of trust between a stepfather and daughter, the defendant’s relative maturity compared to the victim’s immature age, the repeated nature of his attacks on the victim and the touching of the vagina.
29. The accused was therefore sentenced to 3 years imprisonment for count 1(fondling the vagina) and two years imprisonment for count 2 (fondling of the breast).
    
    4. Rex v Siale Tu’i (Unreported, Supreme Court, CR 106 of 2020, 21 July 2020, Justice Niu)
30. The Accused was 66 years old, pleaded 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 Accused’s house thinking that he required assistance after he had yelled out to her. The Accused lured the victim into his bedroom where he pushed her onto the bed and lifted her shirt and sucked her breast. Justice Niu adopted a starting point of 2 years imprisonment. In light of the mitigating factors of pleading guilty, having no previous convictions and cooperation with the police the last six months of the sentence was suspended on conditions.
    
    5. R v Hu’akau [2018] TOSC 70; CR107&108 of 2017 (16 November 2018)
31. The Accused was convicted of several counts of sexual offending. Among those offending, the Accused was sentenced to 18 months’ imprisonment for squeezing the victim’s breast (Count 3), and 18 months’ imprisonment for kissing the victim’s mouth, pulling up her T-shirt, and sucking her breast (Count 5), and 18 months imprisonment for kissing and sucking the victim’s breast (Count 11).
    
    7. VICTIM IMPACT REPORT
       1. Interview with the victim:
32. Counsel was able to talk to the Victim on 23 April 2024. As mentioned in her evidence in Court, she said the families used to be so close, and she used to even have sleepovers at the Defendant’s house. The complainant looked up to him as her uncle and that she is the same age as his oldest daughter. Now, the families do not speak to each other, and she would hear or sense people gossiping that she had an affair with the Defendant. The offending ruined her life.
33. At times stay in her room is difficult given the offending occurred in the room. The complainant sometimes has thought of dying, so that the people mad at her would be satisfied, she blames herself for what happened and how complaining to the Police has ruined their family ties.
34. At the time she was taking courses with Pathway Connect and BYU. She was almost done with the courses when the offending happened that it stopped her studies altogether. She left to New Zealand in 2023 and fears coming back to Vava’u as people will talk and will still feel hurt about it. The complainant also received a message on 23 April 2024, through Facebook from what looks to be a fake page telling her she was having an affair with her mother’s sister’s husband.
35. Even if the Defendant were to apologise, she would not accept it, but if his children reach out to her, she would be happy to continue a relationship with them because it was not their fault what the Defendant has done.
    
    2. Interview with the Victim’s Parents:
36. The complainant’s mother shares the same perspective her. Both families were quite close prior to the offending. Both parents state they were too trusting towards the Defendant not only because he was family but also because he was a Police Officer.
37. The Defendant would come to their house even when they were not home and sometimes when he comes at night, he doesn’t knock or call out or turn on the lights, they would only know when they hear someone in the kitchen. They would call out then he would identify himself.
38. Most times when they go to the bush, they leave the house unlocked because nothing bad had ever happened in their neighbourhood. The offence took place and now it is difficult for the mother to trust any police officer.
39. She does not feel safe in her own home, now always remembers to lock the door, and feels the need to stay home. When the complainant comes back, she will not be leaving her at home alone anymore.
40. Both parents stated, if the Defendant were to apologise, they would not accept it.
    
    8. CROWN’S POSITION ON SENTENCING
41. Based on the seriousness of the offence, cited authorities, and the aggravating features, it is recommended that a custodial sentence should be imposed.
42. Similar offences result in a range between 12-24 months. This case is more serious than that of Afeaki and S.H. Those only involved touching the breasts, and the Defendant was sentenced to 12 months’ imprisonment, fully suspended.
43. Crown also note that the victims in the comparable cases are younger, but the victim in this case is also young at 22 years old with an age gap of 30+ years from the Defendant.
44. Crown submits another contrasting feature here is the fact that the Defendant was a high-ranking Police Officer at the time of the offending.
45. Starting point: Crown submits 2 years imprisonment as the starting point in this offence.
46. For aggravating factors, Crown submits an increase of 12 months to the starting point making it 3 years of imprisonment.
47. For mitigation, the only factor here is his lack of a previous conviction therefore he should be allowed a 10% reduction (3 months).
48. Suspension: In paragraph [25] of R v Hafoka, CR90 of 2021, 15 June 2021, LCJ Whitten KC, it stated:

“It should also be borne in mind that if, in any given case, all the considerations referred to in Mo’unga are present, it does not automatically follow that a sentence must or should be fully suspended. The considerations referred to in Mo’unga are not the only factors. “Also relevant may be the seriousness of the offending, the need for an effective deterrence, the effect on the complainant, and the personal circumstances of the offender or those dependent on him or her. There may well be others. But although these are factors that may be taken into account in considering whether, and if so for how long, to suspend part or all of a sentence, the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender. If it is not, or if for any reason, rehabilitation is not relevant to the sentence to be imposed, suspension of any part of the sentence is unlikely to be appropriate”: R v Motulalo [2000] Tonga LR 311; Vake [2012] TOCA 7, referring to Misinale [1999] TOCA 12.

49. In paragraph 12 of AC 24 of 2022 (CR44&45 of 2022, Halalilo and Anor v Rex, 12 December 2022 Whitten P –

“To fully suspend the sentence, in this case, would have failed to give sufficient regard to or place sufficient weight on other relevant factors such as the seriousness of the offending and the particular circumstance of aggravation (namely, the Applicants being police officers), the effect on the victim and the sentencing objectives of denunciation and both general and specific deterrence”.

50. In accordance with Mo’unga v Rex [1998] Tonga LR 154, the Crown submits that the only criterion in favour of the Accused is his previous good character and is eligible for part of his sentence to be suspended.
51. Final Sentence: Crown respectfully submits a sentence of 33 months’ imprisonment with the final 12 months suspended for 2 years on the condition that he is not to commit any further offences during the period of suspension.
52. Considering the comparable sentences, and the mitigating and aggravating factors against the accused, the Crown leaves it to the discretion of the Court to determine the appropriate sentence.
    
    1. PRE-SENTENCE REPORT
       1. Personal History
53. The Defendant is the second eldest of six children. He grew up living with his parents in Mangia who have since passed away, all his siblings remain in Tonga except for one that is in the US. He got married to his wife in 1994 and together they have six children and one grandchild.
54. Family relationships are reported to be good, yet there have been problems since the offence occurred. The Defendant’s wife spoke highly of him as a family man, stating that the offence is unexpected and out of character.
55. The town officer is the Defendant’s oldest brother and the former town officer before that is also a distant relative. Both individuals support the wife’s statement that the Defendant was actively involved in the community.
56. The Defendant belongs to the Mormon church where he was appointed 2^nd assistant bishop in June 2022. He has since been demoted due to the offending. Bishop Lavaka commented that the Defendant and his family are also active members of the church.
57. The Defendant passed his Tonga Higher Leaving Certificate in 1986, then recruited into Tonga Police in 1987 where he completed his 6-month training period and became a police officer. In his years of service, he also took part in internal courses related to domestic violence, illegal substance, and criminal investigation etc.
58. The Defendant has no health problems and does not drink or smoke. He spends his free time taking care of his family plantation.
59. The Defendant now relies on his kava plantation for income together with remittances from friends and family overseas.
60. The Defendant has been serving as a police officer since 1987 until his suspension in October 2023 in relation to this offence. He used to earn an average of $800 every fortnight as a police officer.
61. The Defendant has two loan balances remaining with Retirement Fund Board at $20,000 and MBF Bank at $10,000. Loan repayments have ceased due to his suspension from work.
    
    3. Defendant’s response to conviction and the offence
62. The Defendant does not accept the court’s finding and remains firm in his innocent plea and insists that he did nothing wrong.
    
    4. Character Post-Offence
63. A week after the incident, the Defendant told his wife that he committed the offence. His eldest brother who is the town officer also stated that when he went to bail out the Defendant, he had said, “I did wrong at the complainant’s home.” The brother’s interpretation of this statement is the something wrong was the offence he is charged with.
64. During the interview, the Defendant showed no remorse or regret in committing the offence. He also blames the victim’s family for making up stories about the offence.
    
    5. Assessment by Probation Officer
65. The Defendant was found guilty and appears for sentencing for indecent assault is a first-time offender.
66. The Defendant took advantage of the circumstances to commit the offence, knowing that the victim was home alone.
67. The offending is a significant abuse of trust at the highest level, given the Defendant is related to the victim through his wife and well known. He was also in his work uniform that is trusted by everyone.
68. The Defendant’s denial and act of blaming the victim is a common technique used amongst sex offenders to escape from the consequences of their actions.
69. The Defendant has shown no remorse at all for his actions. He is considered a high risk especially for women and girls given the shame and trauma that has been suffered by the victim.
    
    6. Recommendation
70. It is recommended that court is mindful to consider a partly suspended imprisonment sentence under the following conditions:
    1. Not to commit any offence punishable by imprisonment
    2. To report to his Probation Officer within 48 hours upon released from prison,
    100. He is to be placed on probation during the whole period of his suspension,
    4. To live where directed by his probation officer,
    5. To enrol and complete counselling session under the direction of his religious leader.
       

10. REFERENCES SUBMITTED ON BEHALF OF THE ACCUSED

71. The court received several references on behalf of the Defendant. These include a letter from the town officer and Police Superintendent here in Neiafu to name a few. I note these references in considering the Defendant’s sentence.
    
    11. MITIGATION PLEA
72. Counsel for the Defendant submits the following as a mitigation plea:
73. The Defendant is 57, married with 6 children. He has a long-standing career with Tonga Police for 37 years.
    1. Sentencing:
74. The accepted tariff is 12 months to 4 years imprisonment as stated in R v Vea [2021 TOSC 4; CR 251 of 2020 (25 January 2021) “in Tonga sentences for serious indecent assault ranges from 12months to 4 years.”
    2. Starting Point:
75. This case involved touching and sucking of the breasts, in R v Vea stated that because in that case it only involved touching of the breasts, the appropriate starting point is 12 months.
76. In R v Tu’I [2020] TOSC 54; CR 106 of 2020 (21 July 2020) Justice Niu sentenced the Defendant who had sucked the breast of the victim for 2 years imprisonment, but the victim in that case was 15 years of age and some consideration was given towards the age disparity in sentencing. This is not the case in this current matter, the victim here is a young adult and the age gap between the Defendant and the victim should not be an issue.
77. Defence submits that an appropriate starting point in this case should be 15 months’ imprisonment.
    3. Mitigating Factors:
78. No previous conviction
79. The Defendant is elderly
80. The Defendant apologised to the victim and her family on three separate occasions.
    4. Social Factors
81. The Defendant is a well-respected police officer and has worked for 37 years in Tonga Police and was a Sergeant.
82. The Defendant is a well-respected member of the community and;
83. A well-respected member of the LDS church of Houma.
    5. Conclusion
84. Given the mitigating factors, Defence submits for the Defendant a final sentence of 12 months’ imprisonment fully suspended for two years with conditions.
    
    50. DISCUSSION
85. 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.
86. It seems from the comparable cases that there is a general consensus in our courts for a starting point for serious indecent assault involving the touching of the breasts range from 12 months to 24 months. The gravity of the offence will determine the starting point for the sentence.
87. Although the fondling and sucking of the breast in this case is still a very serious offence, the acts of indecency involved in the comparable cases referred to above were more serious as some also included the touching of the vagina. The serious aggravating factors present in this case however is the breach of trust and the age disparity between the accused and the victim. There was no violence or threats involved.
88. I therefore set the starting point in this case at 18 months imprisonment;
89. I uplift the starting point by another 12 months for the aggravating factor of being in a high position of trust as the Acting Officer in Charge of the Neiafu Police station. As the officer in charge of the agency responsible for protecting its citizens, keeping the peace and ensuring the safety of the community, his actions served as an insult and an embarrassment to his workforce. He had blatantly abused his powers as a police officer to when he committed this offence. This takes the sentence to a total of 30 months or two and a half years imprisonment;
90. The accused shows no remorse and maintains his innocence despite being convicted. His position is contradictory to what his wife and brother had informed the probation officer, that is, he had confessed to them both that he did commit the offence he is charged with. The mitigation submissions filed on his behalf emphasized that he had apologized three times to the victim and her family. Those apologies do not count because the accused had pleaded not guilty and had denied that those apologies were because he was guilty but that it was to keep the family peace.
91. For the only mitigating factor available for the accused in having no previous convictions and for his service to the country prior to this conviction, I deduct 6 months which leaves a final sentence of two years imprisonment;
92. I suspend the last 12 months of the sentence for two years on conditions after the accused is released.
93. 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.
    
    13. RESULT
94. The Defendant Mu’a ki Faleula ‘Otuhouma is convicted and sentenced to two years imprisonment;
95. The last 12 months is suspended for two years on the following conditions:
    1. Not to commit any offence punishable by imprisonment;
    2. To report to his Probation Officer within 48 hours upon released from prison;
    100. He is to be placed on probation during the whole period of his suspension;
    4. To live where directed by his probation officer;
96. The accused is to serve 12 months imprisonment.
    

NEIAFU: 26 April 2024

‘E. M. L Langi
J U D G E