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R v Fungavai [2007] TongaLawRp 35; [2007] Tonga LR 202 (14 September 2007)

[2007] Tonga LR 202

IN THE SUPREME COURT OF TONGA

R

v

Fungavai

Supreme Court, Nuku'alofa
Ford CJ
CR 113/2006

14 September 2007

Sentencing – rape and indecent assault by police officer in police station – seven years imprisonment for rape, two years for assault

The facts set out in the headnote to the decision reported at page 118. Upon sentencing the court noted that the accused had been a serving police officer for 10 years but in committing the offences of rape and indecent assault in a cell at the Mu'a Police Station he had abused that position of responsibility and trust in the worst possible way.

Held:

1. The accused was sentenced to seven years imprisonment on the count of rape and two years imprisonment on each of the two counts of indecent assault.

2. The sentences were concurrent making seven years in total. The court did not consider it appropriate to suspend any part of the sentence imposed.

Case considered:

R v Motulalo [2000] Tonga LR 311 (CA)

Counsel for the Crown: Mr Kefu
Counsel for the accused: Mr Pouono

Sentencing Remarks

You are appearing before me for sentencing this morning having been found guilty of two counts of indecent assault and one count of rape.

I do not intend to repeat all of the evidence relating to your case.

The facts are fully set out in my judgment dated 14 August 2007.
Suffice it to say that your career in the Tonga Police Force which had spanned approximately 10 years has today come to a sudden and dramatic end.

As a serving police officer charged with maintaining law and order and with protecting the citizens of this Kingdom you abused that position of responsibility and trust in the worst imaginable way.

During the night in question, which was Christmas Eve 2005, the young female victim had been partying in Nuku'alofa.

She arrived home in an intoxicated state and had an argument with her mother because she wanted to use the family vehicle and her mother, quite responsibly, would not allow her to.

Because of her condition, her mother called the police and agreed to her being held at the Mu'a Police Station overnight until she sobered up.

While the victim was locked up in the dark number one cell at the police station you proceeded to indecently assault and rape her in the manner I have described in my lengthy judgment.

It was by anyone's standards a truly heinous and despicable offence.

Afterwards you aggravated the situation for the victim by trying to bribe her not to make a complaint and then to withdraw the complaint she eventually filed.

I acknowledge that you were not alone in this subterfuge.

Quite incredibly, the female acting officer in charge at the Mu'a police station, concerned about her own position should a prosecution eventuate, took the initiative and over a period of several days had immense pressure applied to the victim to withdraw her complaint.

Two of your fellow officers at the Mu'a police station who gave evidence also behaved in an unprofessional and despicable way by declining to accept the victim's complaint and treating it all as a joke.

Your conduct in this regard coupled with that of the other police officers I have mentioned undoubtedly would have exacerbated the victim's ordeal and that was evident as she relived the events over again in the witness box.

The combined pressure that was openly exerted upon the victim first to try and prevent her from making any complaint and then in trying to get her to withdraw the complaint must have driven her to the point of despair.

At that point in time she would have understandably been asking herself whether there were any honourable police officers serving at the Mu'a police station.

Fortunately, however, the victim was supported by officers at the Nuku'alofa police station who accepted her complaint and acted honourably throughout.

The maximum sentence for indecent assault is five years imprisonment.

The maximum sentence for rape is 15 years imprisonment. It is one of the most serious offences in the statute books.

In a 1996 case the Court of Appeal stated that the appropriate starting point for a rape sentence is five years and then that figure is to be adjusted up or down according to the aggravating and mitigating factors.

In your case the principal aggravating factor is undoubtedly the circumstances in which the crime was committed.

Members of the public should be entitled to have complete confidence in the way in which the police force operates.

Your conduct on the morning in question violated every element of that trust which should exist between the police force and the community.

In addition to the violence inherent in the act of rape itself, you inflicted other violence on the young victim to the point where she seriously feared for her life.

You clutched her around her neck and almost strangled her during the ordeal.

You treated her in the most degrading way imaginable and then discarded her on the cell floor.

As you then hurriedly proceeded to leave the police station that Christmas morning the victim yelled out after you that she was going to lay a complaint and she called you an arsehole.

You did not seem concerned. You hurried across the road, hitched a ride and quickly left the scene.

You were no doubt confident that if the victim tried to make a complaint your misguided colleagues at the Mu'a police station would protect you and cover it up.

The other seriously aggravating feature I have already touched upon is the way in which you then collaborated with your acting supervisor in applying enormous pressure to have the victim withdraw the complaint she was eventually able to make through the Central Police Station.

I trust that the police authorities will take appropriate action, if they have not done so already, against that supervisor who I named it in my judgment.

You are not entitled to any credit for a guilty plea because you denied the charge throughout.

This meant that the victim suffered more trauma in having to give her evidence and relive her ordeal over again in a public setting coupled with having to endure a lengthy and detailed cross-examination.

In mitigation, as your counsel has stated, you have no previous convictions but that is to be expected because you would not have had the responsible job you did in the police force had you been a convicted criminal.

The probation officer reports that you are a married man with three children but your wife is currently in New Zealand for medical reasons.

It's impossible not to feel extremely sorry for your family but you should have thought about them before you committed the crime.

The probation officer states that you are remorseful and you now regret what happened and feel deeply ashamed for your family.

Inevitably, you will be unable to ever rejoin the police force.

After you were found guilty the court ordered a probation report.

The report the court subsequently received was helpful but of his own initiative the probation officer took it upon himself to arrange a restorative justice conference.

That had not been ordered by the court.

Two meetings were apparently held involving yourself, the victim and other support people.

The meetings were obviously a traumatic ordeal for the victim. It is said that she was crying throughout. She accused you of having ruined her life.

You did, however, own up and admit responsibility for your action and apologised. Your apology was said to have been accepted by the victim.

What is of concern to the court is that as a result of the restorative justice conference the probation officer has been able to recommend a sentence of 100 hours community work and that was something that had apparently been agreed to by the participants at the restorative justice conference.

There may well be a place for restorative justice but it is certainly not in a situation like the present where you have been tried and found guilty of very serious offences.

In relation to the facts of the present case, how anyone could seriously suggest that an appropriate punishment for such a heinous criminal act would be 100 hours of community service is quite beyond me.

Having taken into account all the above factors as well as the submissions made by counsel this morning I consider that the appropriate sentence in your case on the rape count is seven years imprisonment and you are convicted and sentenced on that charge accordingly.

On each of the two indecent assault charges, you are convicted and sentenced to two years imprisonment. All the sentences are all concurrent making seven years in total.

I have given careful consideration to the question of suspending part of the sentence and I have taken into account everything your counsel has said in submissions and all the factors referred to by the Court of Appeal in R v Motulalo [2000] Tonga LR 311.

You did not co-operate with the authorities. On the contrary you did your very best to interfere with the course of justice by applying pressure to have the complainant withdraw her complaint.

Such conduct cannot be seen to be condoned in the slightest way by this court.

The seriousness of the offending is grave and there is a need for an effective deterrence to send a clear message to other members of the police force never to abuse their position of trust by taking advantage of vulnerable people held in their care and custody.

The effect on the complainant of the whole ordeal, in my judgment, has been very considerable indeed. As she said to the probation officer, it has ruined her life.

In all the circumstances, I do not consider it appropriate to suspend any part of the seven year sentence.