R v D.K (a pseudonym) [2025] TOSC 65; CR 89 of 2025 (28 July 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 89 of 2025

BETWEEN:
REX
-Prosecution
AND:
D. K (a pseudonym)
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs E Lui & Mr L Vaea for the Crown Prosecution
The Defendant in person
Date: 28 July 2025

1. THE CHARGES & BACKGROUND

1. On 23 June 2025, the Defendant pleaded guilty to the following charge;
   1. Count 1: Rape, contrary to section 118(a) of the Criminal Offences Act when on an unknown date in November 2024, you inserted your penis into her vagina, against her will.
2. The victim is the sister of your wife. She was 17 years old at the time of the offending, and you were 22 years old. The facts here are disturbing. In November of last year, you were sharing a room with your wife and the Complainant who was asleep when you returned from drinking kava and sneaked over to the Complainant and pinched her hand to wake her up and then fondled her breasts and raped her. On this occasion your wife apparently continued to be asleep.
3. On another occasion in December last year, the same thing happened where you pinched the Complainant’s hand and when she told you to go to sleep you held her down on the bed. She struggled and the noise woke up your wife and she wanted to know what was happening and you then blamed the Complainant before finally admitting your wrongdoing
4. The Complainant told her mother about the offending on 23 December 2024. On this same day a complaint was lodged with Police.
5. After, the Complainant underwent a checkup at hospital in December with the result that she was in the first trimester of pregnancy
   
   2. CROWN SUBMISSIONS
6. The Court received sentencing submissions from the Prosecution on 27 July 2025 to assist in determining an appropriate sentence.
7. Aggravating and Mitigating factors were submitted along with the following caselaw in support;
   1. Sosaia & Fine Maamaloa v Rex AC 4 of 2023
   2. Francis Vaka v Rex AC 30 of 2022
   100. Rex v Funaki [2024] TOSC 111
8. A victim impact report was also included in which it was confirmed that the Complainant gave birth to the child early this month and continues to emphasise that she did not consent to the offending. The Complainant’s parents have noticed that she have become more withdrawn and distant, but they will be taking primary care of the child so that the Complainant can go back to school and complete her education. The Accused in no way has provided any support for the child or has offered any apology to the Complainant since the offending occurred.
9. In this case, the Crown recommended for Count 1, 8 years imprisonment with the final 2 years suspended for 2 years on appropriate conditions.
   
   100. PRESENTENCE REPORT
10. On 25 July 2025, a report from the Probation Office was filed where I was told further details about your upbringing, personal history and your version of the offending stating that it was consensual.
11. You have expressed no remorse as to what you did according to the Probation Officer.
12. The Probation Officer leaves it to the Court is determining an appropriate sentence.
    
    4. DISCUSSION
13. I am quite satisfied that you are responsible for the Complainant’s pregnancy and that you must have had unprotected sex with the Complainant in November. This is a serious aggravating factor as is the fact as I find it to be, that had you not been caught in the act, you would have continued to do this on a regular basis.
14. You have pleaded guilty to rape and I am to sentence you on that. I am concerned to see that you have indicated to the probation officer that this was a consensual encounter however before I began sentencing, I explained to you the meaning behind your guilty plea

and also gave you the opportunity to change your plea should you wish to do so as consent in these circumstances is a defense.

15. You confirmed that you maintain your guilty plea and I put out of mind any assertion of consent in this sentencing exercise. This was a gross breach of trust further compounded by your refusal to accept responsibility and claiming that what happened was by the consent with the Complainant. I now proceed on the basis that you have abandoned that defense.
16. There are several aggravating features in your case apart from the fact that this 17-year-old was made pregnant which as you must know is liable to cause untold complications and difficulties, I repeat this was an appalling breach of trust undertaken in my judgment with no regard for the position of the victim but simply an attempt to gratify your own desires.
17. I have received an indicative sentencing report from the prosecution together with the authorities they cite, and I remind myself that each case must be decided on its particular facts.
18. I make it plain that I entirely disregard the allegations of domestic disharmony which have been communicated to the Probation Officer by your estranged wife, there may well be two sides to that particular matter, and I am not going to delve into the workings of your marriage.
19. However, what you did must receive strong punishment. I impose a starting point of 10 years’ imprisonment of which I deduct 2 years to take account of your guilty plea.
20. It is said that you have expressed remorse, and I must take that at face value although it is inconsistent with what you have told the Probation Officer about the circumstances of the offence. On the other hand, you are young and there is some prospects of rehabilitation, accordingly I will suspend the final 2 years of your sentence for a period of 2 years on conditions.
    
    5. FINAL RESULT
21. For Count 1 of Rape, contrary to section 118(a) of the Criminal Offences Act, I impose a sentence of 8 years imprisonments with the final 2 years suspended for a period of 2 years on the following conditions:
    1. You must not commit any offence punishable by imprisonment
    2. You must be placed on probation for the duration of your suspended sentence
    100. You must report to the Probation Office within 48 hours of your release from custody
    4. You must live where directed by the Probation Office.
22. For the avoidance of doubt, you will serve 6 years imprisonment followed by 2 years of a suspended sentence for 2 years on the conditions I have just mentioned.
23. I further order that nothing in these proceedings may be published in this Kingdom or broadcasted that may lead to the identity of the Complainant pursuant to section 119 of the Criminal Offences Act.
    

NUKU’ALOFA		HON. MALCOLM BISHOP KC
28 JULY 2025		LORD CHIEF JUSTICE