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Rex v Fainga'anuku [2018] TOSC 16; [2018] Tonga LR 147; CR 32 of 2018 (3 May 2018)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
PANGAI REGISTRY

CR 32 of 2018

THERE IS AN ORDER PROHIBITING THE PUBLICATION OF ANY INFORMATION WHICH MAY DIRECTLY OR INDIRECTLY IDENTIFY THE COMPLAINANT

BETWEEN: REX

Prosecution

AND : SIONE FAKA’OSIFONO FAINGA’ANUKU

Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Hearing : 2 May 2018
Date of Ruling : 3 May 2018

Counsel : Ms. L. Fakatou for the Prosecution

Mr. M. Finau for the Accused

RULING ON SENTENCE

[1] Sione Faka’osifono Fainga’anuku was arraigned on 30 April 2018 on one count of attempted carnal knowledge of a child contrary to section 122(1) Criminal Offences Act and an alternative count of indecent assault on a child contrary to section 125(1) of the Criminal Offences Act. He pleaded not guilty to both charges and his trial was scheduled to commence on 1 May 2018.

[2] Immediately before the trial commenced Mr. Fainga’anuku’s Counsel, Mr. Finau, advised me in Chambers that there would be a change of plea.

[3] Mr. Fainga’anuku was re-arraigned and he pleaded guilty to the charge of attempted carnal knowledge of a child. The alternative charge was withdrawn.

[4] I received written and oral submissions from Counsel on sentence on 2 May 2018. In light of Mr. Finau’s knowledge of the accused’s background and personal circumstances I was advised that a probation report was not required. I did however direct Counsel for the Crown to prepare a victim impact report which I have received.

The facts

[5] The victim (who I shall refer to as S) and Mr. Fainga’anuku are related and known to each other. S’s maternal grandmother and Mr. Fainga’anuku are first cousins.

[6] S was 8 years old at the time of the offence.

[7] On 9 October 2017 S and friends, M and P, after returning from school went to eat mangoes on land close to the entrance to their village. On the way they met the accused. M returned home leaving S and P eating mangoes.

[8] Mr. Fainga’anuku called S and enticed her with the promise of some money. There was no money. He took her behind a pandanus tree. He took off her clothes so that she was naked. He took off his own trousers and lay on top of her. He asked S to touch his penis but she refused. He opened her legs and fondled her vagina and then moved back and forth on top of her. S was crying and Mr. Fainga’anuku covered her mouth so that she felt that she could not breathe.

[9] P, who had observed what was happening, ran and got M. M returned and shouted out to both Mr. Fainga’anuku and S. Mr. Fainga’anuku got up and put on his trousers and left.

[10] On 13 October 2017 S told her mother what had happened. The mother told Mr. Fainga’anuku’s wife on 20 October 2017 and they confronted Mr. Fainga’anuku.

[11] A complaint was laid with the Police by the Town Officer on 25 October 2017. Mr. Fainga’anuku cooperated with the Police and admitted what had occurred.

[12] Mr. Fainga’anuku has been in custody since 30 October 2017.

[13] I have received a certificate of Mr. Fainga’anuku’s criminal record. It shows that in 2001 he was sentenced to 4 years imprisonment on charges of incest and indecent assault (there were four counts). In 2008 he was again convicted of incest and sentenced to 8 years imprisonment. Mr. Fainga’anuku accepted the record of his convictions. I have been able to obtain the sentencing remarks of the Judge in the 2008 case. They disclose that the victims in those previous cases were Mr. Fainga’anuku’s daughters who were just 7 and 10 years old. I note that the Judge made the comment that Mr. Fainga’anuku had abused the trust of his daughters in the ‘most unimaginable and disgusting way’ and that he deserved no sympathy from the Court. I mention this so that Mr. Fainga’anuku’s offending in this case can be put in proper context.

Submissions

The defence submissions

[14] Mr. Finau informs me that Mr. Fainga’anuku is 70 years old and married with 7 children. He spent 17 years in His Majesty’s Armed Forces and held the rank of Sergeant before he retired. He is presently an assistant Pastor at his local church.

[15] I am told also that Mr. Fainga’anuku’s wife is not well with diabetes and that as all the children of the family have moved away Mr. Fainga’anuku is needed at home to care for his wife. I note however that Mr. Fainga’anuku has been in custody for some months, there are seven children of the marriage and I am told that his wife is now living in Tongatapu with a sister. I do not therefore accept that Mr. Fainga’anuku’s wife is totally dependent upon him for her care.

[16] Mr. Finau has advanced a number of matters in mitigation. Whilst describing the accused’s conduct as ‘outrageous’ and ‘obviously serious’ he submits that there was not a high level of violence and that S was not physically harmed. Mr Finau also submitted that the accused is fully repentant for what he has done, that he has apologised to S’s mother and to S (this is not accepted by the Crown) and he has asked God’s forgiveness. He also advises me that Mr. Fainga’anuku promises not to break the law of again. Mr. Finau argues that the Court should impose a fully suspended sentence of imprisonment subject to a condition that Mr. Fainga’anuku undertake community work.

The Crown’s submissions

[17] Ms. Fakatou submits that there are a number of aggravating features of this case which include that Mr. Fainga’anuku was in a position of trust in respect of S (being an older relative), that the offence was premeditated, that Mr. Fainga’anuku is not remorseful, that S was fearful during the offending and will live with the consequences of the offending for the rest of her life.

[18] As far as mitigating factors are concerned it is accepted that Mr. Fainga’anuku is entitled to credit for cooperating with the Police and his guilty plea that saved S from the trauma of having to give evidence and re-live the events.

[19] Ms. Fakatou also submitted that the Court may have regard to Mr. Fainga’anuku’s age and that his wife is sickly.

[20] I was referred to a number of relevant decisions of the Supreme Court and the Court of Appeal for sentencing purposes all of which I have read and considered.

Victim Impact Report

[21] The victim impact report makes unsurprising reading. S was shocked and frightened by what had been done to her by Mr. Fainga’anuku. Since the offence occurred she has lost focus and her studies at school have suffered and she has fallen to the bottom of the class. She no longer wants to partake in activities at school or at church. At home S has become rebellious whereas she was previously obedient. S’s mother advises that she has forgiven Mr. Fainga’anuku but that he has not apologised to her or to S.

Discussion

[22] The offence of attempted carnal knowledge of a child is a very serious one reflected in the fact that it carries a maximum penalty of 10 years imprisonment. Mr Finau realistically accepts that a sentence of imprisonment is appropriate in this case (albeit he advocates that it be fully suspended).

[23] Of all of the cases cited to me the most comparable on its facts would appear to be R v Motulalo [2000] TOCA 9 where the accused had pleaded guilty to one charge of attempted carnal knowledge and one charge of indecent assault. The conduct of the accused in that case was not dissimilar to what occurred in this case. The accused pleaded guilty and was sentenced in the Supreme Court on the attempted carnal knowledge charge to a sentence of 2 years imprisonment which was fully suspended. The Crown appealed the suspension of the sentence and the Court of Appeal quashed the suspension. The Court of Appeal noted that “The sentence of two years imprisonment is itself a lenient punishment for offending as serious as that which occurred in this case” and was of the view that a longer term of imprisonment could well have been imposed.

[24] The offence committed by Mr. Fainga’anuku has a number of aggravating features. It was to an extent pre-planned with S being enticed to go to Mr. Fainga’anuku with an offer of money. The offence also involved force being used against S with Mr. Fainga’anuku laying on top of her and putting his hand over her mouth so that she did not feel that she could breathe. There was an element of breach of trust in that Mr. Fainga’anuku and S are related and live within a small community. Mr. Fainga’anuku would also have been well aware that S was both shocked and frightened by what he was doing and yet he was callous to her suffering and only stopped once he knew that he had been seen. There is also the fact that Mr. Fainga’anuku’s actions have clearly had and will continue to have harmful consequences upon S’s emotional state. She will have to live with that for some considerable time.

[25] In my view, based on the authorities and the facts of this case the starting point for the purposes of sentence is four years imprisonment.

[26] Turning to the aggravating factors relevant to Mr. Fainga’anuku, I have noted is prior convictions for sexual offending which was indeed serious and disgusting. It justifies an uplift on the starting sentence in my view of 12 months imprisonment. That would take Mr. Fainga’anuku’s sentence to one of 5 years imprisonment.

[27] As far as factors in mitigation are concerned there is nothing that leads me to accept that Mr. Fainga’anuku is genuinely remorseful. It was submitted by Mr. Finau that he has apologised to S and her mother but that does not appear to be the case. I do not accept either Mr. Finau’s submission that Mr. Fainga’anuku will not reoffend. He has previous convictions for sexual offences and has reoffended. It appears that despite his relatively advanced age Mr. Fainga’anuku represents a serious threat to children and that one cannot discount the real possibility that he will reoffend in the future.

[28] Mr. Fainga’anuku is entitled to credit for the fact that he cooperated with the Police I also believe that I must take some account of his relatively advanced age and that a period of imprisonment is likely to be more onerous for him than a younger man. I allow Mr. Fainga’anuku a 6 month discount for these factors.

[29] Mr. Fainga’anuku is also entitled to credit for his guilty plea although he is entitled to less credit than might otherwise be the case as he pleaded not guilty when arraigned. Notwithstanding that, he did change his plea before trial and I give him 9 months credit on his sentence for this factor. The end result is that I impose a sentence upon Mr. Fainga’anuku of 3 years and 9 months imprisonment.

[30] The next issue is whether any part of the sentence should be suspended. In my view there is a need for the Court to impose sentences that deter this sort of offending and that will certainly not be achieved if I was to accept Mr. Finau’s submission to fully suspend Mr. Fainga’anuku’s sentence (in this regard see R v Vake (Unreported Court of Appeal AC 4 of 2012, 12 October 2012)).

[31] In Mo'unga v R [1998] Tonga LR 154, 157 Court adopted the principles formulated by Eichelbaum CJ in R v Petersen [1994] 2 NZLR 577 CA who said that a suspended sentence is intended to have a strong deterrent effect on the offender, so that if the offender is incapable of responding to a deterrent, it should not be imposed. The Court continued:

...the Court suggested a number of situations, intended to be neither exhaustive nor comprehensive, in which the suspension of the sentence may be appropriate:

(i) Where the offender is young, has a previous good record, or has had a long period free of criminal activity.

(ii) Where the prisoner is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.

(iii) Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation.

(iv) Where there has been cooperation with the authorities.

We see no reason why this approach should not be followed in Tonga.

[32] Mr. Finau submitted that Mr. Fainga’anuku should receive a suspended sentence as he is the breadwinner for the family (by which I take it he means he supports his wife). In R v Motulalo the Court of Appeal observed that the fact that the offender was the breadwinner for his family, was not, and is rarely likely ever to be, on its own proper reason for suspending a sentence.

[33] In R v Vake (supra) the accused was convicted of incest and indecent assault upon his adopted daughter. He was sentenced to terms of imprisonment which were fully suspended. The reason for the suspension was that the offender was the sole breadwinner for his family which included his wheelchair bound mother, his wife, his bedridden son who was disabled in an accident and another daughter. On appeal the Court of Appeal noted at [14]:

A sentence of full time custody will inevitably impose significant hardship on the other members of the offender's family, particularly his wheelchair bound mother and disabled bedridden son. Such hardship cannot be an overriding mitigating factor in cases where the objective gravity of the offences and the presence of aggravating factors call for a custodial sentence.

[34] I do not accept Mr. Finau’s submission that Mr. Fainga’anuku’s sentence should be suspended in whole or part. Mr. Fainga’anuku is a recidivist offender who poses a risk to children and he is not at his age likely to rehabilitate himself or respond to a deterrent sentence. To suspend any part of his sentence would not therefore in my view be in the interests of society nor would it take account of the devastating effects that this offending is likely to have had on S, which will in all probability continue with her well beyond Mr. Fainga’anuku’s release from prison.

Result

[35] Mr. Fainga’anuku on the count of attempted carnal knowledge of a child to which you pleaded guilty you are convicted and sentenced to 3 years and 9 months imprisonment. The sentence is backdated to the date you were taken into custody which was 30 October 2017.

O.G. Paulsen

PANGAI: 3 May 2018. LORD CHIEF JUSTICE