IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
AC 6 of 2013
NUKU'ALOFA REGISTRY [CR 11 of 2010]

BETWEEN :

TAULOTO LANGI
Appellant

AND:

REX
Respondent

Coram : Salmon J
Blanchard J 
Ward J

Counsel : Mr Piukala for the Appellant
Mr Kefu SG for the Respondent

Date of Hearing : 4 April 2014
Date of Judgment : 9 April 2014

JUDGMENT OF THE COURT

[1] 	The appellant was sentenced following a plea of guilty to an indictment charging one count of attempted rape, four counts of indecent assault and one of common assault. He was sentenced to fourteen years imprisonment on 1 March 2010 and he now appeals out of time with leave of the President granted on 29 April 2013.

[2] 	The victim was a young Australian volunteer who cycled with friends to the beach at Fangamea on 30 December 2009. She was walking along the beach by herself and, when she was out of sight of her friends, the accused appeared, grabbed her and, when she screamed, punched her on the jaw. She continued to scream as he pushed and dragged her to a cave. During that time he continued to assault her and ignored her repeated pleas not to hurt her. Over the next half an hour or so he tried more than once to rape her and performed various indecencies on her. Eventually when it appeared he would succeed in raping her, she persuaded him to allow her to perform oral sex rather than to rape her. Once he ejaculated, she was able to escape and reach her friends. All the charges arose from that course of events.

[3] 	The appellant had seven previous convictions including one of assault, four of theft and the most recent for indecent assault for which he was sentenced to 18 months suspended for 3 years. In that case, he had broken into a house at night and indecently assaulted the female occupant. He was in breach of the suspended sentence and the trial judge ordered that to take effect consecutively to the fourteen years.

[4] 	The Court was provided with a social enquiry report on the appellant and a victim impact report. The latter showed that his victim had recovered from her physical injuries but was deeply hurt emotionally. She was continuously frightened to be alone and her confidence and self respect had been adversely affected to a very serious degree. She was due to take a new position in Solomon Islands but had to withdraw from the appointment because of the continuing fears induced by this experience.

[5] 	The judge passed what he described as a deterrent sentence and decided on a starting point of fifteen years. He passed the maximum sentence of ten years imprisonment for attempted rape, three years each for the first two indecent assault charges and one year for the third. The most serious indecent assault was the oral sex and received a sentence of four years. The last count of common assault received a sentence of 12 months. All counts were ordered to be served concurrently except for count five which was to be consecutive. The suspended sentence was activated in full consecutively to the fourteen years making a total sentence of fifteen and a half years.

[6] 	Mr Piukala for the appellant has produced a letter from the Commissioner of Prisons to say that the appellant is a well behaved prisoner but we do not accept that is a relevant consideration for this court. This is an appeal from the sentence passed by the trial judge. The court must consider the manner in which the appellant was sentenced at the time the sentence was passed and as the facts were at that time. The appellant has served some four years of his sentence but it is not appropriate for this Court to consider his conduct over those four years. That is a matter for possible review by other authorities.

[7] 	This was a nasty, vicious attack on a young woman alone on the beach. It included substantial and repeated violence and was continued over a considerable period of time despite pleas by his victim for mercy. Far from being affected by her pleas, he repeatedly renewed his attack. The only mitigation is that he pleaded guilty at the first opportunity. The judge correctly gave some credit for that but pointed out that the overall circumstances of the case meant it was of limited value. Like the judge, we can find nothing beyond the plea to mitigate the sentence.

[8] 	The aggravating features, on the other hand are substantial. We do not detail them but four in particular were especially significant:

1.	From the facts it appears the appellant planned his attack after seeing the victim was out of contact with her companions and alone;
2.	The repeated physical violence which continued despite her pleas;
3.	The additional humiliation of the victim having to perform oral sex to avoid rape;
4.	The protracted sequence of events.

[9] 	In cases of this nature we consider that an appropriate starting point is four years. The sentencing judge he took a starting point far out of line with any other offence and described this as a deterrent sentence but gave no explanation of why such a sentence was necessary in this particular case or at that time. Any advice on sentence from an appellate court is for guidance only and a sentencing judge may exercise his discretion to take a different course where it is clear the circumstances of the particular case or the prevalence of such offences merit it. In any such case, however, the reason must be stated. It is insufficient simply to state, as did the judge in the present case, that the sentence is intended to be a deterrent without giving the reasons for adopting such a course. 

[10] 	This was clearly a very bad case but that should be reflected in the final sentence as a result of a consideration of the aggravating features adding to the starting point of four years. It would appear that the judge decided the overall sentence and then, as it exceeded the maximum available for attempted rape, the principal and most serious offence, he adjusted the other sentences to give the total term he intended to impose. 

[11] 	These offences formed one protracted and terrifying chain of events and the sentence should be appropriate for the whole sequence. In many cases, a detailed breakdown of events which formed part of the overall sequence leading to or forming part of the principal offence may reveal a number of lesser offences but their inclusion in the indictment does not alter the overall seriousness of the main offence. In the present case, the additional counts of indecent assault and common assault were all part of the attempt to commit rape. Undoubtedly they contributed to the overall horror of the whole attack and can and should be taken as matters of aggravation of sentence but they do not require consecutive sentences.

[12] 	Counsel, helpfully, supplied the Court with a number of previous sentences for rape and similar offences. Whilst we do not have the full details of all those cases, they are enough to show that this case does not present any special reason justifying the judge's decision that it required a deterrent sentence. 

[13] 	We consider that the starting sentence of four years should be reduced for the plea of guilty. In rape cases, that reduction may be more generous than in some other offences because the plea of guilty often saves the victim from the additional trauma of having to re-live the event in the witness box. For that, we reduce the starting sentence by one year to one of three years.

[14] 	The serious aggravating factors already described merit an increase in the overall sentence by an additional four and a half years giving a final sentence for attempted rape of seven and a half years.

[15]	We do not alter the sentences on the remaining counts save to order that they must all be served concurrently with the seven and a half year sentence and with each other.

[16] 	As has been stated, this offence was committed in breach of a suspended sentence of eighteen months imprisonment for indecent assault. That sentence must be served consecutively to the seven and a half years giving a total sentence of nine years. We see no reason to order that any part of this sentence should be suspended. 

Order

- 	Appeal against sentence allowed.

- 	Sentence of ten years for attempted rape quashed and a sentence of seven and a half years substituted.

- 	Sentences on all other offences on the indictment to be served concurrently with that sentence giving a total sentence on the indictment of seven and a half years imprisonment.

- 	Suspended sentence of 18 months passed on CR 212-06 to be activated and served consecutively to the seven and a half years giving a total term of imprisonment of nine years.

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Salmon J

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Blanchard J

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Ward J