R v H.B (a pseudonym) [2025] TOSC 3; CR 55 of 2024 (16 January 2025)

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

CR 55 of 2024

BETWEEN:
REX
-Prosecution

AND:
H. B (a pseudonym)
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs E Lui for the Crown Prosecution
Ms L Tonga in Person
Date: 16 January 2025

THE CHARGES

1. On 18 November 2024, the Accused pleaded guilty to the following amended charges:
   1. Count 1: Serious Indecent Assault, contrary to section 124(1), (3) & (5) of the Criminal Offences Act.
   2. Count 2: Serious Indecent Assault, contrary to section 124(1), (3) & (5) of the Criminal Offences Act.

CROWN SUBMISSIONS

2. The Crown filed their sentencing submissions on 15 January 2025 to assist the Court
3. Aggravating and Mitigating factors were submitted along with the following caselaw:
   1. R v Vea (Unreported, Supreme Court CR 251 of 2020, 25 January 2021, Langi AJ)
   2. Rex v Pousima CR8/2021
   100. Rex v Viliami Simoni (Unreported, Supreme Court, CR 137 of 2018, 7 December 2018, Paulsen LCJ)
   4. Rex v ZY CR170/2023
4. The Crown recommends a custodial sentence for the Defendant as follows:
   1. Count 1: 30 months’ imprisonment with the final 12 months suspended for 2 years on conditions
   2. Count 2: 18 months’ imprisonment concurrent to Count1

PRESENTENCE REPORT

5. A presentence report was filed from the Probation Office on 14 January 2025.
6. The report detailed the Accused’s upbringing, personal history and factors relating to the offence with their recommendation.
7. The Probation Office concludes their report in stating that a custodial sentence is inevitable given the circumstances and emphasizes the Defendant is the sole breadwinner for his family.
8. I take into account the contents of this report in considering the Defendant’s sentence

DISCUSSION

9. In essence it is suggested in Count 1 for Serious Indecent Assault that you rubbed the Complainants vagina and in Count 2 for Serious Indecent Assault that you licked and inserted your fingers into her vagina.
10. This is a case where the original charges included several counts of rape, the complainant resiled from her statement, where evidence was submitted on oath to the Court that the alleged incidents were all false. I must proceed on the basis of the evidence as it is before me now.
11. However, the fact remains that you were in a position of trust and although she struck me older than her years and a person who has had previous experience in sexual encounters, you must know that it was your duty not to succumb to any suggestions that may have been made and it was certainly your duty not to do what you did.
12. I accept that you are a man of previous good character, I accept that you do good work in the community, I accept that you are a valuable member of your employer’s team, and I also accept that you are the sole breadwinner of your family.
13. Nevertheless, it is impossible to ignore in your case a custodial sentence, but I am not persuaded that the comparable sentences helpfully referred to by the learned prosecution are applicable here.
14. In my view, Count 1 is set as the head count in which I take a starting point of 18 months and 12 months for Count 2.
15. Because of your guilty plea, which was late, but on the other hand it was done at a time where you were facing a much more serious charge, I discount 6 months from Count 1 and suspend 3 months on both Counts.
16. This leaving a remaining 9 months in each Count which is to be served concurrently to each other.

FINAL RESULT

17. For Count 1 on Serious Indecent Assault, I impose a sentence of 12 months imprisonment with the final 3 months suspended for 2 years on the following conditions:
    1. You must not commit any offence punishable by imprisonment
    2. You must report to the probation office within 48 hours of your release from custody
    100. You must complete a life skills awareness course at the direction of the Probation Officer within your 1-year suspension period.
18. For Count 2 on Serious Indecent Assault, I impose a sentence of 12 months’ imprisonment with the last 3 months suspended on the same conditions and concurrent to Count 1.
19. I further order in pursuant to section 119 of the Criminal Offences Act that nothing in these proceedings shall be published in a written publication to the public or be broadcasted in the Kingdom that shall reveal the identity of the parties.
    

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
NUKU’ALOFA
16 January 2025