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R v Pahulu [2025] TOSC 92; CR 120 of 2025 (8 October 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 120 of 2025

BETWEEN:
REX
- Prosecution

AND:
Francis Pahulu
- Accused

SENTENCE AND SENTENCING REMARKS

BEFORE:
HON. JUSTICE PAUL GARLICK KC

Appearances:
Mrs. E Lui for the Crown Prosecution
Defendant in Person Appearing through AVL from Vava’u Regisry accompanied by Prisonsn Officer.

Date:
8 October 2025

History of proceedings

1. The defendant (Mr Francis Pahulu) was charged with 2 counts of serious indecent assault, contrary to section 124(1) and (3) of the Criminal Offences Act.
2. On August 6, 2025, the defendant pleaded guilty to all charges against him as outlined in the indictment. He appears today to be sentenced for those offences.
3. The sentencing exercise in this case has been made more difficult by reason of the fact that, on 28 July 2025, the defendant appeared before the Honourable Lord Chief Justice Bishop KC, when he was sentenced to a period of 7 years imprisonment for an offence of rape, partly suspended as to the final 12 months. In addition, the Lord Chief Justice implemented a suspended sentence (CR28-29, 783, 784 of 2023), which the defendant had breached by reason of the rape offence. That suspended sentence was implemented consecutively to the sentence imposed for the rape offence. It goes without saying that the Lord Chief Justice would have had in mind the principle of totality of sentence when determining the just and proportionate sentences that he imposed upon the defendant. Had the Lord Chief Justice been aware of the instant case, I am sure that he would have called for it to be listed for arraignment before him, so that the defendant could have been sentenced for all matters against him in one consolidated hearing. The sentencing exercise that I now have to carry out will attempt to achieve the same total sentence that might have been imposed upon the defendant if he had been sentenced on 28 July 2025 for all these matters.

The offending conduct

4. The offending conduct, which was reflected in count 1 of the indictment, was that the defendant touched the vagina of the complainant without her consent. The conduct in count 2 was that the defendant kissed and put his tongue into the mouth of the complainant. Plainly, count 1 is the lead offence and constitutes a very serious example of the offence, for which a sentence of imprisonment must be passed upon the defendant. As the conduct in count 2 was committed on the same occasion and is part of the whole sexual misconduct of the defendant, a concurrent sentence is appropriate for that offence. The exercise I have to carry out is as follows. First, I have to determine the just and proportionate total sentence for these offences; then I have to adjust those sentences so as to reflect the sentence that would have been imposed by the Lord Chief Justice if he had been seized of these matters when he sentenced the defendant for the rape offence. Accordingly, when looked at in isolation, the sentences that I intend to pass upon the defendant may appear unduly lenient; however, in my judgment, when seen in the context of the whole sentencing exercise, they are just and proportionate.
   

Submissions on behalf of the Crown concerning the sentence

5. The Crown submits that the following aggravating and mitigating features are present in this case.

Aggravating Features

1. The offence was serious and premeditated to an extent, as he quietly followed the complainant to the residence she intended to sleep at and forced himself on her.
2. The defendant deliberately used force and violence on the complainant and continued to apply such force, despite being asked several times to stop.

100. The complainant was physically injured (bruises), suffered emotionally (she was crying while asking the defendant to get off) and psychologically (she felt embarrassed and frustrated about what happened).

4. The defendant lacks genuine remorse for his actions, as indicated in his Probation Report.
5. The Accused is currently serving time in prison for another sex-related matter (rape).

Mitigating Features

1. The Accused is young (21 years old).
2. He cooperated with the Police.

100. He pleaded guilty to all charges at the earliest opportunity.

Relevant legislation

6. The penalty for the offence of serious indecent assault is provided under section 124(1) & (3)(a) of the Criminal Offences Act. The maximum penalty is a term of imprisonment for any period not exceeding 5 years.

Antecedent history of the defendant

7. The previous convictions of the defendant are set out in paragraph 5 of the Crown’s sentencing submissions. In summary, the defendant has previous convictions for offences of assault, housebreaking, theft, and the offence of rape, for which he was sentenced in July.

Sentences in comparable cases

8. In paragraph 8 of its submissions, the Crown has outlined details of the sentences in what it claims are comparable cases. Of course, no cases can be said to be truly comparable, and it is the function of the sentencing court to determine the just and appropriate sentences in each case, having regard to all of the circumstances of the case. That said, I have considered carefully the cases referred to by the prosecution. In particular, I have found the case of Rex v Tongamoa Kakau (CR 89 of 2020) to be of some guidance, although I observe that the sentences imposed in the Kingdom of Tonga for serious indecent assaults, involving the deliberate touching of the vagina, are notably lenient when compared to other common law jurisdictions in the Commonwealth.

The pre-sentence report

9. On the occasion that the defendant entered his pleas of guilty, I ordered that a pre-sentence report be prepared. I have considered that report, dated 15 September 2025, carefully. I note that the defendant claimed that he did not know what he did because he was too drunk. I do not regard that fact as any mitigation whatsoever. The writer of the pre-sentence report, rightly in my view, observes that the offending behaviour of the defendant was premeditated, and he took advantage of the vulnerable position of the complainant to commit these offences. Moreover, the defendant continued to sexually assault the complainant despite her protestations for him to stop.

The appropriate sentences

10. In my judgment, the just and proportionate sentence for these offences, if they had been dealt with by the court in isolation from the rape offence, would have been as follows.
    1. On count 1, the starting point would have been 3 years’ imprisonment. That starting point would have been reduced to 2 years’ imprisonment, to reflect the defendant’s plea of guilty.
    2. On count 2, the starting point would have been 12 months’ imprisonment. Again, that starting point would have been reduced to 8 months’ imprisonment.
    100. Both those sentences would have been ordered to run concurrently with each other, making a total sentence of 2 years’ imprisonment.
    4. I would have suspended the last 6 months of the sentence.
       

The adjustment that I have to make to take into account the sentences imposed upon the defendant for the rape offence.

11. In my view, if the Lord Chief Justice had been seized of this matter in July, he may have considered it appropriate to impose a relatively short period of imprisonment consecutively for these offences. I say relatively shorter because he would have had to consider the totality of the sentences imposed upon the defendant. In my view, the appropriate course in this case is to impose a sentence of 6 months imprisonment on count 1 and a sentence of 3 months imprisonment on count 2. Those sentences shall run concurrently with each other, but consecutively to the sentence of 7 years imprisonment which was imposed upon him for the rape offence in July.

Final sentence

12. The sentences that I impose upon the defendant are as follows:
    • (i) On count 1, the sentence is one of 6 months’ imprisonment.
    • (ii) On count 2, the sentence is one of 3 months’ imprisonment.
    • (iii) The sentences will run concurrently with each other, making a total sentence of 6 months’ imprisonment. The sentences imposed upon the defendant today will be served consecutively to the 7 years’ imprisonment imposed upon the defendant in case CR 40 of 2025.
13. I order, under section 119 of the Criminal Offences Act, that there shall be no publication of any material or information, by whatever means, whether orally or in writing, including any messaging via social media, which might have the effect of identifying the complainant in this case.

This is the sentence of the Court

NUKU’ALOFA

HON. JUSTICE PAUL GARLICK KC
JUDGE

8 October 2025