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Moli v Police [2010] TOLawRp 28; [2010] Tonga LR 183 (21 October 2010)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

AM 23/2010

Moli

v

Police

Scott CJ
14 October 2010; 21 October 2010

Sentencing – common assault and indecent exposure – sentence harsh and excessive – quashed and replced with suspended sentence

The brief facts were that in February 2010 the appellant was at the complainant's home. He was a regular visitor to the home as he was courting the complainant's aunt. He was supposed to be helping the 9 year old complainant with her homework. As the complainant went to leave the room the appellant "stroked her right leg". Two days later the appellant was again at the home helping the complainant with her homework. The appellant "unzipped his trousers took out his penis and showed it to the complainant". The matter was reported to the police. The appellant was charged with common assault contrary to section 112(a) of the Criminal Offences Act and indecent exposure contrary to section 3(l) of the Order in Public Places Act. The appellant pleaded guilty to both charges. The Magistrates' Court was told that the appellant was aged 38 and had no previous convictions. He cooperated with the police explaining that he had acted as alleged because he "became aroused". The appellant was sentenced, on the first count to an immediate term of 6 months imprisonment. On the second count he received a fine of $50 in default 2 months imprisonment. He appealed against the sentence passed on the first count on the grounds that it was harsh and excessive.

Held:

1. While sexual assaults on children, especially those committed by persons in a position of trust, were to be viewed seriously, there was no principle that such assaults must inevitably result in a sentence of immediate imprisonment.

2. The maximum penalty for the offence with which the appellant was charged was 12 months imprisonment. The Magistrate approached sentence on the basis that the appellant's good character and guilty plea together entitled him to a 50% discount. The Court considered that this approach was not correct since the gravity of the offence itself should have been reflected in the starting point.

3. The seriousness of any indecent assault on a child must be marked by imprisonment, however, in the circumstances the sentence imposed was unduly harsh and wrong in principle.

4. The appeal was allowed, the sentence was quashed and 4 months imprisonment suspended for two years was substituted.

Cases considered:

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

R v Peterson [1994] 2 NZLR 533

Statutes considered:

Criminal Offences Act (Cap 18)

Order in Public Places Act (Cap 37)

Counsel for the appellant : Mr Piukala
Counsel for the Crown : Mr Lutui

Judgment

[1] The Appellant faced two charges. The first was common assault contrary to section 112(a) of the Criminal Offences Act (Cap 18) the second was indecent exposure contrary to section 3(l) of the Order in Public Places Act (Cap 37).

[2] The brief facts, which were accepted by the Appellant who pleaded guilty to both charges, were that on February, 2010 on about 4 pm the accused was at the complainant's home. He was a regular visitor to the home as he was courting the Complainant's aunt. He was supposed to be helping the 9 year old complainant with her homework. As the complainant went to leave the room the Appellant "stroked her right leg".

[3] Two days later the Accused was again at the home helping the Complainant with her homework. The Appellant "unzipped his trousers took out his penis and showed it to the complainant". The matter was reported to the police.

[4] The Magistrates' Court was told that the Appellant attempted to offer his apologies to the family and make amends but the family is "too upset and up to this day they have not been in contact at all"

[5] The Magistrates' Court was told that the Appellant was aged 38 and had no previous convictions. He cooperated with the police explaining that he had acted as alleged because he "became aroused"

[6] The Appellant was sentenced, on the first count to an immediate term of 6 months imprisonment. On the second count he received a fine of $50 in default 2 months imprisonment. He appeals against the sentence passed on the first count.

[7] Mr. Piukala suggested that the sentence was harsh and excessive. If a term of imprisonment was warranted then it should have been suspended. Mr. Piukala told me that since the events complained of there had been a change in the circumstances: the Appellant had now married the complainant's aunt and the family had forgiven him. I was handed a letter from the complainant's mother seeking "a lighter sentence".

[8] Mr. Lutui opposed the appeal. He did not accept that the Magistrate had erred in his approach and indeed the record revealed that he had taken all relevant considerations into account. Any changes in circumstances that had occurred since the sentence was passed were not sufficient to affect the outcome.

[9] While sexual assaults on children, especially those committed by persons in a position of trust, are to be viewed seriously, there is no principle that such assaults must inevitably result in a sentence of immediate imprisonment. Unfortunately Mr. Lutui was not able to assist me with any sentencing precedents.

[10] In R.v. Motulalo [2000] Tonga Law Reports 311, the Court of Appeal allowed an appeal by the Crown against a suspended sentence of 2 years, substituting an immediate term of imprisonment in a case involving a 37 year old man who assaulted his 9 year old step-daughter in circumstances which the Court described as "equivalent to attempted rape". The full circumstances are set out in the report at 312 40/50 and need not now be repeated.

[11] By comparison, the assault in this case can only be described as minor. It is perhaps for this reason that the Appellant was charged under section 112 (a) and not 125 (1) of the Act.

[12] The maximum penalty for the offence with which the Appellant was charged is 12 months imprisonment. As appears from the record the Magistrate approached sentence on the basis that the Appellant's good character and guilty plea together entitled him to a 50% discount. In my view this approach was not correct since the gravity of the offence itself should have been reflected in the starting point.

[13] In Motulalo (above) the Court of Appeal cited, with approval, the New Zealand case of R .v. Peterson [1994] 2 NZLR 533 in which the factors which may be taken into account in deciding whether to suspend a sentence of imprisonment are set out.

[14] The Appellant's behavior last February was low and shameful. He recognized this when he cooperated with the police, pleaded guilty and tried to apologize to the family. In the months that have elapsed the Appellant has been forgiven. He has married and is unlikely to be tempted to re-offend.

[15] In my view the seriousness of any indecent assault on a child must be marked by imprisonment however in the circumstance of this case I regard the sentence imposed as unduly harsh and wrong in principle.

RESULT:

Appeal allowed;

Sentence quashed;

4 months imprisonment suspended for 2 years substituted;

Term of suspension to commence on 2 July, 2010.