R v H.S (a pseudonym) [2024] TOSC 40; CR-VAV 7 of 2023 (26 April 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NEIAFU REGISTRY

CR-VAV 7 of 2023

BETWEEN:
REX
Prosecution

AND:
H.S (a pseudonym)
Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Counsel S. ‘Eliesa for the Crown Prosecution
The Defendant in person.

Date of Sentence: 26 April 2024

1. THE CHARGES

1. On 26 February 2024, the Defendant pled guilty to the following charges:
   1. Count 1: Carnal Knowledge of a child contrary to section 121(1) of the Criminal Offences Act.
   2. Count 2: Carnal Knowledge of a child contrary to section 121(1) of the Criminal Offences Act.
   100. Count 3: Indecent Assault on a Child contrary to section 125 of the Criminal Offences Act.
   4. Count 4: Indecent Assault on a Child contrary to section 125 of the Criminal Offences Act.
   5. Count 5: Serious Indecent Assault contrary to section 124 of the Criminal Offences Act.
   6. Count 6: Serious Indecent Assault contrary to section 124 of the Criminal Offences Act.
      

2. SUMMARY OF FACTS

2. The Defendant is 42 years old. The complainant is the natural mother of the victims (V1, V2 & V3);
3. On unknown dates in the year 2021 the Defendant had carnal knowledge of his step-daughter (V2) who was still 10 years old giving rise to count 2 of the indictment. He also licked her vagina, giving rise to count 3 of the indictment;
4. On unknown dates also in the year 2021 the Defendant indecently assaulted his step-daughter (V3) who was still 12 years old at the time, by fondling her mons pubis area (count 5) and digitally penetrated her vagina with his finger (Count 6);
5. The complainant found a video in the Defendant’s phone showing him sexually abusing V3. She called V3 and asked her about the video;
6. V3 told the complainant everything the Defendant had done to her;
7. It also came to light that V2 was also being sexually abused by the Defendant around the same time;
8. The complainant confronted the Defendant and he confessed and admitted that it was true. However, he apologized and promised the complainant and V2 and V3 that it would never happen again. He was forgiven and as a result, the matter was not reported to the Police;
9. On an unknown date in June 2023, the Defendant sexually abused his biological daughter (V1) while she was only 8 years old. He also inserted his penis inside her vagina;
   
   1. Offence against V1
10. On or about July 2023, V3 noticed certain changes in her younger sister V1 and became suspicious that the Defendant was sexually abusing her. She spoke with V1 and asked her whether the Defendant was sexually abusing her. V1 confirmed that he was;
11. On 20^th July 2023, all three victims were at home with the complainant while the Defendant went to work. V3 told her mother that there was something that V1 wanted to tell her;
12. At first V1 did not want to tell her mother what the Defendant had done to her. After some coaxing, she finally told her mother of an incident where she had gone to watch the Defendant playing games on his phone. He had told her to go inside the bedroom while he followed behind. He had then taken a shirt and tied it around her eyes. Then he had removed her underwear and told her to lay down. He had licked her vagina. After licking her vagina he told her that he will put his penis inside her vagina and if she feels any pain then to tell him;
13. The complainant lodged a formal complaint with the Police and the Defendant was charged with all of the sexual offences committed against the three victims;
    
    2. First Offending against V3
14. In 2021, V3 was studying in Form 1 at Saineha High School. One Saturday, she was at home with the Defendant and the rest of her siblings. The complainant was not home.
15. The Defendant gave V3 and her siblings some biscuits before going into one of the bedrooms. He called V3 into the room. The Defendant took off her clothes and fondled her mons pubis area.
    
    3. Second offending against V3
16. One evening in 2021, not long after the first incident, V3 and her siblings were at home with the Defendant Their mother was not at home.
17. The Defendant called her into his bedroom and asked her to massage his back.
18. He then told V3 to lay down so he can massage her. She felt awkward and afraid as the Defendant proceeded to massage her back.
19. The Defendant then told her to lay on her back facing upwards. He positioned himself between her legs and took off her shirt leaving her breast exposed. He told her to close her eyes then proceed to suck on both of her breasts.
20. The Defendant continued to take her shorts off and put his hand inside her underwear and fondled her vagina. Just then one of the children yelled out ‘mommy is here’ and the Defendant abruptly stopped what he was doing and walked out of the room. Upon finding that it was a lie and that his wife was not at home, he returned to the bedroom and tried to take off V3’s underwear. He told her that he wanted to lick her vagina but V3 resisted and pushed him away and went out of the room.
21. V3 also recalls that on several occasions, whilst everyone was asleep at night, she would be awakened by the Defendant pulling her pants down. He would leave the room as he saw she was awake.
    
    4. Offending against V2
22. In 2021, V2 was then studying in Class 5 at the Fangatongo Government Primary School.
23. On an unknown day, V2 was at home with the Defendant and her younger siblings while her mother and V3 were away;
24. The Defendant called her to go and stay with her younger brother who was sleeping on a bed in the living room. She went and lay next to her brother when she suddenly felt the Defendant lay down behind her.
25. The Defendant asked her whether she wanted him to go to prison and she said "no". He then asked her if there was anything she does not want him to do to her, but she did not say anything at this point because she was scared.
26. The Defendant then removed V2’s shorts and underwear and took off his pants. He positioned V2 on her stomach, with the lower half off the bed and the upper part on the bed. He then inserted his penis into V2’s vagina.
27. He turned her over so that she was laying on her back, and then parted her legs and licked her vagina.
28. V2 did not tell anyone about the incident until the early part of 2022 when their mother found a video taken by the Defendant while he was sexually abusing V3. When he was confronted about the incidents, he apologised to his wife and to V2 and V3;
29. On or about 25 July 2023, the Police arrested the Defendant and conducted an interview and he voluntarily confessed to all the allegations against him in relation to V1.
30. On or about 27 July 2023, the Police continued with the Defendant’s record of interview, and he voluntarily admitted to the allegations made by V2 and V3;
    
    100. AGGRAVATING & MITIGATING FACTORS
31. The Crown submits the following as aggravating factors in this case:
    1. The offence here is highly serious with an even higher level of culpability for this type of offence. The Defendant carnally knew two of the young victims and indecently assaulted all three of them.
    2. Age of the victims. At the time of the relevant offending on each victim, V1 was 8, V2 was 10 and V3 was 12 years old;
    3. The Defendant was in a position of trust, as the victims’ father he grossly breached that trust and subjected them to gross indecencies.
    4. Each offence was premeditated. The Defendant waited for moments in which the Complainant was away from the house or when the victims’ siblings were asleep to commit these heinous acts.
    5. The Defendant sexually groomed V2 to normalise the inappropriate things he was doing to her.
    6. All victims will live with the emotional and psychological trauma commonly associated with these serious offending’s.
       
32. The Crown submits the following as mitigating factors in this case:
    1. The Defendant pled guilty at the earliest opportunity saving the court’s time and further emotional and psychological distress to the victims.
    2. The Defendant co-operated with the Police with a full confession of the crimes.
    3. No previous convictions
       
       4. RELEVANT LEGISLATION
33. The penalty for carnal knowledge of a child when convicted, is provided in section 121(1) of the Criminal Offences Act, is a term of imprisonment not exceeding life.
34. The penalty for indecent assault of a child when convicted, is provided in section 125(1) of the Criminal Offences Act, is a term of imprisonment not exceeding 7 years.
35. The penalty for serious indecent assault when convicted, is provided in section 124(3) of the Criminal Offences Act, is a term of imprisonment not exceeding 5 years.
    
    5. PREVIOUS CONVICTIONS
36. The Defendant has no previous convictions.
    
    6. SENTENCING COMPARABLES
37. The Crown submits the following cases to assist the Court in determining an appropriate sentence for the Defendant.
38. Carnal knowledge of a child
    1. Rex v Petuliki Lave (Unreported, Supreme Court, CR 31 of 2017, Cato J, 17 May 2017)
       1. The 22-years old Defendant pled guilty to one count of carnal knowledge of a child under the age of 12 years, contrary to section 121(1) of the Criminal Offences Act.
       2. The victim was 7 years old at the time of offending and had no familial relations with the offender.
       100. The sentencing judge considered that the appropriate starting point is 11 years imprisonment. This was reduced by 3 years to reflect the Defendant’s early guilty plea, first offender and his remorsefulness.
       4. Final sentence: 8 years imprisonment with the final 12 months suspended on conditions.
          
    2. Rex v Viliami Simoni (Unreported, Supreme Court, CR 137 of 2018, 7 December 2018, Paulsen LCJ)
       1. A 20-year-old Defendant pled guilty to 9 counts on the indictment. The most serious being carnal knowledge of a child (head count), contrary to section 122(1) of the Criminal Offences Act. The others were one count of simple housebreaking and two counts of theft at a different residence.
       2. The remainder of the charges are in relation to offending of when the Defendant had removed a 3-year-old from her home, whilst she was sleeping beside her mother. She was taken to an abandoned house where serious indecencies were performed on her by the Defendant including the contraction of gonorrhoea.
       100. On the count of serious indecent assault on child, in relation to the touching of the complainant’s vagina, the Defendant was sentences to 3 years to be served concurrently with the head sentence in which the offender was sentenced to 11 years imprisonment.
       4. On the count of abduction of a girl, which the judge considered was at the higher end of offending of its type under the circumstances, a sentence of 3 years imprisonment was imposed. This was cumulative on the head count, resulting in an overall sentence of 14 years imprisonment.
       5. The sentence was reduced by 3 years as mitigation for the defendant's lack of previous convictions and early guilty plea.
       6. The Defendant was sentenced to 11 years imprisonment, with the final 12 months suspended on conditions, for a period of 3 years.
          
    3. Elevisi Mo'unga [2017] TOSC 13 (CR 3 of 2017, 13 July 2017)
       1. The Accused pled guilty to a multitude of counts involving two counts of carnal knowledge of a child under the age of 12, two counts of rape, one count of incest, two counts of carnal knowledge of a young person, five counts of serious indecent assault and indecent assault, involving 7 victims.
       2. For the carnal knowledge of a child offence, the sentencing judge considered a starting of 10 years for Count 1 (Head sentence). But he uplifted the starting point to 15 years, taking into account the "carnal knowledge offending” in Count 2, the defendant was the victim's de-facto parent, and several other counts of indecencies inflicted against her. This sentence was reduced by 4 years for the defendant's guilty plea, lack of previous, expression of remorse in the witness box. He was sentenced to 11 years imprisonment.
       100. For the rapes, he was sentenced to 5 years imprisonment, four of which were to be served cumulatively to the carnal knowledge term. For the serious indecent assault counts, the sentences ranged from 12–15 months’ imprisonment, all served concurrently to the Head count/sentence.
       4. Total combined sentence was 15 years imprisonment, with the final 2 years suspended on conditions.
          
    4. Rex v Sione Kalavi Lolohea, CR 58 of 2016 (Cato J, 13 December 2016)
       1. The 39-year-old Defendant pled guilty to numeral sexual offences upon his stepdaughter (13 years old at the time), including four counts of rape, 16 counts of serious indecent assault and five counts of domestic violence. The offending included breaches of trust and threats to the complainant's life.
       2. Cato J determined an overall starting point of 12 years imprisonment for the "breach of trust, and several rapes all involving grave threats of violence which must have terrified the complainant."
       100. Due to the Defendant's guilty plea, remorse and being a first offender, the sentence was reduced by three years.
       4. The final 18 months of the resulting 9 years term was suspended on conditions.
          
39. Indecent Assault on Child
    5. Rex v Mikio Vi, (Unreported, Supreme Court, CR 234 of 2020, 8 June 2021, Whitten LCJ)
       1. The 22-years old Defendant entered a late guilty plea to one count of indecent assault on a child under the age of 12 years, contrary to section 125 of the Criminal Offences Act ("Act") and one count of serious enticement of a child, contrary to section 116(3) of the Act.
       2. In this case, the Defendant carried away the 4-years old victim from her house, and sexually assaulted her at a small house at Nukunuku. There the Accused exposed himself to the victim, kissed her mouth, placed his hand on her vagina and inserted his finger.
       100. The sentencing judge considered that the appropriate starting point is 3 years imprisonment and had increased it to 4 years because of violence involved and the lasting damage to the victim.
       4. The sentence was reduced by 6 months on account of the Defendant's late guilty plea and previous clean record.
       5. Final sentence - 31⁄2years imprisonment (Count 1) and 2 years imprisonment on Count 2) to be served concurrently with count 1. Final 12 months of the sentence was suspended for a period of 2 years, on conditions.
          
    6. Rex v Peni Halai (Unreported, Supreme Court, CR 79 of 2017, 1 February 2019, Cato J)
       1. The Defendant was convicted on 9 counts on the indictment, of which three counts (Count 5, 6 & 7) were indecent assault on a child under the age of 12 years. The offending was against two child complainants, aged 10 and 13.
       2. The particulars of those counts were i) insertion of the penis in the complainant A's mouth (Count 5); (ii) licking complainant A's vagina (Count 6); (iii) fondling B's vagina (Count 7).
       100. The Defendant was sentenced to 4 years imprisonment (Count 5); 2 1⁄2 years' imprisonment (Count 6) and 18 months’ imprisonment for Count 7. These sentences were to eb served concurrently with the head count (sodomy), of which the defendant was sentenced to 6 years and 3 months imprisonment. The final 15 months of the overall sentence was suspended on conditions.
            
    7. Rex v 'Anitelu Fielau Maea (Unreported, Supreme Court, CR 185 of 2019, 2 December 2020, Cato J)
       1. The Defendant was convicted one count of indecent assault on a child under the age of 12 (Count 1) and one count of sexual domestic violence (Count 2). The defendant was the stepfather of the 11-year-old complainant. Whilst the young girl was sleeping, he touched her private parts, by putting a finger inside her vagina.
       2. The defendant was sentence on count 1to one year and 9 months imprisonment and 6 months imprisonment on count 2 to be served concurrently to count 1.
          
    8. Rex v Polikapi Motuliki (Unreported, Supreme Court, CR 5 of 2019, Paulsen LCJ, 13 January 2019)
       1. The 56-year-old defendant pleaded guilty at arraignment to one count of indecent assault on a child. The offending was in relation to the Defendant fingering and licking the 5-year-old victim's vagina.
       2. The sentencing judge considered a starting point of 2 years imprisonment was appropriate in this case, having considered that aggravating features of the victim's age and the gross breach of trust and the lack of premeditation, no suggestion of prior grooming on the victim, no violence beyond the indecent acts, no touching of the victim with the defendant's genitalia or exposure of his genitalia and the offending was not protracted.
       100. For the Defendant’s full cooperation and previous good character, 3 months of the sentence was discounted, resulting in 16 months’ imprisonment sentence.
       4. The last 8 months of the 16 months’ imprisonment sentence was suspended on conditions for a period of 2 years.
          
    7. PRE-SENTENCE REPORT
40. Personal History:
41. The Defendant is the eldest of his parents 6 children and his parents both passed away when he was a child. The Defendant was taken into his maternal aunt’s custody in Ha’atu’a, ‘Eua then later to his parental uncle at Vaini for secondary school at Liahona. He is also estranged from his siblings.
42. The Defendant travelled to New Zealand in 2006 on a rugby tour representing ‘Eua. He travelled again in 2010 to represent a Navutoka Kava Club to Australia. The Defendant met his wife in 2013 when they both worked for Emerald Chinese Restaurant. In September of that same year that got married and moved a year later to Talau, Vava’u where they have been until the offences were revealed.
43. The couple have 6 children altogether, the eldest two are the complainant’s daughters from a previous relationship and they are V2 and V3. Their youngest has a disability and requires special care, the rest of the children all attend school.
44. According to the Defendant the marital relationship is good. However, the complainant explains that the Defendant has a controlling nature. The Defendant dislikes if she dresses the way she prefers and restricts her to socialise with friends on any occasion she attends.
45. The Defendant belongs to the Mormon church but is hardly involved in any of the activities or Sunday services. Town Officer Lapota also confirms that he knows of the Defendant, but he is never involved in any of the community activities.
46. For Education, the Defendant attended primary school in ‘Eua, secondary school in Liahona then left school in 1999 after taking technical training courses in carpentry.
47. For Health, the Defendant had a minor heart problem and takes medication as treatment. The Defendant smokes and likes to drink at home especially in the weekends, and he does not like to socialise often with other people. In his free time, he prefers to stay home.
48. The Defendant is the main breadwinner for his family, earning a weekly income of $400 per week as a carpenter under Mr.V. The family have other income through selling homemade baking products by the married couple and can earn up to $500 per week. They also have a weekly loan repayment of $300 with SPPD, total load balance being about $6,000.
    
49. The Defendant’s Version of the Offence:
50. He admitted to the offences and accepted the summary of facts provided except for any threatening behaviour being shown to the victims at that time. Prior to the incident, he was driven was sexual arousal and committing the crimes was to satisfy his sexual desires. When put to the Defendant why you committed these acts against his own daughters he stated, “I don’t know why I did the crime.”
    
51. Victim’s Account of the Offence:
52. The complainant explained that most days their routine involves getting the children ready for school before leaving around 8am to a weaving group. She would not return until 5-6pm and some days the Defendant arrived home earlier;
53. One day she looked at the Defendant’s phone and saw a video of V3. This raised suspicions and she called V3 to ask her about it. V3 then broke down and explained how the defendant has sexually abused her three times when the complainant was not at home.
54. The Complainant called V2 who also explained the sexual acts committed on her by the Defendant;
55. V3 told her mother that she was threatened by the Defendant not to tell any of the things he had done to her. She was also afraid that her mother would be quite angry with her.
56. After the second time the Defendant committed sexual acts on her, she confided in V2 but her sister did not believe her. After the third sexual attack on V3, the victim V2 finally spoke up and told on the Defendant. She had been too scared to tell and thought that her mother would be angry with her. The Defendant had also told her that if she told anyone the police would come to take him away and that would be sad for their mother;
57. The complainant confronted the Defendant and he immediately admitted to it and apologised to his wife and asked for forgiveness. The family reconciled and the Defendant promised not to do it again, no further complaint was made to the police.
58. A year after the family reconciled, V1 told V3 that the Defendant had done bad things to her.
59. V1’s teacher and school principle stated that V1’s performance is below average. They noticed that she was having problems concentrating and was easily startled. She is not properly supported with her studies from home, with often doesn’t come to school with lunch. V1 is late to school a lot of times and is always absent each week. Last year in 2023, the school recorded a significant amount absentee, even up to 3 weeks at one point. The complainant explained the reason was due to family problems. Both school staff concluded this was an indicator of the Defendant’s impact of his offending.
60. The Defendant has expressed remorse over what he did and asks the court for leniency and mercy.
    
61. Summary:
62. The Defendant is now 43 years old, a husband, father, and local resident at Talau. He has six children from ages 5-15 years old and all live together. The Defendant had an unstable upbringing since his parents died and was eventually separated from his siblings.
63. Prior to getting married, the Defendant was seen and recognised to be a good citizen involved in rugby and raising funds overseas for his community.
64. The Defendant was regarded for having a traditional household and as the head of his family in his role as husband and father. He was trusted by his family and relied on him for love, care, and protection. In committing these offences, he has turned his back on the traditional roles and responsibility. It is disgusting, shameful and very damaging for the family relationships and reputation.
    
65. Assessment:
66. The Defendant pled guilty to six counts of sexual offences to three young female children.
67. He is a first-time offender with no previous record of committing crimes.
68. The Defendant took advantage of the victims’ vulnerability to commit the offence. The offending was premeditated as he repeatedly committed the acts when his wife was away.
69. The behaviour exhibited from the Defendant is a significant abuse of authority and breach of trust at the highest level. He repeatedly committed the offences to his own children. He also has a background of controlling behaviour against his wife which directly impacts his pattern of threatening the victims after he commits the offence. It is a common manipulation tactic used by sexual offenders like the Defendant to allow them to keep doing the same thing with no consequences.
70. The repeated pattern of the sexual offending and his manipulative behaviour exhibits a lack of remorse and his acts resulted in trauma and shame on the victims making him a very high risk for society.
    
71. Recommendation:
72. The Defendant be given a custodial sentence and while serving his time in prison do the following:
    1. A counselling course with Rev. Semisi Kava
       
73. It is also recommended for the court prohibit the Defendant from being left alone with children unsupervised.
    
    8. REFERENCES SUBMITTED ON BEHALF OF THE ACCUSED
74. The court received several references on behalf of the Defendant. One from his wife and three from community leaders including an assistant bishop and a town officer to name a few.
75. These references were checked due to the nature of the offence and the contradicting recommendations provided in the letters, for example “he is a good and loving father, and a family man.”
76. Two of the references retracted their letters when they were made aware of the offences the Defendant pled guilty to and the nature of the offences.
77. I note these references in considering the Defendant’s sentence.
    
    1. CROWN’S POSITION ON SENTENCING
78. The Crown echoes the sentiments of this Court in 'Elevisi Mo'unga regarding the sentencing principles of sexual offences involving children, where Cato J stated at paragraph [11] of his Sentencing Remarks:

"Plainly, a significant starting point is required in cases where young children are involved (consistently with Parliament's intention by the provision of a maximum sentence of life imprisonment) to deter and denounce predatory sexual conduct, and to protect children."

79. The Crown further submits that the comments made by the Court of Appeal in Francis Vaka v Rex, AC 30 of 2022, in respect of the modest sentences imposed by the Courts in cases of sexual nature, are instructional for the purposes of this sentence. At paragraphs [21] - [22] the Court of Appeal stated:

[21] “This appeal must be approached in a principled way. The base starting point for a sentence of a single act of a rape of a stranger in Tonga after a defended hearing is five years imprisonment, which necessarily reflects the aggravating features inherent in the offence itself. As others have observed, that base is modest compared with some other jurisdictions, but his is not the occasion to revisit it.

[22] An adjustment to that base is then necessary to take account of additional features which might aggravate the discrete offending, reflecting its totality, gravity, and the offender's culpability. That evaluative exercise is of an intensely fact specific nature. Previous sentencing decisions are of limited assistance given the inevitable range of factual variables. At best, they can serve as a comparative touchstone....”

80. Head Sentence
81. It is submitted that the head sentence of the overall offending is Count 1, i.e. carnal knowledge of an 8-years-old child.
82. Considering the comparable provided above, the most similar to this case is 'Elevisi Mo'unga, which involved several victims, sexual offending counts and a gross breach of trust by a de-facto parent. Those same aggravating factors are applicable in this case, but further compounded by the fact that the First victim is the Defendant’s own biological daughter.
83. In line with the position of the Courts in the preceding paragraphs, the Crown submits that the appropriate starting point for the offence of carnal knowledge of a child should be 14 years imprisonment.
84. Due to the mitigating factors, it is submitted, the sentence be reduced by 2 years and 6 months, thus resulting in a sentence of 11 years and 6 months imprisonment for Count 1.
    
85. Sentences of other Counts
86. In respect of Count 2, which is another carnal knowledge offence against the Defendant’s 10-year-old stepdaughter V2, the Crown submits the Defendant should be sentenced to 14 years’ imprisonment, reduced by 2 ½ years for mitigation, thereby resulting in a sentence of 11 ½ years' imprisonment.
87. The Crown submits that the appropriate starting point for the offence of indecent assault of a child, should be 4 ½ years' imprisonment, with 18 months deducted for mitigation. The resulting sentence for Counts 3 and 4 are 3 years imprisonment each. The Crown submits that the appropriate starting point for Count 5 - serious indecent assault should be 3 ½ years imprisonment, 12 months for mitigation.
88. The Crown submits that the appropriate starting point for Count 6 - 4 years imprisonment, reduced by 21 months for mitigation.
    
89. Totality
90. The Crown submits that the offences in respect of Counts 2 and 6 are separate crimes for which, subject to the totality principle, partial cumulative punishment is appropriate. It is submitted that 3 years from Count 2 be served cumulatively to the Head sentence (11 1⁄2years) and a further 18 months from Count 6 should also be served cumulatively to the Head sentence. This makes a total aggregate sentence of 16 years imprisonment.
    
91. Suspension
92. It is submitted that the Defendant is entitled to partial suspension as he qualifies under

three of the principles in Mo'unga v R (1998) Tonga LR 154, which are i) previous good record; (ii) there is a serious likelihood that the Accused will take the opportunity offered to rehabilitate himself; (iii) he co-operated with the Police; and (iv) pleaded guilty at the first available opportunity.

93. It is submitted that the final 2 years of his sentence is suspended for a period of 2 years on the following conditions:
    1. The Accused is not to commit any offences punishable by imprisonment during the period of suspension.
    2. Report to the probation office with 48 hours, after being released from prison.
    100. He is placed on probation for the period of suspension and is to live where directed by his probation officer.
    4. He is to attend and complete a course at the direction of probation:
    5. A course on sexual abuse; and
    6. A course on drug and alcohol abuse.
       
94. Considering the comparable sentences, and the mitigating and aggravating factors against the Accused, the Crown leaves to the discretion of the Court to determine the appropriate sentence.
    
    10. VICTIM IMPACT REPORT
95. Two of the victims, V2 and V3, are the Defendant’s stepdaughter and V1 being the Defendant’s biological daughter.
96. V1 does not fully understand the nature of the offence and V3 was hesitant to be interviewed due to embarrassment. Their mother then spoke for them on their behalf, whilst the second victim was able to speak about her experience of the offending.
    
97. Interview with V3:
98. At the time of the offence, she was 12 years old, she recalls all the incidents clearly but prefers not to dwell on them yet is forced to relive those moments as people often talk about it. She further states feeling deep embarrassment, especially when she had to visit the police station and gets questioned about the offences.
99. When she recalls the offences, she feels hurt, uncomfortable, disturbed, and sometimes worthless with a sense of self-loathing. Talking about the incident only causes more hurt and she prefers not to speak about it.
100. The offences had significantly affected her studies throughout the past year, it took a toll on her mentally, and made her struggle to focus on her schoolwork. She missed school often because of the police station visits and travelling between Tonga and Vava’u.
101. Since the offending, she avoids eye contact and tries to avoid any notice because of the ridicule. She has trouble sleeping because the offending often keeps her awake, and often feels lonely and isolated with her mum being the only person she can confide in.
102. But, she has forgiven the Defendant and states she feels better as long as she doesn’t think about the offending.
     
103. Interview with the Compainants’ mother:
104. The first victim in 9 years old now, she was 8 when the offending occurred.
105. The third victim is 11 years old now, she was 9 when the offending occurred.
106. The victims are sisters and live with their mother.
107. The daughters seemed fine initially after the incident and she paid closer attention to them all especially when they seemed withdrawn.
108. V 2 and V3’s behaviours changed, often zoning out and quiet due to the mental impacts of the offending. The complainant states that she talks with them to provide emotional support, and always tried to engage them in conversation.
109. The daughters have mentioned being mocked about the offending making them embarrassed, especially for V3.
110. V2 did not want to attend school last year because she was embarrassed and her concern for her mother’s feelings when people talk about the offending. A further impact on the daughters is school attendance resulting in lower grades because of the frequent police visits, and trips to Tongatapu from Vava’u.
111. V3 was suspended for a week because the bishop visited her school to discuss the offending that led to assumptions about her behaviour. This resulted in peer ridicule making V3 embarrassed and would come home worried.
112. V1 remains unaffected as she’s too young to understand.
113. The offending made it difficult for the complainant to manage the family with their living situation causing her to stress often. The family have forgiven the Defendant, but they are certain things cannot go back to the way they were. The family is happy even in the absence of the Defendant.
     
114. Concluding Remarks:
115. The Defendant severely breached the trust of the young victims, as their father. There is evidence of the emotional, psychological, and social impacts on the victims, especially V2 and V3. It has affected their school, and health with V3 suffering from insomnia and a drop in her grades and V2 being hesitant to go to school from being embarrassed.
116. Although the complainant has stated that they forgive the Defendant, they are still affected by the offending as it resurfaces whenever it’s mentioned demonstrating just how traumatised the Complainants are.
     
     11. DISCUSSION
117. Crimes involving the sexual abuse of young children is on the rise and is becoming all too common in Tonga. Of concern is the fact that most of these crimes are committed by persons who were in a position of trust, ie. Fathers and step-fathers as happened in Mo’unga, Lolohea and Maea above. I believe that a message must be conveyed to sexual offenders and would-be sexual offenders that the courts will no longer tolerate such atrocious crimes against the most vulnerable in our communities – innocent children who are unable to fight back and defend themselves from sexual predators. It must end now;
118. This case is, unfortunately, a very clear illustration of the importance of reporting sexual abuse as it may disrupt future sexual attacks. He had not been reported after sexually abusing his two step-children in 2021 because he had apologized and promised not to do it again. The consequences of the failure of the children’s mother to involve the criminal justice system is that the accused was given an opportunity to strike again. This time, the victim was his own biological child. Had the accused been reported when he was first caught sexually abusing his two step-daughters, it is highly unlikely that his 8 year biological daughter would have gone through what she did in the hands of her father. I cannot imagine the amount of physical and emotional pain this child has had to endure because of the pressure of ostracism by the community;
119. The Victim Impact Reports filed by the Prosecution clearly demonstrates the profoundness of the harm that these offences have had on the victims, particularly the psychological problems and restrictions on the ability of the victims to go about their daily lives. They will continue to bear the stigma of what was done to them for the rest of their lives despite having had nothing to do with the offences against them. It is extremely saddening that the victims have had to endure ridicule and embarrassment due to the actions of imprudent individuals such as the bishop referred to in the Victim Impact Report. There has been no counselling or support provided and I can only imagine the trauma the offending will have on them if they are not addressed by professional counselling and assistance.
120. The starting points for cases referred to by the Crown involving carnal knowledge of a child by persons in the position of trust (step-fathers’) is 15 years for Mo’unga (10 years uplifted to 5 years due to there being two charges of carnal knowledge); 12 years for Lolohea where the victim was 13 years old. In Lave, the starting point was 11 years which involved carnal knowledge of a 7-year-old child who was unrelated to the accused. From these cases, a starting point of between 10 years to 15 years would seem appropriate. The Crown recommends a starting point of 14 years.
121. The Courts have a duty to protect our children from sexual predators and to ensure that the punishment is proportionate to the crime. The maximum penalty for rape is 15 years. Carnal knowledge of a child involves the same (inability to consent) or even more serious culpability than rape of an adult. The maximum penalty in s121 of imprisonment for any period not exceeding life suggests that Parliament intended this crime to be punished more severely than rape of an adult. However, the huge range available for section 121 must be informed by the individual circumstances and the seriousness of the offending in each case as well as principles of parity.
122. The individual circumstances of the accused in this case are, in my view, at the very top of the scale in terms of seriousness. Some have been highlighted by the Crown in the aggravating factors:
     1. Planning and premeditation – Sexual violation of an impulsive nature, although still serious, will generally be less so than that involving grooming of a child, taking steps to get the victim alone, and giving the child sweets or money with a view to offending, and other predatory behaviour. In this case, the accused planned his assaults on the victims and either waited for his wife to leave the house or waited for the children to fall asleep.
     2. Vulnerability of the victims – All three victims were under the age of 12 at the time they had been sexually assaulted. Because of their very young age, they were vulnerable and unable to fight back or protect themselves;
     100. Position of trust - the accused was the stepfather of the second and third victim and the biological father of the first victim. They would have obviously looked up to him to love and protect them from harm. Instead, he has unleashed anguish and nightmares on the victims and has caused them emotional and psychological harm
          
123. Further to the aggravating factors outlined by the Crown above, the following are also serious aggravating factors that, in my view, also needs to be highlighted and addressed for these type of cases:
     1. The physical harm to the victims - The accused’s biological daughter told her mother that she felt pain when the accused had inserted his penis into her ‘bottom’. There is no mention in the summary of facts of any pain being felt by Fa’aea Pulini (victim of Count 2) but it goes without saying that she would have felt pain in having been made to bend over the bed while the accused inserted his penis inside her vagina. Given that she was only 10 years old at the time of the offence, she would have obviously felt agony in having an erect penis being inserted into her most private and still very delicate vagina. Her genitalia were nowhere near matured enough to accommodate the penis of a full-grown man and she would have suffered major discomfort and soreness;
     2. The degree of violation – Although the Crown refers to the degree of seriousness of the offending as being at the higher level of culpability for cases of this kind, no mention was made of the degree of violation. In my view, this is an important factor because seriousness increases as the degree of violation increases, for example, the use of a finger instead of a fist, or a very brief penetration as opposed to a lengthy assault. Although the degree of violation in this case may fall under being a brief penetration, the fact that it was on a very young minor (8 years old) makes the degree of violation in this case that more serious.
     100. Scale of the offending – The fact that there are multiple victims, particularly in the familial context, is another aspect which increases the culpability of the accused and warrants a higher starting point. In addition, the accused committed the offences over a prolonged period of time and the act of taking videos of the sexual abuse against V3 upsurges the seriousness of the offending;
124. For the reasons outlined above and consistent with Mo’unga, I set the starting point for Count 1 (carnal knowledge of V1) at 15 years imprisonment. For count 3 (Indecent assault of V1) the Defendant is sentenced to 2 years imprisonment to be served concurrent to Count 1;
125. For Count 2 (carnal knowledge of V2) 15 years imprisonment and Count 4 (indecent assault of V2) the Defendant is sentenced to 2 years imprisonment concurrent with Count 2;
126. Because the offending in Count 1 and 2 involve separate victims and times, I order that 7 years from the sentence in Count 2 is cumulative to the sentence in Count 1. This makes a total of 22 years imprisonment;
127. For counts 5 & 6 (indecent assault on V3) the Defendant is sentenced to two years imprisonment on each count making a total of 4 years to be served concurrently. Because V3 was also a separate victim, I order that 2 years from this sentence is added cumulative to Count 1 (and 2). This adds up to a total of 24 years imprisonment;
128. I deduct one third off the final sentence for the mitigating factors of early guilty plea and having no previous convictions. The end result is 16 years imprisonment;
129. I further suspend the final two years of the final sentence for three years from the date of his release;
130. This sentence is not only to punish the offender but to also reflect public disdain for sexual assaults on children and to serve as a deterrent for would-be offenders;
     
     50. Result
131. The accused is sentenced to 16 years imprisonment. The final two years is suspended for three years from the date of his release.
132. Pursuant to section 119 of the Criminal Offences Act, I direct that the identity of all parties taken in these proceedings shall not be published in the Kingdom in a written publication to the public or be broadcast in the Kingdom.
133. The Defendant is ordered to be removed from Vava’u and serve his sentence in Tongatapu at Hu’atolitoli Prison.
     

NEIAFU: 26 April 2024

‘E. M. Langi
J U D G E