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R v Muli [2022] TOSC 25; CR 200 of 2021 (13 April 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 200 of 2021

REX

-v-

LAVAKEI’AHO MULI

BEFORE HON. JUSTICE NIU

Counsel : Mrs. ‘Aunofo Fifita ‘Aholelei for the Crown.

: The accused, Lavakei’aho Muli, for himself.

Plea : Guilty on 7 December 2021

Report : by Probation Officer, Kelela Tu’itupou on 28 February 2022.

Submission: by the Crown on 28 February 2022.

: of the accused on 31 March 2022.

Sentencing : 13 April 2022

SENTENCING

Offences

[1] Lavakei’aho Muli, you have committed 3 serious indecent assaults on a 14 year old girl at Nuku’alofa on 11 June 2021 by touching her breasts and her vagina. You admitted that you committed those 3 offences and you pleaded guilty when you were charged with them before me in this Court on 7 December 2021.

[2] The seriousness of your offences is that the girl was only 14 years and the law provides that any girl under 15 years of age cannot, in law, give any consent which would prevent an act being an indecent assault on her. That means that it does not matter that you thought that she was over 15 years old or that she told you that she was 18 years old. The law places the responsibility upon you to ascertain the age of the girl. If you do not do so, then you are guilty, if the correct age of the girl is under 15 years, as it was in this case.

No previous conviction

[3] Crown counsel Mrs. ‘Aholelei says that you have no previous conviction.

Report

[4] The probation officer, Kelela Tu’itupou, has prepared a report on you based on information which you and the town officer of Veitongo have provided to her.

[5] She says that you are 68 years old, that you are married and that you have 4 children but that 2 of them were adopted out and that you now live with your wife and the remaining 2 children. She says that you used to work in constructions but that your health no longer allows you to do that and that you have now been working as a security at the Vaiola Hospital, earning about $2.00 per hour. The village town officer says that you are a decent person and are a helpful person in the village.

[6] The officer says that you told her that when you first met the girl, she told you that she was 18 and that she agreed that you have sex with her, but that at the motel, she told you her true age and that you were shocked and that was why you stopped and that you then left the motel.

[7] You told the officer that you are remorseful for what you have done and that you have learnt your lesson. You told her that you wanted to go and apologise to the girl but you do not know where she lives.

[8] She however has reservation that you would not re-offend. This is because you told her that you would be more cautious in future in having relationship with girls to ensure they are of legal age. She says that you were preying on a young school girl who you were aware was a minor. She says there is still a risk that you would reoffend because you still intend to pursue sexual gratification outside of your marriage. She says that you need counselling.

[9] She therefore recommends that your sentence be imprisonment but that part thereof be suspended on condition that you be on probation, live where directed and to complete a program on sexual violence on young girls as directed by the probation officer.

Victim impact report

[10] Mrs. ‘Aholelei for the Crown says that she has spoken with the girl and her mother and she has produced a victim impact report, that is a report on the consequence of your offences on the young girl.

[11] The girl just turned 14 on 6 June 2021 and you committed these offences on her on 11 June 2021. She is in form 3 at school. She told the officer that throughout the ordeal she was very afraid. She did not expect that someone at your age would do anything like that to her.

[12] She said that the incident happened during her exam week and as a result of what you did to her, she felt helpless and she could not concentrate on her studies and did not go to school for 2 days as a result and consequently she failed her exams.

[13] The mother was shocked when the police contacted her that day and she confirmed that as a result of what happened to her, her daughter did not want to go back to school, but that she encouraged her to continue with her studies. She said that when her daughter did go to school, she returned home crying because the students were gossiping about her and even pestered her about what happened. She said that they had to make arrangements for the daughter to be taken to and to be picked up from school every day as a result.

[14] The mother told counsel that her daughter is trying to get over what happened but up to now her daughter is still afraid to go anywhere on her own. Even going to the shop, the daughter insists that her younger siblings or her mother or her father go with her.

[15] Counsel concludes that what you have done to this girl has traumatised her and that it would take some time for her to get on with her life.

Summary of facts

[16] According to the summary of facts which the Crown has produced and which was copied to you, the girl was waiting for the bus by her school, and that you were there also waiting for a bus. You told the girl to stop your bus for you and that you would pay her bus fare for her.

[17] When the girl’s bus came you got on it with her and during the bus ride into town, you gave the girl $2.00 and you fondled her vagina outside her school uniform and you also touched her breast the same way.

[18] At the bus terminal in town, you followed the girl to her bus stop. You told her to come with you to the market to do a short errand but she refused and you told her that if she did, you would give her $20.00 and she went with you.

[19] You took the girl to a motel instead of the market and you took her to a room there where you gave her alcohol to drink. You then fondled the top of her breasts and she then began to cry and told you she wanted to leave. You tried to kiss her and cried even more, and you then both left the building.

[20] You took her and bought her an ice cream and left her at that place and you returned to the motel to get a refund on the money you had paid for the room. Whilst you were gone, another man who had seen you and the girl on the bus saw the girl and asked her if you had done anything to her and the girl burst out crying and said yes. The man then contacted and reported the matter to the police.

[21] When the police asked you about what happened, you admitted that you fondled the girl’s vagina and breast on the bus but you denied fondling the girls breast in the motel room.

Crown submissions

[22] Crown counsel has made submissions which have also been provided to you and she recommends that a starting point for consideration of your sentence for fondling her vagina be 2 years imprisonment. She says that another 12 months be added to that so that your sentence be 3 years imprisonment because of the vast age difference between you and the girl, the premeditation of your planning and execution of these offences and the terrifying effect and trauma which your offending has caused to the girl. But that in view of your guilty plea and your previous good record, she recommends that 6 months be deducted leaving a final sentence for you of 2 years 6 months imprisonment.

[23] As to suspension, counsel recommends that the final 6 months of that 2 years 6 months be suspended, in view of your previous good record.

[24] Counsel bases those recommendations on sentences which have been imposed in 3 cases where similar serious indecent assaults were committed:

(a) Rex v P.F (CR 212/2019) where the accused was convicted after trial of serious indecent assault when he put his hand inside his 17 year old step-daughter’s underpants and fondled her vagina and also of fondling her breast outside her clothing. He was sentenced to 3 years imprisonment for fondling her vagina and 2 years for fondling her breast, but both to be concurrent. Of that 3 year sentence, the last 12 months were suspended on account of the accused previous good record.

(b) Rex v Tu’i (CR 106/2020) where the accused, who was 66 years old, pleaded guilty to serious indecent assault on a 15 year old girl. He lured the girl by calling out to her for her help and by pushing her onto the bed and then lifting her skirt and sucking her breast. He was sentenced to 2 years imprisonment with the final 6 months being suspended for 1 year.

(c) Rex v Tauki’uvea (CR 80/2016) where the accused who was 47 years old pleaded guilty to serious indecent assault in respect of a 12 year old girl which consisted of fondling her breasts, buttocks and thigh, groping her breasts and touching her lips. A starting point of 18 months was increased to 2 years for the age disparity and substantial impact on the girl for the fondling of the breasts assault. For the groping of the breast and touching the lips, which were treated as separate offences unconnected with the other offence, he was sentenced to 6 months imprisonment which was to be added to the other sentence of 2 years making a total of 2 years 6 months, but with the last 6 months being suspended for 12 months for 12 months on conditions.

Your submissions

[25] You made your submissions in mitigation in Court on 31 March 2022. You said that the girl had come and asked you for money 3 times and that you went with her and that she agreed to what you did to her but that later she said that she was 14 years old.

[26] You asked me that you be put on probation. You said that you were remorseful for what you did and that you would not do it again.

[27] You said that you still work as security, for nearly a year now, after having been a farmer before. You said you still live with your wife and with one of your 2 daughters, the other one being married and has one child.

[28] You said you have no ailment and that you have behaved and have been good and you asked me for mercy to let you be on probation or suspension.

Consideration

[29] In considering your sentence, I have to accept that young children, in particular, young girls, must be protected from sexual assaults and indecencies. Everyone knows that and everyone has a responsibility to ensure that young girls do not come to any harm especially sexual harm. You, yourself, ensured that your 2 daughters had come to no such harm when they were young like this girl. The law says that it is not a defence for anyone to say that such young girl consented to what was done to her. That shows how serious this country wants to protect its young girls. The law imposes a sentence of imprisonment of up to 5 years for serious indecent assault on a young girl such as you have done in this case.

[30] You have read and have heard what has happened to this girl as a result of what you did to her. She has suffered shame and indescribable agony from being gossiped by her peers at school and no doubt in her village. The harm you have caused her is far reaching and endless. It is not known when it would end. You may be punished for the offence but that would not end the harm you have caused to her, or put everything right again for her. She will live with the harm you have caused for the rest of her life.

Imprisonment

[31] I therefore consider that the Court has been correct to have sentenced those accused persons referred to by Crown counsel to imprisonment for the offences of serious indecent assault which they committed, and I do not see any reason why you should not be sentenced to the same imprisonment as well.

[32] I consider that any person who touches or fondles any young girl’s vagina whether underneath her clothing or outside her clothing, should be sentenced to at least 3 years and for the fondling or touching her breasts on or under her clothing, he should be sentenced to at least 2 years. I therefore agree with Crown counsel that your sentence for fondling the girl’s vagina be 3 years and that the fondling of her breast be 2 years.

[33] But whereas in Tauki’uvea’s Case, his offences were considered to be separately committed and therefore they warranted separate and cumulative sentences, I consider that your assaults although committed in 2 different places, namely the bus and the room, they were part and parcel of the same continuous plan you perpetrated upon her. I would therefore not sentence you cumulatively but concurrently for all the 3 serious indecent assaults. That is, your sentence should be 3 years for touching her vagina and 2 years for touching her breast but that they be served concurrently.

Suspension

[34] As to suspension of those sentences, I agree with the probation officer and with Mrs. ‘Aholelei that you be granted a period of suspension on account of your previous good record and of guilty plea. By pleading guilty you have saved the girl from the embarrassment of coming to Court and telling the Court the horror of the ordeal she had got herself into as you had planned and perpetrated on her. Because of that, I see some likelihood of rehabilitation in you. I consider that you would be likely to take the opportunity offered by a suspension, though partial, to rehabilitate yourself. I also consider that you have cooperated with the police when you were arrested for these offences.

[35] I therefore consider that you only serve 2 years of the 3 years of your sentence, but I agree with the Probation Officer, that you would need counselling on account of your statement to the officer that you would be more cautious with young girls in future, especially with regard to their correct age. You should undertake that counselling course as part and as a condition of the suspension of your sentence.

Sentence

[36] Accordingly, Lavakei’aho Muli, I sentence you as follows:

(a) For the offence of touching the girl’s breast as charged in count 1 of your indictment and to which you have pleaded guilty, to 2 years imprisonment.

(b) For the offence of touching the girl’s vagina as charged in count 2 of your indictment and to which you have pleaded guilty, to 3 years imprisonment.

(c) For the offence of touching the girl’s upper breast as charged in count 3 of your indictment and to which you have pleaded guilty, to 2 years imprisonment.

(d) All 3 sentences in (a) (b) and (c) above shall be concurrent and that the final year of the 3 years be suspended for a period of 2 years from the date of your release from prison, upon the following conditions:

(i) that you attend at the office of the probation officer within 48 hours after you are released from prison;

(ii) that you live and work where directed by the probation officer;

(iii) that you take and complete such course or program on sexual violence on young girls as the probation officer shall direct; and

(iv) that you do not commit any offence which is punishable by imprisonment within the period of 2 years of your suspension.

Prohibition

[37] I order that no person shall publish or cause to be published in any media whatsoever any particular of the young girl who is the subject of these offences whereby her name or identity may be revealed. Any person breaching this order shall be liable and be punished for contempt of court.

Niu J

NUKU’ALOFA: 13 April 2022. J U D G E