A man who raped his wife was sent to jail by the Lord Chief Justice, who sent out a clear message that in any civilized society unwanted sexual violence cannot be justified or tolerated.

The accused who was referred to as 'VP' [a pseudonym] had pleaded guilty to three counts of rape, causing serious bodily harm and domestic violence.

Lord Chief Justice Whitten sentenced him to five-years three-months imprisonment on May 22, at the Supreme Court in Nuku'alofa.

Beatings

The Court heard, on the night of June 9, 2019 the accused and victim were driving to their home, in Tongatapu. The accused was angry and upset about an earlier incident between them. He started beating the victim.

He told her they were going to their tax allotment, where there were plenty of knives so that he could stab her.

As they reached their house, the victim noticed the lights on a neighbour’s house were on, so she opened the door of the vehicle and ran to the neighbour's house. She asked the neighbour for help because her husband was going to kill her.

The accused came and grabbed the victim by her dress and pulled her away while beating her. The neighbour told the accused to stop beating the victim and take her back to their home to talk things out. 


The accused and the victim then went to their house. He told her to drink alcohol. He accused her of lying and of sleeping with another man, and continued to beat her and committed the rape.


The neighbour heard the victim's cries and reported the matter to police. The accused was arrested and admitted to the charges. 


The victim was taken to hospital that night and examined. She was found to have suffered bruising to her right eye consistent with her account of the beatings and abuse.

On the next day, the accused provided a letter to the police, addressed to the victim, in which he apologised and confessed to beating her. 


Marital rape

The Crown submitted, the aggravating features of this case included: the seriousness of the offending of marital rape and inflicted violence; serious breach of spousal trust and relationship and the offending was premeditated.

In addition, the accused had anger management issues as he threatened to stab her with knives, forced the victim to drink alcohol, while he abused her, when she fled seeking help he chased after her, she was forced to take off her clothes and was put in considerable fear.

The Court heard, the couple has four children. The victim is currently pregnant to the defendant. She continues to live with the defendant and their children.

The Chief Justice said it was observed at the outset that it is no coincidence that none of the comparative sentences presented by the Crown involved ‘marital rape’.

His research did not unearth any here in Tonga either. 


"Marital rape is a common but under-reported crime," he said.

Family Protection

In Tonga, the Criminal Offences Act does not distinguish between rape of a stranger or of a spouse or other relational partner. 

The Chief Justice said in short, rape is rape.

The essential characteristics are sexual violation without consent, regardless of any relationship between the perpetrator and the victim.

He said, the iintroduction of the Family Protection Act in 2014 sought to reinforce and 
accentuate that all persons in Tonga are entitled to be free and protected from domestic violence in any form, with section 29 expressly provides for additional prosecution under the Criminal Offences Act in cases such as the present.

"The message therefore ought be clear: in any civilized society, there are no circumstances in which resort to unwanted sexual violence can be justified or tolerated."

He said, in assessing the appropriate sentence, he gave regard to  the seriousness of the crime, the maximum sentence prescribed, the need to deter others, sentences imposed in other similar cases to achieve consistency, any sentencing guidelines given by an appellate court, the desirability of encouraging rehabilitation, the need to show society's rejection of the conduct, and any aggravating features such as the accused's previous criminal history, the effect on a victim, the age of the victim, the degree of any violence and the use of a weapon. 

Having regard to the circumstances of this case and the gravity of the offending, he adopted the well-settled primary starting point of five-years imprisonment. 

Jailed

On rape, the accused was sentenced to five-years and three-months imprisonment, 18-months for causing serious bodily harm and six-months for domestic violence.

These sentences are being served concurrently and backdated to when the accused was remanded in custody.

Due to mitigating factors such as the accused being a first time offender, having expressed genuine remorse and apologised, with the victim forgiving him, among others, the final 21-months of his sentence was suspended for two-years. This is on condition that during suspension, he must not commit any offence punishable by imprisonment; be placed on probation; not consume alcohol or drugs; and undertake and complete courses, as directed by his probation officer, on anger management and sexual abuse.