R v ZY (a pseudonym) [2024] TOSC 59; CR 170 of 2023 (21 August 2024)

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

CR 170 of 2023

BETWEEN:
REX
-Prosecution

AND:
ZY (a pseudonym)
-Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Appearances: Mrs T. Vainikolo for the Crown Prosecution
Ms H. Aleamotu’a for the Defendant
Date of Sentence: 21 August 2024

1. THE CHARGES

1. On 21 June 2024, the Defendant was found guilty of the following charges:
   1. Count 1: Indecent Assault on a Child, contrary to subsection 125(1) of the Criminal Offences Act.
   2. Count 2: Serious Indecent Assault, contrary to section 124(1)(2)(3)(5) of the Criminal Offences Act.
   100. Count 3: Serious Indecent Assault, contrary to section 124(1)(2)(3)(5) of the Criminal Offences Act.
   4. Count 6: Serious Indecent Assault, contrary to section 124(1)(2)(3)(5) of the Criminal Offences Act.
      

2. SUMMARY OF FACTS

2. The Complainant is a 11-year-old female from ‘Eua. At the time of the offending, she was 10 years old.
3. The Accused is a 41-year-old male residing in ‘Eua. The Accused is the de facto partner of the Complainant’s mother.
4. The first incident was around December 2021, the complainant was home with her two brothers and the Accused. Later at night the Accused laid the Complainant down in her bedroom, inserted his penis into her mouth and held her head still. The Complainant felt like she was going to vomit then the Accused took his penis out and massaged it.
5. The second incident was in 2023, the accused returned home and after dropping of the Complainant’s mother elsewhere and woke the Complainant up. He told her to go bring her some smokes from the vehicle outside. He then told her get into the back seat. The Accused took off his and her pants, then forced his penis into her mouth. He stopped when she was about to vomit. The Accused got her to lie down then he licked her vagina.
6. The third incident was in 2023, the Accused went with the Complainant and another person to their plantation. The Accused gave the complainant a piggyback ride into the plantation to pick some limes. He took off his pants and pulled her head to his penis and inserted it into her mouth. The Complainant stopped when the penis penetrated her throat. He then removed his penis and masturbated until he ejaculated.
7. Other incidents occurred in 2023 that the Complainant cannot recall dates for. One incident she recalled was when she went to use the toilet. The Accused suddenly barged in, took out his penis fully erect and penetrated the Complainant’s throat choking her. He pulled out after, fondled her breasts then told her to go to the living room where the others were.
8. On another occasion, the Complainant was bathing when the Accused opened the bathroom door and put a chair inside the bathroom. He sat her down on the chair, inserted his penis into her mouth and ejaculated into her mouth.
9. On the last incident the Complainant was home alone with the Accused after he had sent the others to the shop. He sat her down on a pile of laundry, took off his pants and forced the Complainant’s head to his penis. His penis was erect and was penetrating her throat as she choked. The others were returning home so he told the Complainant to go wash the plates.
10. The Complainant did not tell anyone until 21 July 2023. She disclosed the incidents to her aunty who then took her to the Women and Children Crisis Centre. They advised for the matter to be taken to the police.
11. On 24 July 2023, the Complainant’s statement was recorded with Police.
12. On 3 August 2023, the Accused was arrested by Police for the offending. He was interviewed on 30 August 2023 where he denied the allegations and exercised his right to remain silent.
    
    100. AGGRAVATING & MITIGATING FACTORS
13. The Crown submits the following as aggravating factors in this case:
    1. The Defendant was found guilty after a contested trial
    2. Protracted sequence of events
    100. Premeditation of the offending
    4. Serious breach of trust
    5. Seriousness of the offence
    6. Age disparity
    7. Lack of cooperation with the police
    8. Lack of remorsefulness
14. The Crown submits the following as aggravating factors in this case:
    1. No previous convictions (recommended before further submissions were made with previous convictions)
       

4. RELEVANT LEGISLATION

15. Indecent Assault on a Child contrary to section 125(1) carries a maximum penalty of imprisonment for any term not exceeding 7 years.
16. Serious Indecent Assault contrary to section 124(3) carries a maximum penalty of imprisonment for any term not exceeding 5 years.
    
    5. PREVIOUS CONVICTIONS
17. Crown later submitted after filing their sentencing submissions that the Defendant has two prior convictions in the Magistrates Court. These two offences were in relation to illicit drugs and took place in 2021.
18. The Probation Officer further submits that the Accused also several other previous convictions for drunkenness and being involved in a vehicle accident. According to Probation, in all these offences he received fines that have all been fully paid and confirmed by the Accused.
    
    6. SENTENCING COMPARABLES
19. The Crown submitted the following cases to assist the Court in determining an appropriate sentence for the Defendant;
    
    1. R v P.S (a pseudonym) TOSC 35; CR 27 of 2024 (4 June 2024)
20. Accused pled guilty to several counts of indecent assaults on a child. The assaults included kissing on the mouth, sucking her breasts and licking her vagina.
21. The following four cases for sentencing comparable were submitted by the Crown. The Court agreed with the Crown that a starting point between 3 to 4 years is appropriate to reflect the number of times the accused assaulted the victim.
22. The accused also exposed himself and masturbated on the victim. His actions were premeditated as he kept seeking out opportunities to give the victim money for what he did.
23. A starting point of 4 years imprisonment was set.
    
    2. Rex v Tevita Mafi Hia, CR 126 of 2023, 3 August 2022, Cooper J
24. Victim was 11 years old, and the Accused was 62 years old. He was found guilty of 6 counts of indecent assault (2 counts of indecent assault, 4 counts of serious indecent assault)
25. Indecent acts included fondling the breasts, touching and licking the vagina, rubbing the penis on the victim, forcing her to touch his penis and ejaculating on the victim’s vagina.
26. Starting point for indecent assault was 3 years increased by a year for masturbating and ejaculating in front of the victim. For serious indecent assault, starting point was set at 2 years increased by a year to reflect the aggravating factors.
    
    3. R v Mosese Latu CR 114 of 2022, Unreported, 15 June 2023, LCJ Whitten
27. Accused was charged with one count of indecent assault which involved licking of the vagina. A starting point of two and a half years was set.
    
    4. R v Motuliki, CR 55 of 2019, Unreported, 13 Janurary 2019, LCJ Paulsen
28. Accused was charged with indecent assault of a child involving licking of the vagina. A starting point of 2 years was set. One of the considerations by the court was that there was no exposure of the Accused’s genitals.
    
    7. VICTIM IMPACT REPORT
29. Counsel for the Crown interviewed the Complainant in person on 26 May 2024.
30. When the complaint was lodged last year, she moved and stayed with her aunt. Her biological father requested that she and her older sister come to Tongatapu to stay with him.
31. She is now currently form two at one of the government middle schools. She enjoys school and her new friends. At home she feels safe and is treated well by her stepmother.
32. In relation to the offending, she was emotional and did not want to talk about it. Her demeanour was similar to when she was giving evidence in court. The Complainant’s aunt even described observing her behaviour the first few months they lived together, it was clear she was traumatised from the offending.
33. The Complainant ceased contact with her mother, the Accused’s wife ever since the offending came to light. It has been difficult for the Complainant to cope without her mother’s support given her young age. Fortunately, her father stepped in to take care of her.
    
    8. CROWN’S POSITION ON SENTENCING
34. Considering the cited cases above, an imprisonment sentence is appropriate.
35. The Headcount is Count 1, Indecent Assault on a child with a maximum penalty of 7 years imprisonment.
36. The following starting points are submitted considering all the aggravating factors:
    1. Count 1: 4 years imprisonment (headcount)
    2. Count 2: 3 years imprisonment
    100. Count 3: 3 years imprisonment
    4. Count 6: 3 years imprisonment
37. Crown submit the Accused is entitled to a 10% deduction for mitigation which is 5 months.
38. Considering the principles in Mo’unga v R [1998] Tonga LR 154, his lack of previous conviction works in his favour (recommended before his previous convictions was further submitted in by crown), however the serious of the offence, lack of cooperation with police and diminution of culpability works against him. A suspension of 8 months of recommended.
39. The Crown submit the Accused be sentenced as follows:
    1. Count 1 Indecent Assault On a Child: 3 years, 8 months imprisonment
    2. Count 2 Serious Indecent Assault: 2 years, 8 months imprisonment
    100. Count 3 Serious Indecent Assault: 2 years, 8 months imprisonment
    4. Count 6 Serious Indecent Assault: 2 years, 8 months imprisonment
40. Sentences in count 2,3 and 6 are to run concurrent to the sentence in count 1 which is the headcount.
41. The final 8 months is suspended for 2 years on conditions
    
    1. PRESENTENCE REPORT
       1. Personal History
42. The Accused is the eldest out of six siblings, with most of his immediate family living overseas. Relationships at home growing up were reported to be good. He has grown up most of his life in ‘Eua.
43. He was previously married in 2004, the divorce was final in 2022 with 6 children between them in which he shares access to with his ex-wife. After the offences were revealed, he was no longer given access to the children.
44. He began a de facto relationship in 2018 with the Complainant’s mother. Together they have one child, and the Complainant’s mother has 3 children from her previous marriage which included the Complainant.
45. He belongs to the Free Church of Tonga and is described as an active member with the church and in youth activities. He is currently chairperson of the youth for a few years now and often organises fundraises to assist those less fortunate.
46. His secondary education began in ‘Eua at Hofangahau College for Form 1 and 2 and ended in Form 4 at Mailefihi College in Vava’u due to financial difficulties.
47. The Accused is talented in baking bread that is also favoured within the community. He is in good health, smokes cigarettes and likes to socialise in kava clubs. He previously used cannabis but quit in 2021 and does not drink alcohol.
48. He can earn up to $400 weekly from his plantation and from his baking sales.
    
    2. Factors Relating to the Offending
49. After being found guilty by the court, the Accused accepts the decision but maintains he is innocent that he never committed the alleged offences.
50. His stance is strongly supported the Complainant’s mother in refusing to believe the offences took place.
    
    3. Assessment
51. The Accused accepts the court’s verdict but maintains that he is innocent.
52. The Accused took advantage of the Complainant’s vulnerability to commit the offence and is premeditated in repeating the same offence between December 2021 to 2023.
53. The offending is a significant breach of trust and abuse of authority at the highest level as a father figure to the Complainant.
54. There is a previous conviction that seems unrelated to the current offences. The recent conviction in 2021 related to illegal drugs can be considered as an indirect factor in committing the offences.
55. No remorse is shown from the Accused for the offending.
56. He is a high risk to society given his sexual violent behaviour and the post traumatic suffering and shameful experience it has inflicted on the Complainant.
57. Protection of children especially young girls is crucial.
    
    4. Recommendation
58. It is recommended the Accused be given an imprisonment sentence and while serving his time in prison to undertake a religious course under Rev. Semisi Kava.
59. It is further recommended for the court to consider restricting the Accused from associating with children unsupervised.
    
    10. DISCUSSION
60. In R v H.I (a pseudonym) CR-VAV 7/2023, I had raised my concerns with crimes involving the sexual abuse of young children being on the rise and 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 Rex v Elevisi Mo'unga [2017] TOSC 13 (CR 3 of 2017, 13 July 2017), Rex v Sione Kalavi Lolohea, CR 58 of 2016 and Rex v 'Anitelu Fielau Maea. These cases were not cited by the Crown in their comparable cases above but are relevant to this current matter.
61. 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;
62. The Victim Impact Reports highlights the gravity of the harm that these offences have had on the victim. Fortunately for the victim in this case, she has the support of her father and stepmother and seems to be improving. However, she will continue to bear the stigma of what was done to her for the rest of her life;
63. Of major concern is the fact that the victim’s natural mother has decided to take the side of the Accused over her daughter. Their mother/daughter relationship has unfortunately come to an end over the actions of the Accused. This is common behaviour for partners of sex offenders. It is rather sad that the victims’ mother has chosen to blindly believe the Accused and has abandoned her daughter. Not only is the victim dealing with what her mother’s partner did to her, but she also has had to deal with her mother’s rejection and not believing her.
64. 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 victim and either waited for his wife to leave the house or waited for the children to fall asleep.
    2. Vulnerability of the victims – The victim was only 10 years during the first sexual assault. Because of her very young age, she was vulnerable and unable to fight back or protect herself;
    100. Position of trust - the accused was the victim’s stepfather. She would have obviously looked up to him to love and protect her from harm. Instead, he has unleashed anguish and nightmares on the victim and has caused her emotional and psychological harm
65. The Crown submits a starting point of 4 years imprisonment for Count 1 (Indecent assault on a child). In light of the comparable sentences outlined above and the cases I have referred to, I agree that this is an appropriate starting point;
66. There are no mitigating factors in favour of a reduction of the starting point or any mitigation plea that was filed with the on behalf of the Defendant. The Accused is not a first-time offender neither is he young.
67. For counts 2, 3 and 6, the Accused is sentenced to 3 years imprisonment on each count to be served concurrent to Count 1;
68. The final six months of the sentence in Count 1 is suspended for 2 years on conditions, to start from the date the Accused is released from prison;
69. 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;
    
    11. FINAL SENTENCE
70. Count 1 – the Accused is convicted of Indecent Assault on a Child and sentenced to 4 years imprisonment. The final six months is suspended for 2 years from the date he is released from prison on the following conditions:
    1. The Accused is not to commit any further offences punishable by imprisonment during his period of suspension;
    2. The Accused is to be under the probation once he is released from prison for the duration of his suspension;
    100. The Accused is to report to the probation office within 48 hours of his release from prison;
    4. The Accused is to live where directed by the probation officer.
71. Count 2 (Serious Indecent Assault) – 3 years imprisonment concurrent to count 1;
72. Count 3 (Serious Indecent Assault) – 3 years imprisonment concurrent to count 1;
73. Count 6 (Serious Indecent Assault) – 3 years imprisonment concurrent to count 1;
74. In agreement with the recommendation put forward by the Probation Officer, I hereby order that the Accused is restricted from associating with children under the age of 16 years old.
75. The Accused is to serve a total of 3 years and 6 months imprisonment. (sentence to be backdated to account for the 52 days he was remanded in Sainai, ‘Eua, from 21 August 2023 to 11 October 2023.
76. I further order that pursuant to section 119 of the Criminal Offences Act, the identity of the Complainant taken 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: 21 August 2024

‘E. M. Langi
J U D G E