IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION 	
NUKU’ALOFA REGISTRY                                                                          
CR 157 of 2023
REX
-v-
L (a pseudonym)

SENTENCING REMARKS

BEFORE:	HON. JUSTICE TUPOU KC 
Appearances:	Mrs. ‘E. Lui Mr ‘A. Fisi’iahi for Prosecution
	Defendant in person 
Date:	13 December, 2024.

Prohibition of Publication
1.	An order under s.119 of the Criminal Offences Act has been issued prohibiting the publication of any details or evidence in this matter that may identify the victim in any manner or form. That applies to this sentencing. 
The charges
2.	On 18 October 2024, the defendant was found guilty of the charge of rape, contrary to section 118(1)(a) of the Criminal Offences Act.
The Offending 
3.	The defendant, L is 37 years old who at the time of the offence was living in a de facto relationship with the victim’s mother. The victim F was 15 going on 16 at the relevant time and was living in the same house as her mother and the defendant amongst other family members. 
4.	It was late in the evening on 5 May, 2023, that the defendant returned to the home with 2 bottles of liquor. He gathered the group to drink the alcohol, including the victim, her two sisters, a brother-in law, V, a cousin and her friend, M. 
5.	At approximately between 1am – 2am, the victim’s mother woke up and chased the group to take the drinking elsewhere. They moved to a bush area around the area of the residential compound where they continued drinking.
6.	At around 3am – 4am, they finished drinking the alcohol. The defendant gave the victim’s cousin and M money to get more alcohol. The victim’s two sisters also followed their cousin and M, leaving the defendant, the victim and her brother in law, V behind.  
7.	V’s wife was with the group that left and he followed behind them up to the fence of the home where M was staying to look out for his wife as she was drunk. He remained in the bush and watched from there without entering the compound. 
8.	He got tired of standing and sat by a taro plant when he heard running. He then saw the victim run past him towards the fence to M’s house. She tried to climb over the fence but did not succeed. Then the defendant chasing after the victim slipped near him. The defendant was able to get up and continued to chase after the victim, running past him. 
9.	At the time the victim was trying to escape over another part of the fence and the defendant caught up with her and led her back to where they had been drinking. 
10.	V heard the defendant tell the victim to stay and drink with him. The victim repeatedly said she wanted to go to her mother but the defendant said to wait for the others to return with the alcohol. V followed them back to where they were drinking and saw no one was there. He thought the two had gone home. Then he heard the sound of the victim’s voice calling for her mother further on from their drinking spot. He followed her voice and saw them. 
11.	The victim was on her back naked from waist down. The defendant was kneeling between the victim’s legs holding them up and licking her vagina. He walked back to their drinking spot, undoubtedly shocked and then walked back to where the victim and defendant were. This time, he moved up and positioned himself about 1.6m from them and was able to see the defendant with his shorts down this time inserting his penis into the victim’s vagina and having sexual intercourse with her.  
12.	As for the victim, she recalled being chased by the defendant and being scared but could not recall why. She remembered the defendant calling her and telling her he would take her back to her mother. When he caught up with her and led her back she tripped and fell. She blacked out and did not remember anything further until she woke up and realised she was still in the bush. She found herself, lying on her back with the defendant on his knees facing her, zipping up his pants. She got up and ran home. She did not realise she was naked from waist down until she got to her mother’s house. 
13.	Her mother was angry with her, did not believe her and hit her. V and his wife stopped her and explained what happened to the mother. 
14.	The Defendant exercised his rights to remain silent.
Previous Convictions
15.	The Defendant has 1 previous conviction.
Crown’s Submissions
16.	The Crown considered the aggravating factors against the Defendant were:
a.	a verdict of guilty after a contested trial;
b.	the age of the victim;
c.	the seriousness of the offending, ie, taking advantage of the victim’s insensibility due to intoxication;
d.	breach of trust – as he was considered by the victim as her father;
e.	failure to cooperate with the Police;
f.	continuing to deny guilt; and 
g.	his previous conviction.
17.	The Crown submitted there were no mitigating features in favour of the Defendant.
18.	The Crown referred to the following comparable sentences:
a)	Rex v Sa’ili CR 18 of 2020 – the Defendant was found guilty of two counts of rape of his 13- year- old niece. The Court emphasized that the paramount sentencing considerations for crimes of serious sexual abuse are the protection of the vulnerable, deterrence, denunciation or condemnation of such behaviour and the punishment of those who commit such crime as in Rex v Langi [2013] TOSC 21 at [8]. The Court adopted a starting point of 8 years. That was reduced by 12 months leaving a balance of 7 years imprisonment. The final 18 months was suspended on conditions.
b)	R v H CR 169 of 2021 (Unreported, Supreme Court, 3 May 2023) – the Defendant was convicted after a jury trial for rape and two counts of serious indecent assault. The Defendant aged 62 lured the Victim aged 31 to his so-called office place to assist her with her loan request and instead committed the offending. The Defendant and the Victim’s parents were friends. The Court set a starting point of 8 years when considering these aggravating factors: of threats to kill, locking the victim in the property, choking her and repeatedly threatening her. Along with that, degrading acts of repeatedly licking her face after performing on her forced oral sex and the damage to her family life with her own parents, no less, people one should be able to trust and rely on her for life. As well as for attending her place of work to try pay her off. There was no mitigation and no suspension of any part of the defendant’s sentence was appropriate. 
c)	Francis Vaka v R, AC 30 of 2022 (Unreported, Court of Appeal, 6 October 2023) – the significance of this case was the adjustment of the sentencing tariff for rape. This was an appeal against the conviction and sentence of the Appellant on two charges of rape and one charge of indecent assault on his de factor step daughter, who was then 12 years old. The Defendant was sentenced to 10 ½ years’ imprisonment with the final 6 months suspended, imposed on 9 April 2021. The Court held that “the base starting point for a sentence on a single act of rape of a stranger in Tonga after a defended hearing is 5 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. 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. In this case, we endorse the trial Judge’s identification of the discrete aggravating features as being the age of the Victim (12 years); the prolonged suffering inflicted on her from multiple offences committed on her spanning some months, breach of his position of trust, power and authority, use of force on a child and opportunistic orchestration of the circumstances to ensure the Victim’s mother physical absence, the damage caused to the Victim and her mother from the Appellant’s lies to her, with her consequential alienation from family support and the ongoing harm to the Victim”. The Court held that the gravity of the Appellant’s offending is at the serious end of the scale. His culpability is high. An adjusted starting point of 10 years, the median between the base of 8 years and the maximum of 15 years is appropriate. The Criteria governing a suspension of a sentence are entirely discretionary. Some guidance was given in Court decisions before. The relevant factor to be considered in this case was “the need to reintegrate the Appellant into the Community after serving a long term of imprisonment without the availability of release on parole. Against that factor are those properly identified by the trial Judge. In the circumstances, a modest increase in the period of suspension of 12 months is appropriate”.
d)	Sosaia & Fine Maamaloa v Rex AC 4 of 2023 (Unreported, Court of Appeal, 5 October 2023) – similar to the above case, the Court of Appeal also adjusted the starting point in this case from 14 years down to 11 years to 12 years imprisonment. The Appellants, a married couple, were convicted and sentenced for very serious sexual offending including rape, abetment to rape, sodomy and serious indecent assault of the Victim, a stranger. The Court of Appeal allowed the appeal and considered that the starting point of 14 years imposed by the sentencing Judge was too high. An approximate starting point was 11 or 12 years and that starting point should have been reduced slightly to allow for the fact that the male appellant had no previous convictions. For each rape count, the appropriate sentence is 11 years and should be served concurrently with each other and with the sentences for serious indecent assault and abetment to serious indecent assault. It was also decided that some allowance for suspension should be made because the sentences imposed are severe in their length.
19.	The Crown submits that based on the offending and the relevant authorities cited, a starting point of 8 years was appropriate with a discount of 6 months for L’s lack of previous convictions for most of his 30 plus years, resulting in a final sentence of 7 ½ years’ imprisonment with the final 2 ½ years suspended for 3 years on conditions.

Victim’s Impact Report

20.	F is now aged 17 and is the 5th child of 9 children of the family. Her parents are separated and as mentioned her father moved and lived with a new partner in Australia. Her mother is currently in a de facto relationship with L. 
21.	After the offending, the victim moved to her grandmother’s at Fua’amotu. Her mother does not believe her daughter F, the victim. She told the probation officer that F is lying. She believes the defendant. This has caused a division in their family as some of her siblings also take her mother’s side. 
22.	The victim’s father flew in from Australia when he heard about the offending. He accompanied the victim to the trial. He is exploring the possibility of taking the victim and her younger sisters back to Australia. He does not trust them their mother will protect them given her stance in protecting her de facto partner against F. 
23.	F has found whole thing distressing and stated that having to give evidence at trial was traumatic. Her family is divided with some of her siblings taking L and her mother’s side against her. She felt sorry for her younger siblings that have to live with them. 
Pre-Sentencing Report

24.	The probation officer interviewed L, his de facto partner (the victim’s mother) and the town officer of Tokomololo. 
25.	L grew up in Vava’u and is the youngest of six children. Two of his siblings and mother are deceased, 2 live abroad and 1 sister remains in Vava’u with his father.  
26.	He attended Primary School at Hunga, Vava’u and moved onto Mailefihi & Siu’ilikutapu College at Neiafu. He dropped out of school at Form 4 due to financial struggles.
27.	In 2012, he married Melenau Taufa, of Holeva, Vava’u and had 3 children ranging from ages 3 to 10 years old. They separated and his wife left to Australia on the seasonal work scheme and he moved to Tongatapu, leaving his children behind who are cared for by his wife’s close relatives in Vava’u.
28.	He met the victim’s mother and they moved in together, living at Tokomololo. The Town Officer of Tokomololo said L does not attend village activities and is aware of his living in a de facto relationship in the town is frowned upon and considered by the community as unacceptable. 
29.	L since childhood is said to be subject to stomach problems but no proper diagnosis has specifically identified the problem. He smokes and consumes alcohol but has stopped since this offending.
30.	He is a mechanic and repairs washing machines. He is also employed by Paula Hafoka as a truck driver and earns about $900 a week.
31.	He attends church at the Christ Embassy Church of Tonga.
32.	The victim’s mother praise the defendant as a loving and caring partner and a good father figure for her children including the victim. She does not believe her daughter and claim she is lying. She believes L. 
33.	The Probation officer observed L to lack any remorse and continue to deny he committed the offence and recommends a custodial sentence. 

Defendant’s submissions

34.	The defendant told me this afternoon that he has provide for his children from his marriage and that his wife having gone on the seasonal work scheme abroad is not around anymore. His father is most likely the one to help them if he is imprisoned. He also told me about his stomach problems and emphasized that since he has been in custody the pain gave become more frequent. 
35.	He pleaded for mercy and for the first time said he now knows alcohol caused what occurred here and he promised that he will no longer use alcohol nor come to this court. 
Considerations 

36.	The maximum sentence for rape is 15 years imprisonment. 
37.	Adopting the Court of Appeal base starting point for a sentence on a single act of rape of a stranger in Tonga after a defended hearing in Vaka, I fix a starting point of 5 years imprisonment. 
38.	In Sa’ili the court considered the principles of protecting the vulnerable, deterrence, denunciation, condemnation and punishment of those who commit such crime. Here, in considering the aggravating factors noted by the Crown, the irreparable damage to the victim in terms of the rape, betrayal of her trust in the defendant as a father figure, his denial and its impact of further victimizing her by her  subjecting her to alienation and mistrust from her mother and other siblings, his taking advantage of her and forcing himself on her despite her repeated objection, the indecent assault committed prior to the rape and the consequential ongoing harm she will continue to suffer as a result of his crime, I lift the starting point by 3 years, resulting in a final sentence of 8 years imprisonment. 
39.	I strongly reject the negative comments against the victim made by her mother to the probation officer and her accusation that she was lying. She not only permitted 3 of her daughters including her 15-year-old to get drunk with her de facto partner but she also ensured they were out of her sight for the rest of the night. She was not present at the drink up or when the offending occurred and therefore had no basis to draw the conclusion that her daughter was lying. Her son-in-law saw everything the defendant did to her daughter and testified to that effect. She did not accuse him of lying. It is a miserable state of affairs when the protection of children and the vulnerable in the family is no longer priority in the home but are readily fostered to anyone who will spare them their attention, which in my view is what led to this offending.  
40.	L has a previous conviction for assault. I am unable to consider the Crown’s submission of a crime free life in the past 30 years to be a mitigating factor against his lewd and lascivious conduct to the 15 year old victim and his last minute half-hearted change of heart to admit his crime and show remorse. There are no mitigating factors in the defendant’s favour and I make no reduction in the final sentence. 
41.	I have considered his submissions and say that he ought to have considered his obligations to his family before this offending. 
42.	I have considered the comparable sentences and the need to take into consideration prisoners’ integration back into the community after serving a long term of imprisonment. For those reasons, I suspend the final 2 years of his sentence for a period of 3 years on conditions. 
Result 

43.	The defendant is convicted of rape and sentenced to 8 years imprisonment. 
44.	The last 24 months of the sentence is to be suspended, for a period of 3 years from the date he is released from prison, on condition that during the period of suspension, the defendant is to: 
a)	not to commit any offence punishable by imprisonment;
b)	be placed on Probation;
c)	report within 48 hours of his release to the Probation Services office for registration and thereafter as directed by his Probation Officer; and
d)	complete a course of alcohol, drug awareness and life skills as directed by his Probation Officer if available while he is in custody, or upon his release.
45.	Failure to comply with the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to complete the balance of his prison term.
46.	Subject to compliance with the above conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 6 years in prison.
P. Tupou KC 
Judge of the Supreme Court
NUKU’ALOFA: 13 December, 2024