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R v Tu'ifua [2010] TOLawRp 11; [2010] Tonga LR 80 (2 July 2010)

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

CT 70/2009

R

v

Tu'ifua

Ford CJ
2 July 2010

Sentencing – incest – guilty plea – imprisonment and divesting of authority over his daughter

The accused pleaded guilty to five counts of incest contrary to section 132 of the Criminal Offences Act (Cap 18). The victim in each case was his daughter. An experienced social worker was appointed amicus curiae to assist the court in its sentencing role. The maximum sentence for incest was 10years imprisonment and it was immaterial that the sexual intercourse may have been with the consent of the female person.

Held:

1. Having been raped by her uncle at the age of 10 the victim was particularly vulnerable. She was entitled to be able to rely on her parents for all the emotional support and protection that she so desperately needed. Instead the accused took advantage of her vulnerability and abused his position as a trusted parent. The court found that element of his offending was a very significant aggravating factor.

2. Had it not been for the guilty plea, the court would have imposed a sentence of eight or nine years imprisonment. The accused was convicted and sentenced on each count to seven years imprisonment. The sentences were concurrent making seven years in total. It was not appropriate to suspend any part of the sentence.

3. The court also made the following further orders pursuant to section 132(4) and (6) respectively of the Criminal Offences Act. First, the accused was divested of all authority over his daughter, and secondly, her councillor at the Women's Crisis Centre was appointed her guardian until the age of 21 years or further order.

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown : Ms 'Atiola
The accused appeared in person

Sentencing remarks

[1] You are appearing for sentence this morning having pleaded guilty to five counts of incest contrary to section 132 of the Criminal Offences Act (Cap 18). The victim in each case was your daughter, 'Ilaisaane. Although you were charged with five counts of incest between the years 2006 and 31 December 2009, it is clear from the information before the court that your offending between those years was frequent and sustained and, for the record, I note that you accept that that was indeed the situation.

[2] Apart from the summary of facts which has been read out, the court has before it a helpful probation report and an extremely thorough and comprehensive victim impact report provided by 'Akanesi 'Aho, an experienced social worker qualified in New Zealand. Mrs 'Aho was appointed amicus curiae to assist the court in its sentencing role.

[3] Your daughter is now 19 years of age. She claims, according to the social worker, that the offending began in 2005 when she was 14 years of age. When that was put to you by the social worker, you first said that your daughter may be right but then you retracted that acknowledgement and claimed that the offending began in 2006 and, of course, 2006 is the first year mentioned in the indictment. Your daughter at that stage would have been 15 years of age.

[4] The maximum sentence for incest is 10 years imprisonment and under section 132 (2) of the Act it is immaterial that the sexual intercourse may have been with the consent of the female person. In a 1989 English Court of Appeal decision simply reported as Attorney General's Reference (No 1 of 1989) Chief Justice Lord Lane noted that incest may well be a situation which arises more often in the community than is generally realised and it always presents the sentencing judge with formidable problems. His Lordship went on to observe:

"More often than not the offender is a man who has never been in trouble with the law before. He will usually be in his 50s or 60s. In prison he is likely to be segregated from his fellow prisoners and on release from prison he will in all likelihood be without family and friends."

[5] Those observations would seem to cover your own situation. You are 63 years of age and you have never been in trouble with the law before. Earlier you were a construction worker but in more recent years you have maintained the family plantation and gone fishing from time to time. You are married with eight children, five sons and three daughters. The victim is your third youngest child. She left school after her class three year at Fua'amotu Government Primary School. The social worker comments that this would indicate she most likely had cognitive problems and could not cope with the school programmes.

[6] You have pleaded guilty at the first opportunity and you are entitled to credit for doing so. The probation officer reports that you are genuinely remorseful and you deeply regret your foolish action. He further reports that you have faced up to the fact that you have ruined your daughter's life and you are prepared to serve the sentence that I will shortly impose. Whether you are really aware of the enormity of your criminal acts, however, is something that I am not so sure about.

[7] The social worker's report discloses that when your daughter was 10 years old she was raped by an uncle while her aunt was in the same room watching her husband carrying out the sexual abuse. No one can possibly begin to imagine the traumatic ordeal that sordid experience must have been for your young daughter. You were aware of that incident because you and your wife took your daughter to Vaiola Hospital for a medical examination. The uncle was charged with rape but for some reason, which is not apparent from the documentation before the court, the charge against him was dismissed.

[8] The point I make about that incident is that, as the girl's father, you would have been aware of the enormous psychological harm it would have inflicted on your daughter. You would have been aware of her vulnerability resulting from that sexual abuse. Your daughter should have been able to rely upon both yourself and your wife for all the additional emotional support she would have needed in her formative years to cope with the after-effects of such a horrible experience. Instead, as the facts of this case reveal, you did the exact opposite. You took advantage of her vulnerability to satisfy your own deviant sexual desires.

[9] The picture painted by the social worker of your family's domestic situation makes disturbing reading. Your wife admitted to having herself been raped by her sister's husband, the same man who raped your daughter when she was 10 years old. For much of your marriage, your wife was preoccupied in caring for her own mother and attending her community weaving group (toulalanga) where she would spend virtually every day of the week apart from Sunday. Her routine was that she would leave home around 8 a.m. and return back home sometimes after 10 p.m. or midnight, and on other occasions, if the group had to finish a mat by the next day, she would not arrive home until the following morning. In other words, your wife was away from home most of the time and, as the social worker reports, in this way she failed in her responsibilities as a mother. Your daughter was left to fend for herself and to do the domesticated duties at home including the cooking for you and the rest of the family.

[10] The prosecutor in the summary of facts and the social worker in her report describe how the offending began one day when your daughter was home alone tidying up the house. You walked into the room and kissed her on the face and she then became uncomfortably aware that you were attracted to her. Two days later when your wife had gone to a mat weaving session and your other children were out somewhere you entered your daughter's bedroom, covered her mouth with your hands and started kissing her face before performing oral sex and then having sexual intercourse with her. The social worker goes on to say, "this incest went on for years." Your daughter could not remember how many times a week over the years. She said it became normal for her to conform to your wishes. However sometimes it got too much and she couldn't cope with your demands and so she would run away from home for several days.

[11] The social worker noted that being ignorant of how inappropriate the behaviour was, your daughter stated that there were times when she enjoyed the illicit relationship with you because you promised to leave her mother and marry her -- your own daughter. It is difficult to imagine the impact those perverted promises from her own father would have had on the already sexually confused mind of such a young girl. Your wife apparently opted to avoid facing up to the reality of your behaviour even though, according to the social worker, she had an inclination about what was happening. She thought it was immoral even to contemplate such grotesque thoughts.

[12] The social worker asked your daughter how she had felt when she was being sexually abused by you over the years and she replied that she felt shameful, bad, not right and yucky but she was afraid because you had threatened to kill her if she told anyone. As the prosecutor noted, you have a very violent temper. Your daughter told the social worker that it became normal practice for you to have sexual intercourse. Whenever her mother left the house and the boys were away you would come and take her by the hand and lead her inside the house where you would have sex. Your daughter said that on one occasion her mother caught you kissing her on the face and fondling her breasts and her mother screamed at both of you. You took your wife outside and calmed her down telling her that it was no more than a goodnight kiss.

[13] The last time that you had sex with your daughter was on New Year's Eve 2009. In January 2010 your daughter disclosed to her cousin who was visiting from New Zealand what had been going on. The cousin told her own mother and then a formal complaint was made at the Mu'a Police Station.

[14] Since then your daughter has been looked after by a councillor at the Women's Crisis Centre. She has made reasonable progress. She told the social worker that she feels safe at the Women's Refuge house and that she had learned a lot of different things and many life skills that she did not know about before. She would like to go back to school so that she can learn how to cook and one day she hopes to become a chef.

[15] Your daughter emphasised to the social worker that she did not want to see you again. She said that she is scared that one day you will come back and abuse her again. She stated that you should be sent to jail for ever.

[16] As I said, the reports before the court make disturbing reading. The social worker concludes that over a period of several years you enslaved your daughter for sex threatening to kill her should she tell anyone about the relationship between you. She has recommended that in sentencing I take into account the immense harm that you have inflicted on your daughter. She has also recommended that your daughter needs to continue receiving counselling at the Woman's Crisis Centre for some time before she will be able to return to her family again.

[17] In the English case I cited earlier, the Court of Appeal made reference to the function of the criminal law in the field of sexual offences. The court adopted a passage from the report of the 1957 Wolfenden Committee which describes the function in these terms:

"To preserve public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced or in a state of special physical, official or economic dependence."

[18] That passage really summarises the situation your daughter was in. Having been raped by her uncle at the age of 10, she was particularly vulnerable. She was entitled to be able to rely on her parents for all the emotional support and protection that she so desperately needed. Instead, what you did in the cruellest imaginable way was to take advantage of her vulnerability and abuse your position as a trusted parent. I find that element of your offending a very significant aggravating factor.

[19] Had it not been for your guilty plea, I would have been looking at a sentence of eight or nine years imprisonment. Taking into account all the factors I have mentioned, however, the sentence I now impose is as follows. You are convicted and sentenced on each count to seven years imprisonment. The sentences are concurrent making seven years in total. I do not consider that it is an appropriate case for suspension of any part of the sentence. I will, however, backdate the commencement of the seven-year term to the date when you were arrested and taken into custody, namely, 2 February 2010.

[20] I make the following further orders pursuant to section 132(4) and (6) respectively of the Criminal Offences Act. First, you are divested of all authority over your daughter, 'Ilaisaane, and secondly, her councillor at the Women's Crisis Centre, Ms Leti Siliva, is hereby appointed her guardian until the age of 21 years or further order of this Court.