R v S.R [2024] TOSC 87; CR 94 of 2024 (1 November 2024)

BETWEEN:

REX

-Prosecution

AND:

S.R

-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr G Aleamotu’a for the Crown Prosecution

Mr S Fili for the Accused

Date: 1 November 2024

THE CHARGES

1. On 12 July 2024, the Accused pleaded guilty to the following charge
   1. Count 1: Serious Housebreaking contrary to section 173(1)(b) and (5) of the Criminal Offences Act
   2. Count 2: Serious Indecent Assault contrary to section 124(1) and (3) of the Criminal Offences Act.
2. On 30 August 2024, after a contested trial, Acting Justice Langi found the Accused guilty of both counts.
3. This matter now proceeds to sentencing before me today on that basis.
   

CROWN SUBMISSIONS

4. The Crown included in their sentencing submissions filed 9 October 2024, a victim impact report, sentencing comparables and their position as to sentencing.
5. Aggravating and mitigating factors were also submitted with the following caselaw:
   1. R v Vea (CR 251 of 2020)
   2. Rex v Afeaki (CR 208 of 2019)
   100. Rex v Vaomotou (CR 96 of 2016)
6. The Crown submit their recommendation for sentencing as 21 Months for Count 1, and 33 months for Count 2 concurrent to each other with the final 12 month suspended on conditons.
   

PRESENTENCE REPORT

7. A pre-sentence report was received from the Probation Office on 21 October 2024.
8. This report detailed the Accused’s personal history, lack of previous conviction, the impact on the victim and their recommendation on sentencing
9. The Probation Officer recommended a partly suspended sentence on the conditions that the Accused is placed on probation, reside where directed by the Probation Officer, not to commit any offence punishable by imprisonment and to undertake counselling as directed by the Probation Officer.
10. I take the contents of this report into account in considering the Accused’s sentence.
    

DEFENDANT SUBMISSIONS

11. Counsel for the Defendant submitted sentencing submissions filed on 28 October 2024.
12. This was filed together with supporting letters from a member of Parliament, Parish Priest and a town officer.
13. Counsel submitted aggravating and mitigating factors along with the following caselaw:
    1. R v Afeaki (CR 208 of 2019)
14. The Defendant submits that a fully suspended sentence is warranted with conditions to complete community service hours.
    

DSCUSSION

15. This is a serious and distressing case. You have been convicted after a trial of serious housebreaking to section 173(b) and (5) of the criminal offences act and of serious indecent assault section 124(1) and (3) all that act. The facts of the offence are helpfully set out in the comprehensive verdict of Acting Justice Langi.
16. It is not necessary to recite the entirety of her findings. They are encapsulated at paragraph 89 of her ruling where the learned trial find to found that the complainant’s allegation “that he straddled her and pulled down her pants and put his head between her legs. He fondled and sucked her right breast” was true.
17. This was a serious assault occurred initially while the complainant was asleep. I have been provided with evidence to substantiate the distress which the complainant suffered and is still suffering includes counselling over a protracted period.
18. What is astonishing is that you are said to be a man of impeccable character. A worker in the church respected by all and apparently devoted to work amongst the youth of the church.
19. How someone of that character can behave as you did is incomprehensible. But the learned judge has found that is, in fact how you behaved.
20. A 55-year-old man in a trusted position sexually assaulted a 20-year-old, a member of the same church. This resulted as the parish priest has observed in disharmony among the congregation.
21. As the priest wrote, “there is a divided parish where parishioners are choosing sides because of what happened and building wars with determined minds and hearts unable to communicate and reconcile.”
22. I take into account the distress which this must have caused the complainant. I have paid careful attention to the letters of support from the Accused member of Parliament and town officer and the parish priest. I have also considered the crown sentencing submission and accept their assessment of the aggravating feature features set out at paragraph 5 of their report. I have also considered the guideline cases of R v Vea, R v Afeaki, and R v Vaomotou.
23. In my view the starting point for the serious and decent assault is 24 to 36 months. I take into account the fact that the complainant was asleep at the initiation of the assault and the fact that it occurred in her own home or it was her home at the time, and the fact that you have always denied the charges with a ridiculous assertion that the allegations were fabricated
24. This places the offending at the top of the starting point namely 36 months. Against that I must balance the previously impeccable charact, this enables me with regard to the guidance in Mo’unga to partially suspend the custodial part of the sentence by reason of your previous good character and the prospect that a suspended sentence would assist our rehabilitation.
    

FINAL RESULT

25. This means that for the charge of serious indecent assault, I sentence you to serve 18 months in custody with a further 18 months being suspended for 18 months on the conditions that:
    1. You do not commit any further offence punishable by imprisonment
    2. You are placed on probation during the period of the suspended sentence
    100. You must reside where directed by a probation officer
    4. You undertake suitable counselling as directed by the probation service
26. I find the appropriate sentence for the housebreaking count is 18 months’ imprisonment given that the intrusion did not result in substantial damage must be served concurrently with the count of serious indecent assault.
27. Finally, I’m make an order that nothing shall be published which might lead to the identification of the complainant herself, her family, her church or otherwise pursuant to s119 of the Criminal Offences Act
    

NUKU’ALOFA HON. MALCOLM BISHOP KC

1 November 2024 LORD CHIEF JUSTICE