IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

AC 4 of 2012
[CR 69 of 2011]

BETWEEN:

REX
Appellant

AND:

TEVITA FAIOSO VAKE
Respondent

Coram: Salmon J 
Moore J 
Handley J

Counsel : Mr. Kefu (Solicitor General) for the Appellant 
Mr. Tu'utafaiva for the Respondent

Date of hearing: 4 October 2012

Date of judgment : 12 October 2012

JUDGMENT OF THE COURT

[1] This is an appeal by the Crown from the sentences imposed on the respondent. He was convicted on 18 January 2012 on one count of incest with his natural daughter contrary to section 172 of the Criminal Offences Act, and on one count of indecent assault on his adopted daughter contrary to section 124 (1) of the Act. The offences were committed on the same day in June 2008. The former carried a maximum penalty of 10 years imprisonment, the latter 5 years.

[2] The respondent pleaded not guilty and his daughters had to give evidence against him in open Court. His plea of not guilty is not an aggravating factor because he was entitled to defend the charges but he has not earned the discount allowed for an early plea of guilty where the offender demonstrates genuine remorse. This offender has shown no remorse for these crimes. 

[3] On 3 February 2012, the sentencing judge imposed sentences of 3 and 2 years for these offences which were wholly suspended conditional upon the offender being of good behaviour and committing no further offending during the suspension period. On 16 March 2012, the Crown sought leave to appeal from these sentences on the grounds of their manifest inadequacy.

[4] On 21 March 2012, the Lord Chief Justice granted leave to appeal pursuant to sections 17B and 28 of the Court of Appeal Act. The offender has not attempted to challenge the convictions.

[5] The offences were committed in circumstances of aggravation. They were to some extent premeditated and pre-planned as the offender purchased hard liquor which he supplied to the victims. They did not consent to his sexual advances and he knew that they did not. The offences involved the use of some force against the victims, both involved gross breaches of trust, and there was a significant disparity in their ages, the offender then being 48, the victims 21 and 19.

[6] The sentencing judge referred to "the difficulties in the case…due to significant delay in reporting" the crimes to the competent prosecution authorities. However, the offender knew about these allegations almost immediately because his daughters reported them to their mother who confronted the offender with them. The victims also left the offender's house the same day. 

[7] He could not therefore have been surprised when the complaints were later reported to the police. The judge found that there was a valid reason for the delay because the victims were scared of the offender, and the delay did not affect their credit.

[8] On 18 January 2012 after the judge had convicted the offender, he adjourned the case for submissions on sentence. The offender and his wife were interviewed by the Probation Service and on 24 January 2012 its report was filed. It recommended a custodial sentence to reflect the gravity of the offences. The proceedings on sentence took place on 3 February 2012 when the judge passed the sentences previously referred to.

[9] He said that incest crimes were becoming more frequent, that this type of offending must be stopped, and that the way to do this was by the imposition of appropriate sentences to deter others from such offending. He noted that the second charge involved a clear breach of the trust owed to the second victim.

[10] By way of mitigation, the judge took into account glowing testimonials about the offender's previous good character and community work. He also took into account what he described as the inordinate delay in reporting these allegations to the police but in view of his earlier findings this could not be a mitigating factor.

[11] The glowing testimonials are entitled to little weight and cannot justify the suspension of these sentences because, regrettably, offences involving sexual abuse within the family are all too frequently committed by persons of otherwise good character.

[12] Moreover, and with great respect, the judge failed to explain how the total suspension of these sentences would help stop "this type of offending" and "deter others". In our view the suspension of the sentences would have the opposite effect, and send the wrong message to the community. The victims must have wondered why they had bothered to put themselves through the trauma of the trial.

[13] The explanation for these sentences appears from the transcript, although not from the judge's formal remarks on sentence. The offender is the sole breadwinner for his family which includes his wheelchair bound mother, his wife, his bedridden son who was disabled in an accident and another daughter.

[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.

[15] Sentencing involves the exercise of a discretionary judgment, and in general more than one sentence will be available, legally, to the sentencing judge. An appellate court does not substitute its view for that of the sentencing judge. The appellant must identify some error of fact or principle, or a disparity between the facts and the sentence that demonstrates that the latter was not a sound exercise of the discretion.

[16] The sentencing judge had the decisions of this Court in Mo'unga v R [1998] Tonga LR 154, R v Misinale (unreported) and R v Motulalo [2000] Tonga LR 311 to guide him in the exercise of his power to suspend the sentences of imprisonment he had imposed. 

[17] In Mo'unga, the Court at p. 157 having referred to s 24 (3) of the Criminal Offences Act 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. This consideration does not appear to be relevant in this case. This 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."

[18] In R v Misinale (above) the Court quoted this passage from Mo'unga v R and continued:

"Also relevant may be the seriousness of the offending, the need for an effective deterrence, the effect on the complainant, and the personal circumstances of the offender or those dependent on him."

[19] In R v Motulalo (above), a Crown appeal against the suspension of a sentence of 2 years imprisonment for attempted carnal knowledge of the offender's 9 year old daughter, the Court at p.313 reaffirmed the principles in Mo'unga v R (above) and R v Misinale (above). At p. 314, the Court continued:

"Later in that judgment the Court 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 reasons for suspending a sentence."

[20] The Court in Motulalo at p. 314 said that the only reason the primary judge gave for suspending a sentence was that the offender's wife had asked that he, as the breadwinner of the family, not be sent to prison, the Court continued: 

"The approach the judge adopted takes no account of the devastating effect that these events, and the sentence the judge imposed, is likely to have had on the complainant…We doubt that much weight should be placed on representations made by the respondent's wife. We accept that, if the respondent goes to prison, the family will suffer. That unfortunately is an all too frequent consequence of criminal offending. When regard is had to these factors, as well as the aggravating and mitigating features…we are satisfied that there can be no justification for suspending any part of the relatively short sentence of imprisonment…"

[21] In light of these principles, and given the objective gravity of both offences, and the presence of aggravating factors, it is clear that the judge's sentencing discretion seriously miscarried and this Court must intervene and re-exercise the discretion.

[22] The Crown did not challenge the sentences of 3 and 2 years imposed by the judge. Following a successful Crown appeal, this Court has generally imposed a sentence at the lower end of the available range because of the element of double jeopardy involved.

[23] The sentences of 3 years and 2 years will therefore be confirmed to date from today to be served consecutively, but the sentence of 2 years imprisonment is suspended for 3 years conditional upon the offender committing no further offence during the period of suspension. The sentence of 2 years imprisonment has been made consecutive because the relevant offence involved a different victim, and it has been suspended for the maximum period allowed by law as a deterrent for the protection of the offender's other daughter who may still be living at home when he is released.

Salmon J

Moore J

Handley J