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

CR 65-67 2021

THERE IS A REPORTING RESTRICTION IN THIS CASE – NO DETAIL THAT COULD LEAD TO THE IDENTIFICATION OF THE VICTIM IS ALLOWED TO BE REPORTED.

R E X
V
Simione SAVIETI
Hingano PEAU                                  
Hau’alofa LATIUME

Sentencing remarks - corrigendum

BEFORE:			HON. JUSTICE COOPER
Counsel:			Ms. ‘A. ‘Aholelei for the Prosecution
					Mr. S. Fili for Mr. Savieti and Mr. Peau
					Mr. S. Tu’utafaiva for Mr. Latiume                        		
Date of Corrigendum:	13 May 2022
1.	At the sentence hearing I stated that if there was an error in my maths when calculating the overall sentences this could be corrected administratively. In relation to Mr. Savieti, I incorrectly added 10 months for count 2, to 4 years and 9 months in count 1, stating that was an overall sentence of 5 years and 1 month. Of course that was incorrect and the correct sentence is 5 years and 7 months. I make this correction to my calculations; the tariffs imposed for each offence remain as stated.

2.	Order made under section 119 that no detail is allowed to be reported that would lead to the identification of the victim in this case.

3.	On Saturday 5th September 2020 Lupe Palu and some friends met up together at her grandmother’s house in Ma’ufanga. It was early evening, about 1900 hrs. It started with three friends, another two joined them about an hour later.

4.	There was Miss Palu, Grace Filimoehala, the victim’s sister, and Erin Teumohenga. It was Marie Folaumoetu‘i and Katalina Fuka who joined them a little later.

5.	They drank vast quantities of alcohol. Four litres of alcoholic punch was consumed and after that was finished, two packs of Woodstock; so in a relatively short span of time they were all drunk.

6.	Around 2230 hrs the decision was made to go to a bar in Nuku’alofa.

7.	Katalina Fuka and Erin Teumohenga did not go; they had become so intoxicated and they had passed out.

8.	The other three, Miss Palu, Grace Filimoehala, and Marie Folaumoetu‘i hitched a lift from a neighbor and they went to the Reload bar. 

9.	Because she was so drunk Marie Folaumoetu‘i passed out almost immediately on arrival.

10.	Miss Palu was also extremely intoxicated to the point that as she entered Reload bar she too passed out, likewise Grace Filimoehala. These two must have regained consciousness at some stage because they were later dancing there.

11.	The bar closed at about 2300 hrs. Miss Palu somehow made her way out and then passed out again, in the road. A member of the public helped her to the other side of the road. She had no recollection of leaving the bar, nor any further substantial recollections until she awoke the next morning.

12.	In the intervening time, after leaving the bar and being helped across the road, she was approached by Mr. Savieti. He invited her to go with him and she agreed and got into a car full of young men she had never met before, including Mr. Peau.

13.	They arrived at their destination which turned out to be Ngele’ia and Miss Palu went with Simione Savieti, Hingano Peau and a young man called Tupou Savieti into a small hut in the bush.

14.	In the hut Simione Savieti raped Miss Palu while both Hingano Peau and Tupou Savieti remained there. She asked Mr. Savieti to stop. He did not.

15.	When he had finished he left her on the ground and Hingao Peau then raped her. She was crying through out the ordeal.

16.	When he had finished, Simione Savieti raped her a second time.

17.	Hau’alofa Latiume then came into the hut and he raped her.

18.	Then Simione Savieti took her to another hut and they shared a bed, sleeping until the next morning.

19.	She awoke approximately 0800 hrs the next day, Sunday, and found her shirt, trousers and underwear blood stained. She felt pain all over her body.  She found herself with Mr. Savieti and asked him what had happened.

20.	He told her they had, had sex; he even insisted he loved her and wanted to marry her.

21.	She just wanted to leave.

22.	At her insistence Simione Savieti stopped a passing vehicle to take her back to Ma’ufanga and to her grandmother’s house. On arrival she first spoke to her friend, Miss Erin Teumohenga.

23.	Miss Teumohenga was shocked at the state of Miss Palu that morning. She was withdrawn, quiet and plainly in pain and showed Miss Teumohenga her blood stained clothes.

24.	Miss Teumohenga went and woke Miss Palu’s sister Grace. Grace was told what happened.

25.	Miss Palu does not drink often. She had no idea what happened to her that night, other than people had sexual intercourse with her. She was left with, as she described it, “great pain” from what happened to her. 

26.	It was a young man, Tupou Savieti, who had been out with Mr. Savieti and Mr. Peau and other members of the Ngele’ia rugby players, who came forward and told police what had happened.

27.	He had gone with the others into Nuku’alofa and to the Reload Bar that night.

28.	He had seen Miss Palu at the bar dancing. Later he had seen her leave and fall into the road. 

29.	It was when he was in his friend’s car and about to go back to Ngele’ia that the boot opened and Mr. Savieti got in with Miss Palu.

30.	When the car arrived at its destination, Mr Tupou Savieti started to walk home, but saw that Mr. Savieti and others were leading Miss Palu to an abandoned hut.

31.	By turning on the light of his mobile phone he saw what they did.

32.	Mr. Simione Savieti had sexual intercourse with her, then Mr. Peau, then Mr. Simione Savieti again. All the time their victim crying, bloody and asking them to stop.

33.	They didn’t stop and in fact Mr. Simione Savieti rape her a second time. Then he left, went to meet his Ngele’ia rugby friends and they came to the hut. That is when Hau’alofa Latiume raped her.

34.	All the while she was crying and that is how he left her on the floor. Seemingly he would have raped her, a second time, but Tupou Savieti stopped him.

35.	He was out numbered that night and it seems he did what he could. He stayed with her at the hut and this appears to have averted more terrible predatory behaviour later when Mr. Latiume returned.

36.	In time the police were alerted.

37.	Miss Palu was examined on 6th September 2020 at 2330 hrs and found to have normal vital signs. 

38.	She had ecchymosis to her neck (“hickeys”).

39.	The sides of her abdomen showed minor bruising and the rest of it was soft but non-tender.

40.	About half way down her back, her thoracolumbar region, was tender with minor bruising and mild swelling.

41.	There was bruising and swelling on both arms and they were both tender to the touch.

42.	Her vagina showed signs of abrasions and superficial lacerations and blood staining.

43.	The Doctor concluded that she was suffering with minor soft tissue injuries and that there was a positive sign of recent vaginal injuries.

Discussion

44.	The maximum sentence for rape is 15 years. 

45.	The prosecution have referred me to a number of cases.

46.	The starting point for the offence of rape has been set at 5 years (R v Fa’asoso [1996] Tonga LR 42 and R v Holani Tonga LR [2016]). That is after a trial.

47.	R v Tu’ifua 79 of 2018 was also referred to me as comparable. Though the point was not made, the fact of the similarity of ages between the parties in that case (20 year old defendant and 26 year old victim) as well as the circumstances of rape (which were alluded to in submissions) are both germane; it happening when the victim had passed out through drink in the hut of the defendant. 

48.	This perhaps makes for the most helpful precedent for the instant case.

49.	In that case Lord Chief Justice Paulsen took the starting point of 5 years, following R v Fa’aoso and increased it to reflect the vulnerability of the victim. He referred to R v AM [2010 NZLR] 750, 764-765. Thus a sentence of 5 ½ years was arrived at. For his youth, lack of relevant sexual offences in his past and the support he played in his family unit, a 12 month discount was then deducted. That sentence was passed with the last 18 months suspended on conditions. 

50.	In Hall’s Sentencing (NZ) at 1.5.7(f) the vulnerability of the victim is a serious aggravating factor to consider; for example R v Ahsin  (CA 226/03, 16 February 2004, Glazebrook, Hammond and O'Regan JJ) sexual intercourse with a house guest who had become incapable of consenting through drink (there coupled with a breach of trust). 

51.	In the instant case there was the giving of the victim further alcohol when she arrived at the hut (interview of Savieti answer to question 14). This was at a time when he already could see she was “very drunk” (interview of Savieti answer to question 41). What in Hall’s is described as “stupefying” a victim. 

52.	In the instant case this is coupled with ignoring the victim’s plea for mercy. 

53.	The victim was “yelling” at Mr. Savieti to stop and then was crying through out the rest of her ordeal.

54.	She was crying when Mr. Peau had sexual intercourse with her and crying when Mr Latiume also did.

55.	She asked all three defendants to stop.

56.	None of them did.

57.	Crying is the most basic sign of distress and could not have been overlooked or misunderstood by these defendants. 

Victim impact statement

58.	The Probation Officer spoke to Miss Palu. She was 20 years old at the time of the offence and had never had sexual intercourse before that night.

59.	She recounted being aware of being in a dark place and hearing voices of unknown men laughing. She felt weak and in a lot of pain and was unable to protect herself.

60.	She remembered begging her assailants to stop.

61.	She recalled awaking in the morning. Finding herself naked and aching all over. That she was desperate to clothe herself and get home.

62.	She told the probation officer of how hard it was for her to tell her family what had happened and that it led to sustained periods of months of withdrawing and remaining isolated in her room.

63.	She blamed herself and felt great shame and struggled to report the matter to police.

64.	The probation officer spoke to the victim’s mother. She explained how she feared for her daughter and was worried she would commit suicide. How her daughter was wracked with shame and was afraid of being out and facing the public.

65.	Despite all this, both the victim and her mother have the strength of character to forgive her attackers and have said as much. 

66.	That said, Miss Palu is single minded in her wish that these young men never treat a woman like this ever again and said to the probation officer they should “…not do it to another person again.”
Mr. Savieti

67.	He was born on 21 July 1999 and is now 22 years old, 21 years old at the time.

68.	He is to be sentenced for two counts of rape.

69.	He was interviewed by the police on 8th September 2020. He admitted that the victim was drunk when he had sexual intercourse with her and admitted that doing so at a time she was blacking out through drink is a crime.

70.	Yet at his arraignment he pleaded not guilty and only changed his plea on 19th November 2021 at the mention hearing the Friday before the trial.

71.	His pre-sentence report noted he is now 22 years old. He relies on his family for income and has struggled with drink and drug problems since dropping out of ‘Atele College in 2019.

72.	The report writer notes that he presents problems at home, where he still lives with his family and in his community.

73.	That while he accepts what is said of him and his actions that night, there has been no apology and beyond his guilty plea there is no remorse.

74.	He is assessed as being a high risk to society.

75.	He, as well as Mr. Peau both changed their pleas the first day of trial.

76.	In each case this has extended the victim’s distress. 

77.	That said, both defendants are young and they did finally do the right thing. Entrenched thinking can be so hard to break out of, especially for young people and in Mr. Savieti’s case I will take an exceptional view when it comes to discount for his pleas of guilty. He can not receive the fullest discount of 30% for a timely guilty plea but he will be given a 15% discount as ultimately he did plead guilty and a trial was avoided.

Mr. Peau

78.	His date of birth is 24 July 2002.

79.	He is now 19 years old. He is to be sentenced for a single count of rape.

80.	He was interviewed by police. He admitted that the victim was drunk when he had seen her with Mr. Savieti.

81.	He conceded that the girl was too drunk to consent to sexual intercourse when he had sex with her and was incapable of resisting because she was so drunk.

82.	Mr. Peau was unable to understand that a woman who is intoxicated and unable to understand what is happening to her or around her can not consent to sexual relations in that state.

83.	The charge was put to him and he denied it, claiming that he thought she consented.

84.	Ultimately though, as mentioned above, he did plead guilty.

85.	That plea was entered on 19th November 2021.

86.	A pre-sentence report has been compiled. 

87.	It notes that the defendant has stood out at school and college attaining the rank of prefect and that he graduated from Vocational Technical Program in Carpentry, Electrician and Engineer studies in 2021.

88.	Not only that, he was Best Sport Senior Rugby Player in the College inter-competition.

89.	This promising future is not only eclipsed by this offence but his reaction to it.

90.	Repeatedly he told the report writer that the victim had “agreed to it”.

91.	The author of the report described him as insolent and noted that he has never made an attempt to apologise.

Mr. Latiume

92.	Mr. Latiume’s date of birth is 5 March 2001 and he is 21 years old.

93.	He was interviewed by the police on 11th September 2020.

94.	He conceded “She did not know anything as she was very drunk and she had no control over anything even though she was still awake, she did not know anything …” and that she would not have agreed to have sex with him were she not so intoxicated.

95.	Mr. Latiume pleaded guilty on arraignment to the single count of rape he faces.

96.	When he was confronted with the victim impact report by the probation officer he plainly was ashamed at his behaviour and said that he has sisters and would hope that nothing like this would ever happen to them.

97.	He had a patchy education and dropped out of school in 2015 but has turned that around and went back in 2021.

98.	He has faced problems in the past from alcohol and drugs but has now gone on to work with the Fakaola ‘Eku Kalofiama youth leadership program and it is noted that there is a positive improvement in his behaviour and a change for the better.

99.	Overall in his assessment by probation he is seen as remorseful and as taking full responsibility for his actions.

Sentence

100.	As set out above I adopt the approach of Lord Chief Justice Paulsen in R v Tu’ifua 79 of 2018 and start at a sentence of 5 year’s imprisonment and increase that to 6 years to reflect the vulnerability of the victim and the prolonged nature of the rape, that it was a gang rape and her begging for mercy went unheeded.

101.	This is to be the starting point for each defendant before any adjustment or reduction for guilty pleas and mitigation.

Mr. Savieti

102.	He is young, pleaded guilty but late. I have make allowanced for his youth so a reduction of 20% for his late plea of guilty.

103.	The sentence of 6 year’s (72 months) imprisonment, I reduce by 20% that is 14.4 months and I round that up to 15. That gives 57 months; 4 years and 9 months.

104.	The appropriate sentence for count 2 is 5 years’ imprisonment.

Concurrent or consecutive sentences ?

105.	Following the guidance in Pearce v The Queen 194 CLR 610 at 624, I fix the tariff for count 2, then consider whether they should be concurrent or consecutive. 

106.	I bear in mind that these two offences happened in relatively quick succession, the guidance in Hokafonu v Rex [2003] TOCA 3 at [51] being that they should be considered as a single course of criminal conduct.

107.	But because of the extremely serious nature of these offences it would be an affront to common sense and a negligence in my duty to simply make the whole of count 2 concurrent to count 1.

108.	Bearing in mind the totality principle and those matters I mention above I judge that a part of the sentence for count 2 ought to count towards his overall sentence.

109.	For the offence in count 2, I will impose a term of 5 years, but increase his sentence in count 1 by 10 months (1 year minus 15% for plea) to reflect the further criminality and the continued degrading behaviour he subjected his victim to. Therefore 5 years and 7 months.

110.	Because there has been little remorse, no apology and no empathy with his victim I am unable to discount his sentence beyond the reduction for his plea. I therefore do not feel I can reduce his sentence any further having already taken into account his youth when setting the starting point.

Suspension

111.	Turning to suspension. I have considered the Mo’unga principles and have in mind his youth. Though, because he represents a danger to society, but most importantly the gravity of the offence and the need to balance any period of suspension as against this. Therefore I feel I can only suspend the last 12 months of his sentence.

112.	Therefore he will serve 5 years and 7 months. The last 12 months suspended for 2 years on conditions that:

i.	He commits no offence punishable by imprisonment;
ii.	He report to probation on his release;
iii.	Live where directed by probation, and
iv.	Complete an anger management course and an alcohol and drugs rehabilitation course as directed.

Mr. Peau

113.	The 6 year starting point is reduced by 20% to give a sentence of 4 years and 9 months. In his probation report he still claimed that she consented and there appears to be no insight into his offending and so no meaningful remorse. I therefore do not feel I can reduce his sentence any further having already taken into account his youth when setting the starting point.

Suspension

114.	I have considered the Mo’unga principles and because of his age and the hope that he can be rehabilitated, I consider that some portion of his sentence ought be suspended. His insistence that the victim had consented amount to a complete lack of remorse, as demonstrated by their never have been an apology from him; so I consider there can be no reduction for mitigation but he merits  the last 12 months suspended for 2 years on conditions:

i.	He commits no offence punishable by imprisonment;
ii.	He report to probation on his release;
iii.	Live where directed by probation, and
iv.	Complete an anger management course and an alcohol and drugs rehabilitation course as directed.

115.	Therefore that is a sentence 4 years and 9 months imprisonment, the last 12 months suspended for 2 years on the above conditions.

Mr. Latiume

116.	The 6 year sentence is to be discounted by 30% for his early guilty plea. That is a reduction of 22 months from 72 and so 50 months.

117.	From that I take into account his desire to return to college, his work with the youth group and his empathy and I reduce his sentence by a further 6 months for that mitigation. That gives 44 months.

118.	That leaves a sentence of 3 year; and 8 months’ imprisonment. 

Suspension

119.	When I turn to considering suspension and the Mo’unga principles. I note his youth and that the chances for rehabilitation are promising even though the steps he has taken to that end are only recent. I remind myself that this is a very serious offence. I conclude that the last 12 months of his sentence should be suspended for 2 years on the following conditions :

i.	He commits no offence punishable by imprisonment;
ii.	He report to probation on his release;
iii.	Live where directed by probation, and
iv.	Complete an anger management course and an alcohol and drugs rehabilitation course as directed.

120.	I direct all prison sentences will be have reduced by any time served on remand.

121.	Finally, I make this observation: In this case there was video footage on a mobile phone of one of the witnesses that showed the victim at the bar later in the evening. It showed her demeanour and the state she was in. This appears not to have been reviewed by the police. As far as I can see it was not sought or served as part of the prosecution case. Prosecution counsel seemingly neglected to advise on its relevance even though it is mentioned in a witness’s statement.

122.	The routine review of mobile phones should be completed wherever possible and relevant material served. That their use is an adjunct to almost any activity a person is involved in nowadays should alert everyone to how essential that review is in criminal investigations.

	NUKU’ALOFA	 					 N. J. Cooper	    	    	   
 13 May 2022							J U D G E