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R v T.D (a pseudonym) [2025] TOSC 73; CR 88 of 2025 (9 September 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 88 of 2025

BETWEEN:
REX
-Prosecution

AND
T. D (a pseudonym)
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr K Tamo’ua for the Crown
Mr S Fili for the Defendant
Trial: 16 July 2025 – 18 July 2025
Judgement: 21 July 2025
Sentence: 9 September 2025

1. THE CHARGES

1. The Defendant was found guilty after a contested trial on 21 July 2025 of the following charges:
   1. Count 1: Serious Indecent Assault (fondled breasts of Complainant 2), contrary to section 124(1), (3) and (5) of the Criminal Offences Act
   2. Count 2: Serious Indecent Assault (fondled breasts of Complainant 3), contrary to section 124(1), (3) and (5) of the Criminal Offences Act
   100. Count 3: Serious Indecent Assault (touched the vagina and fondled the breasts of Complainant 1), contrary to section 124(1), (3) and (5) of the Criminal Offences Act
   4. Count 4: Common Assault (hit buttocks of Complainant 1 with your hand), contrary to section 112(a) of the Criminal Offences Act
2. A presentence report and crown sentencing submissions were ordered and have been received, I now proceed to sentencing of these counts.
   
   2. CROWN SENTENCING SUBMISSIONS
3. On 5 September 2025, the Crown filed sentencing submissions to assist the Court.
4. Aggravating and mitigating features were supporting alongside the following caselaw in support:
   1. Rex v F.E (a pseudonym) [2025] TOSC 37
   2. Rex v Y.G [2024] TOSC 92
   100. R v Latu [2023] TOSC 40
   4. Attorney General v Toki [2023] TOCA 4
   5. R v Vea [2021] TOSC 4
5. The Crown further provided a Victim Impact Report, one complainant as a result of the offending is now hesitant in joining social gathering, despite this she has forgiven the Defendant despite that fact that he has not offered any form of apology, and another complainant faced emotional distress and embarrassment also as a result of the offending.
6. The Crown was unable to reach the third complainant despite numerous attempts.
7. The Crown recommend the following sentence having also considered the position in relation to the sentence being concurrent or cumulative as followed in Latu.
   1. Count 1: 12 months imprisonment with 2 months cumulative to Count 3
   2. Count 2: 18 months imprisonment with 2 months cumulative to Count 3
   100. Count 3: (Headcount) 24 months imprisonment
   4. Count 4: 3 months imprisonment concurrent to Count 3
8. The Crown submit a total sentence of 28 months’ imprisonment with the final 12 months suspended on conditions.
   
   100. PRESENTENCE REPORT & MITIGATION SUBMISSIONS
9. On 03 September 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 accept the Court’s verdict, but you maintain your innocence as you claim to have not done anything wrong.
10. You are a Church Minister known to be hardworking securing a long-term career in the FWC school system and religious roles. The Complainants considered you a father figure and spiritual leader.
11. You are generally healthy with no health known issues.
12. You expressed no remorse as to what you did, according to the Probation Officer. It is their assessment that you are considered at high risk especially to women and young girls.
13. In light of the seriousness of the charges, the Probation Officer invites the Court to consider a partly suspended sentence
14. On the submission from your learned Counsel filed on 05 September 2025, I was told your mitigating features together with the case authority on appropriate sentence.
15. In reliance on R v Afeaki CR 208/2019, counsel on your behalf submits that a 12-month imprisonment sentence is appropriate fully suspended on conditions including community service.
    
    4. DISCUSSION
16. What is particularly serious about your case is that you were in a position of trust at the school where you were a probationary minister and a tutor. A position in which the church entrusted to your and the parents of these pupils that their children would be safe and protected at the boarding school. I have read the report from the Probation Office where I am told that you continue to maintain your innocence and have shown no remorse despite being found guilty by this Court on the evidence that was adduced during the trial.
17. I have also read all the comparable sentences submitted by the Prosecution, however as I have said before, each case must be decided on its own particular facts.
18. It is the Courts duty to ensure that such behavior, especially in positions of utmost trust in the community and the church is marked by a term of imprisonment reflecting of the seriousness of the offence and the number of Complainants that have suffered as a result of your offending in this case.
19. I agree with the Prosecution and take Count 3 as the head offence in this offending and impose a starting point of 30 months’ imprisonment. For Count 1, 18 months’ imprisonment, for Count 2, 24 months imprisonment, for Count 4, 9 months imprisonment.
20. The only mitigation applicable here is that you are a first-time offender and your previous good character to which I have read numerous reference letters from members of the community about you in support. I reduce all Counts by 6 months in mitigation.
21. In regard to the sentences being served concurrently or cumulative, the offending took place over a span of time and to 3 different Complainants. Given the similar nature of the offending, I take the course of this offending all as part of the same persistent criminal conduct and take 2 months each from Counts 1 & 2 cumulative to Count 3 resulting in a final sentence of 28 months’ imprisonment. Count 4 is to be served concurrent to Count 3.
22. I now consider whether or not, there is any possibility of suspension in your case with regard to the principles in Mo’unga. You are not young, you did not cooperate with Police and you have expressed no remorse over this offending, but you are a first-time offender and you are a man of previous exemplary character. As such, the prospect of rehabilitation is highly likely, and it is just about possible for me to suspend part of your sentence.
23. In taking a holistic approach, I suspend the last 12 months of your sentence for 2 years on conditions.
    
    5. FINAL RESULT
24. For Count 3, 24 months imprisonment.
25. For Count 1, 16 months’ imprisonment, 2 months consecutively to Count 3.
26. For Count 2, 18 months’ imprisonment, 2 months consecutively to Count 3
27. For Count 4, 3 months imprisonment concurrent to Count 3.
28. The Defendant is to serve a total of 28 months’ imprisonment with the last 12 months of this sentence is suspended for 2 years on the following conditions:
    1. You must not commit any offence punishable by imprisonment
    2. You must be placed on probation
    100. You must report to the Probation Office within 48 hours of your release from custody
    4. You must complete a course on sexual abuse at the direction of the Probation Office.
29. For the avoidance of doubt, the Defendant is to serve 16 months imprisonment, followed by 12 months suspended for 2 years on conditions.
30. I further order that nothing in these proceedings that shall reveal the reveal the identities of the Complainants shall be published or broadcasted anywhere in the Kingdom pursuant to section 119 of the Criminal Offences Act.
31. That is the order of the court.