R v G.Y (a pseudonym) [2025] TOSC 25; CR 237 of 2024 (14 March 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 237 of 2024

BETWEEN:
REX
-Prosecution

AND:
G.Y (a pseudonym)
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC
Appearance: Mrs T Vainikolo for the Crown Prosecution
The Defendant in person
Date: 14 March 2025

1. THE CHARGES

1. On 7 February 2025, the Accused pleaded guilty to the following charges;
   1. Count 1: Serious Enticement of a Child, contrary to section 116(1)(a) and (3) of the Criminal offences Act
   2. Count 2: Common Assault, contrary to section 112(a) of the Criminal Offences Act

2. CROWN SUBMISSIONS

2. On 14 March 2025, the Crown filed their sentencing submissions to assist the Court.
3. Aggravating and mitigating features were submitted along with the following caselaw in support;
   1. R v Vi [2021] CR 234 of 2020
   2. R v Sione Malupo CR 32 of 2024
4. The Crown recommended the following sentence, maintaining the same position in their indicative sentencing:
   1. Count 1: 24 months’ imprisonment
   2. Count 2: 6 months’ imprisonment concurrent to Count 1.
5. The final 12 months of the sentence is to be suspended for 12 months on conditions.
   100. PRESENTENCE REPORT
6. A presentence report was filed from the Probation Office 13 March 2025.
7. The report detailed your upbringing, personal history and factors relating to the offence with their recommendation.
8. You are at “low-risk” of reoffending given lack of previous convictions, your early guilty plea, the positive family support you have and the steps you have taken to address your alcohol abuse problems.
9. The Probation Office concludes their report by recommending a partially suspended sentence.
   4. DISCUSSION
10. You have pleaded guilty to 2 counts, count 1 of serious enticement of a child and count 2 for common assault.
11. The child in question being a little boy of four years old. The facts here are very strange indeed. You met the child in front of a neighbouring residence and carried him to an abandoned hut quite a distance away.
12. The child was crying and was obviously distressed and this alerted a sensible neighbour who saw you holding the child by his hair with one hand and repeatedly slapping his face with the other.
13. The neighbour in question implored you to stop, but you desisted and said falsely that it was alright because the child in question was your daughter.
14. Even if true why that permits you to assault the child I am puzzled to know. However, following numerous requests from the neighbour you handed over the child to him at the time the little boy was wearing a T-shirt and a diaper.
15. You were shortly thereafter arrested.
16. You admitted your offence, and you claimed that you mistook the child for your daughter. You accepted that you are assaulted the child by striking him on his face with his with your hands and you said to have expressed remorse, although you have made no apology to the victim’s family.
17. There is no evidence here of mental disorder. And so, I must sentence you as an adult who knew what he was doing and who when drunk behaved in this extraordinary way.
18. The effect on the child must have been horrific, to be dragged away as he was by you, an adult who knew what he was doing and then taken to a remote destination and assaulted as you admit you did would cause considerable fear which could well have long-term consequences.
19. I make it plain that while there is no evidence suggesting a sexual motive here, your motive is highly troubling. You must be taught a lesson, this is not behaviour which the Court in anyway can tolerate. A custodial sentence is inevitable.
20. The headline sentence is count one for which I sent to you to imprisonment for 3 years, from this I deduct 12 months to take account of your guilty pleas, but do not find any other mitigating factors.
21. On count 2 of common assault, 9 months is discounted by 3 months by reason of your guilty pleas. These sentences are to run concurrently.
22. To take account of your prompt acceptance of guilt. I have considered the question of suspension and I agree with the probation officer that you are at low risk of offending.
23. You do not have previous convictions but at 29 you ought to know better. I accordingly ordered that 12 months of your sentence be suspended for a period of two years, that is on condition that you be placed on probation, that you reside where directed by the probation officer, you abstain from consuming alcohol and illicit drugs and most importantly you do not associate with children under 12 years old other than your own children or family, and you must undergo a course of alcohol drugs awareness and other suitable counselling on violence as directed by the probation officer.
    5. FINAL RESULT
24. For Count 1 of Serious Enticement of a Child, I impose a sentence of 24 months’ imprisonment.
25. For Count 2 of Common Assault, I impose a sentence of 6 months’ imprisonment concurrent to Count 1.
26. I suspend the last 12 months of your sentence for a period of 2 years on conditions.
27. For the avoidance of doubt, I sentence you to a total of 12 months imprisonment, followed by 12 months suspended on 2 years on the following conditions;
    1. You must not commit any further offences punishable by imprisonment
    2. You must reside where directed by the Probation Officer
    100. You must not associate with any children under the age of 12 apart from your own children and family.
    4. You must not consume alcohol or use illicit drugs
    5. You must complete a drugs and alcohol course at the direction of the Probation Officer, together with any other course the Probation Officer deems appropriate.
28. I further order pursuant to section 119 of the Criminal Offences Act prohibiting any publication of any material that may lead to the identity of the complainant or the complainant’s family.
    

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NUKU’ALOFA

14 March 2025