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R v Savieti [2004] TOLawRp 52; [2004] Tonga LR 354 (21 October 2004)

IN THE SUPREME COURT OF TONGA

R

v

Savieti

Supreme Court, Nuku'alofa
McElrea J
CR 104/2004

4-8 October 2004; 21 October 2004

Sentencing – indecent assault on child – imprisonment imposed for public safety and as deterrent

At the end of a defended trial by Judge and Jury the accused was found guilty on the count of indecent assault on a child contrary to s 125(1) of the Criminal Offences Act. The particulars of the offence set out in the indictment were that the accused in the year 1997 at Mataika did indecently assault a (named) girl under the age of 12 years by poking one of his fingers in her vagina. The maximum sentence for such an offence was seven years imprisonment.

Held:

1. The Court was not prepared to accept any expression of remorse whatsoever from the accused. He denied the allegation and gave evidence at the trial, in effect saying that the girl was liar. He could not say he was sorry for what happened, because if he admitted that this indecent assault did happen then he perjured himself at trial. At the most it was an expression of embarrassment at the shame brought upon him by the conviction.

2. Although at the time of the offending he was a first offender, he had a previous conviction at the time of trial and came before the court for the second time on a similar matter. He could not get the usual reduction available to first offenders as he got that previously when he appeared before the Court for the first conviction.

3. The maximum term of imprisonment was seven years. The Court imposed a sentence of five years. That was calculated having regard to the aggravating factors and the absence of any mitigating factor. The sentence imposed was for protection of the public and was intended to strongly denounce the abhorrent behaviour by an adult man, as well as to deter him and others from similar offending.

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for prosecution: Mr Kefu
Counsel for the accused: Mr Tu'utafaiva

Sentencing Remarks

The offence

At the end of a defended trial by Judge and Jury the accused was found guilty on the count of indecent assault on a child contrary to s 125(1) of the Criminal Offences Act. The particulars of the offence set out in the indictment are that the accused in the year 1997 at Mataika did indecently assault a (named) girl under the age of 12 years by poking one of his fingers in her vagina. I do not propose to identify the girl or her brother (also a witness) in this judgment. The maximum sentence for such an offence is seven years imprisonment.

Facts surrounding the offence

The facts of the matter are that on the day of a funeral in their village when other adults would have been distracted by funeral activities, the accused enticed the victim (then aged seven or eight) and her younger brother into the bush with promises of lollies. He was known to them both as a very close family friend and indeed he was more like an uncle than a friend. At times when the children's father was sick he lived in the house and helped with household duties. He had from time to time bought lollies for the young boy then aged five.

On this day he found them sitting on a step and suggested that they go and get some lollies, and he organized a taxi for that purpose. He took them from his own village of Ngele'ia to Mataika along the By-pass Road to a place where there was a small shop open.

He bought lollies for the children and then he suggested that they go into the bush to collect coconuts. They went with him down a side road from the shop and crossed through an area of bush to a mango tree. They sat on a log under the tree and he had one child on each side of him. He told the young boy to look the other way while he ate his lollies. He pulled the young girl towards him and with his other hand inserted his finger under her clothing into her vagina. He pushed it in and out several times and it really hurt her. She was sobbing quietly and this caused her brother to turn around. He glanced quickly at her and he saw her apparently sitting on the accused's lap.

The accused had a knife with him and he held the knife in a way that the children could see him and threatened them not to tell anyone - or may be that the threat was directed only at the girl but her brother overheard it.

They then left the bush area and returned to the road where they made their way back home.

No doubt partly as a result of embarrassment but also because of the threat regarding the knife, neither child spoke about this until many years later.

Probation report

The Probation report provides helpful information in this case. It shows that the accused is a man aged 52 now and he would have been about 45 at the time of this offending. He is a single man and I believe he has never been married. Prior for his remand in prison for sentencing he was living with his sister and her children and was as an operator for a taxi company in his village, Ngele'ia. He has been closely involved in church activities, being a member of the Church of Tonga. Indeed the evidence at trial established that he was a music leader or director at his Church. The report notes that the accused is not a first offender as in 2002 he was convicted of a similar offence.

The report also notes that the accused "seems to be astounded and [finds it] difficult for him to puzzle out why this imprudent idea approached his mind". It also says that "he is in deep remorse and regret what he did that darkened his image in the community".

Alleged remorse

Ms Mangisi appears as counsel for sentencing today in the absence of Mr Tu'utafaiva who was defence counsel at trial. She too emphasized the defendants' extreme remorse and said that he realized the seriousness of the offence and that it had brought shame and humiliation on himself, his family and acquaintances and also on the victim and her family.

I am not prepared to accept any expression of remorse whatsoever from the accused. He denied this matter and himself gave evidence at the trial, in effect saying that the girl was liar. He cannot turn around now and say he is sorry for what happened, because if he admits that this indecent assault did happen then he has perjured himself at trial. At the most it is an expression of embarrassment at the shame that this conviction has brought upon him.

The Probation Report recommends a rehabilitation program available from the Center for Women & Children's Counselling, and this would be possible within a 100 Probation sentence with conditions. Community work also is mentioned as a possible sentence.

I have also received a letter from defendant's Pastor, the Rev Talia'uli. He speaks highly of the defendant and makes it clear that he is very surprised at this conviction. He asks for mercy on behalf of the defendant.

The Probation Officer refers to the accused as not a first offender but in fact this offence was the first in time of the two indecent assault cases of which he is now convicted.

Submissions in mitigation

In her submissions Ms Mangisi covered the personal circumstances of the accused as I have already outlined them, and his (alleged) expression of remorse and shame. She asked the court to consider a suspended sentence with Community Service.

The previous conviction

In my view that type of sentence would be quite inappropriate in this case. The accused may regard himself fortunate to have received a suspended prison sentence from Chief Justice Ward in a similar case on 10 June 2002. In that case he was sentenced to 12 months imprisonment suspended for 3 years. Somewhat surprisingly, there does not appear to have been any alternative by way of conditions of suspension, such as community service or supervision. However at that time the accused was understood to have one previous conviction and that was for an unrelated matter concerning homebrew. That was true but in fact he was not a first offender at the time of the sentencing.

I am going to read from the summary of facts of that earlier case because in my view it shows a disturbing pattern of offending.

About 12 midday on 29 March 2002, the victim, a named girl who was in class 3 at her school, was asked by her mother to go to the store and do her shopping. The child went with a friend who turns out to be the younger brother of the present victim who went into the bush with the accused.

On their way back, they were called by the accused from his house near the road, informing them to come to his house to get the key. The girl and her friend went to the accused. They were told that the girl should walk in to get the key and the boy wait outside the house.

While inside, the girl was grabbed by the accused, who pulled out his penis and inserted it into her mouth. A moment later, an old lady noticed the boy standing outside the accused's house and she called out to him to go home. At that instant, the accused let the girl go. She walked out and told her friend what the accused had done to him. They went home and told her mother who went and complained to the police.

Comparison of the two cases

In my view the sentence in the present case should be much higher than that imposed on the first case for a number of reasons:

1. In the 2002 case the accused pleaded Guilty and would have got a reduction in sentence because of that. No such reduction is possible in this case.

2. At that time he was not known by the Court to have committed any previous sexual offences, but it is now known that he has done this twice.

3. In this case he abused a position of trust - that is, he relied on the fact that the children knew him almost as a family member and would have trusted him to behave properly. There was no suggestion in the earlier case that he occupied any position of trust in relation to the victim.

4. In this case he used a knife to threaten and terrify the young children.

5. In this case he caused very considerable pain to the young girl, to the point where she was crying.

For all those reasons I repeat that this is a much more serious case.

I said that I thought that the two cases showed something of a pattern and I return to that question now.

On both occasions Savieti picked on young children in the local area. In both cases he appears to have known that the young boy would do what he was told by the defendant, that is that he would stay outside the door or he would look away while eating lollies. He was therefore able to use Sani like a chaperone but also to know that he would be obedient and do what he was told.

In each case the girl might not have gone with the defendant but for the presence of the boy as a companion.

In each case he isolated the girl in a place where adults would not be able to see her. He then did thing to them which they may have been too young to know were even wrong.

In my view this man is a danger to the community and if at large is likely to be reoffending as a paedophile against other children.

Conclusions as to sentence

I am going to be imposing a lengthy term of imprisonment and it will not be suspended.

Although on this occasion he was a first offender he has a previous conviction and now comes before the court for the second time on a similar matter. He cannot get the usual reduction available to first offenders as he got that previously when he appeared before the previous Chief Justice.

He is also in my view to be regarded as a danger to the community and the sentence that I will impose is calculated in part to protect the community.

As already noted, the maximum term of imprisonment in this case is seven years. I impose a sentence of 5 years. That is calculated having regard to the aggravating factors that I have already mentioned and the absence of any mitigating factor. It is about as bad a case as one could get. The girl was very young, she was vulnerable, she trusted him, he hurt her, he threatened her, and he did not care about the result.

Counsel has suggested that he could receive some counselling and he clearly needs that, if there is any counselling available in Tonga for a paedophile, but as far as I am concerned he will have to get that while he is prison or after his release.

Finally I say that I have completely disregarded the fact that he was also charged with having carnal knowledge of this same girl some years later but was found Not Guilty of that crime by the jury. All I can say that I am sure myself that the jury's verdict on this present charge was absolutely right.

It is fortunate that these two children who gave evidence have the support of loving foster parents to give them the courage to come to court. They in turn may have saved other children from a similar fate.

I am not in a position to activate the suspended sentence imposed by Chief Justice Ward, even though the three years is still running. That is because this current offence was committed prior to the other one and not during the term of suspension. However I can say that the sentence of one year imposed in that case is in effect reflected in the current sentence because I have regarded the fact that there are two such crimes as a matter of calling for a longer sentence to protect the public.

In addition to public protection the sentence I have imposed is intended to strongly denounce this abhorrent behaviour by an adult man, as well as to deter him and others from similar offending.

The accused is now formally sentenced to five years' imprisonment.