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R v W.L (a pseudonym) [2025] TOSC 64; CR 40 of 2025 (28 July 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 40 of 2025

BETWEEN:
REX
-Prosecution
AND:
W. L (a pseudonym)
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mrs E Lui for the Crown Prosecution
Mr T Naufahu for the Defendant
Date: 28 July 2025

1. THE CHARGES & BACKGROUND

1. On 6 June 2025, after a contested trial I found you guilty of the following charge;
   1. Count 1: Rape, contrary to section 118(1)(a) of the Criminal Offences Act when on the 06 October 2024, you inserted your penis into her vagina, against her will.
2. Sentencing directions were ordered for a Probation Report and Crown Sentencing submissions, and I now proceed to sentencing.
   
   2. CROWN SUBMISSIONS
3. The Crown filed their sentencing submissions to assist the Court on 23 July 2025.
4. Aggravating and Mitigating factors were submitted along with the following caselaw in support;
   1. Francis Vaka v Rex AC30 of 2022
   2. Sosaia & Fine Maamaloa v Rex AC 4 of 2023
   100. Rex v L CR157/2024
5. Counsel made several attempts via telephone to the victim for a Victim Impact Report but was unsuccessful.
6. The Crown submits that the Defendant committed the offending while he was on suspended sentence for CR28,29,783 & 784/2023 and is therefore in breach of his suspension.
7. In this case, the Crown recommended the following sentences;
   1. Count 1: 7 1/2 years imprisonment with the final 2 years suspended for 3 years on appropriate conditions.
8. In addition to this recommended sentence, the Crown submits that the 12 months suspended sentence in CR28-29,783-784/23 is reactivated in full to be served in cumulative to the above sentence.
   
   100. PRESENTENCE REPORT
9. On 23 July 2025, a report from the Probation Office was filed where I was told further details about your upbringing, personal history and your response to the conviction in which you claim the act was consensual.
10. You have no known health issues, and you currently reside with your family in Vaini where you play rugby representing the village.
11. You have expressed no remorse for what you did according to the Probation Officer.
    
12. In light of the seriousness of the offence, an inevitable term of imprisonment is recommended.
    
    4. DEFENDNAT MITIGATION SUBMISSIONS
13. I received submissions from Learned Counsel on your behalf this morning to assist me in determining an appropriate sentence where I have read further details about your personal upbringing and factors in support of a rehabilitative centred approach in your case.
14. Counsel relies on the approach in R v Tuifua [2018] TOSC 73 and recommended the following sentence. For Count 1, 4 years imprisonment with the final 18 months suspended on conditions for 3 years.
15. I further heard submissions from your learned counsel today inviting the Court to consider your background and its influence on you together with the principle of rehabilitation and the potential further harm it would cause to imprison you for a long period of time.
    
    5. DISCUSSION
16. The offending arose after a rugby match in which both male and female teams that the Complainant and the Accused were part of, left together having played in separate matches to a residence where they were drinking which had initially commenced at the rugby field.
17. Learned Counsel for the Defendant has submitted that sex after a rugby match between the male and female teams are common, it may be so and provided it is consensual, I make no observations of that at all, however non-consensual sexual activity is another matter, and it is for that namely rape that I must sentence you.
18. The Complainant after some time was tired and went into one of the rooms to lie down with two other girls. She laid down to rest and the girls returned to the living room and she had locked the door with a nail afterwards.
19. She heard a knock on the door but ignored it, then she felt her leg being lifted, she turned around and noticed a man lying over her where he grabbed both her feet. This man was you and you then put your hand over her mouth which is hardly consistent with consent and pushed her head towards the wall whilst trying to take off her shorts.
20. The Complainant felt herself blacking out where she then felt your penis enter her vagina and you copulated inside her. She kept struggling and she was eventually able to kick you, and you fell.
21. What is serious about your case, apart from the offence itself is that you maintain your innocence despite having been found guilty, even now in your discussions with Probation Officer and you continue to insist that the sexual encounter was consensual. That is a severely aggravating feature, of course you are entitled to plead not guilty and put the Prosecution to proof including calling the Complainant herself to give evidence, but that means you can be given no consideration for any prior cooperation with Police.
22. In Count 1, I impose a starting point of 7 years imprisonment, no reduction for mitigating circumstances is applicable here as this was a contested trial in which you were then found guilty.
    
    6. SUSPENSION
23. I have considered the possibility of suspension in your case, keeping in mind the guidelines provided in Mo’unga. In your case, you are young, but you do have previous convictions,

and I see a modest prospect of rehabilitation despite what I have been told about your troubled upbringing and even though you continue to show no remorse and maintain your innocence.

24. Taking these matters together and in light of the long period of imprisonment that will be imposed in order to oversee your reintegration back into society, I suspend the final 12 months of your sentence for 3 years on conditions.

25. Should you breach any of the conditions, this will result in your suspended sentence being activated in full.

7. FINAL RESULT

26. For Count 1 of Rape, I impose a sentence of 7 years imprisonment with the final 12 months suspended on the following conditions for 3 years:

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 be placed on Probation for the period of your suspended sentence.

4. You must complete a course on Life Skills at the direction of the Probation Office
5. You must live where directed by the Probation Office within the duration of your suspended sentence.

27. This sentence is to be served consecutively with your suspended sentence of CR28-29,783-784/23 which you have breached, of 12 months’ imprisonment.

28. This means that you will serve a total of 7 years imprisonments followed by 12 months suspension for 3 years commencing from the completion of your sentence in CR 40/2025.

29. The sentence imposed by the Court is to be backdated to account for time served since you was remanded into custody for this matter being 30 April 2025.

30. 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.