Siasau and the complainant were both employed by a company which operated a yacht yard in Vava'u. Siasau was the manager and the complainant was one of several employees. The offence occurred in 2020.

The Crown defended the sentence with the Director of Public Prosecutions, Mr Lutui accepting that the offending was at the lower end of the spectrum of indecent assaults but said it was within the judge's discretion to impose the sentence he did, said the Court.

He argued that the offending was no less serious than the assaults in the authorities relied on by the Crown at sentence and that the aggravating features also supported the sentence imposed.

"He relied on the breach of trust arising from the employer/employee relationship and the humiliation and injury to reputation suffered by the complainant by virtue of the appellant maintaining during the trial itself and when being sentenced that he and the complainant had a consensual sexual relationship."

The Appeal Court said, ultimately, Mr Lutui acknowledged that the starting point of three-years imprisonment advocated by the Crown at sentencing would have been appropriate, reduced by six-months to take account of the appellant's previous good character.

He said that a period of suspension is available but contended it should be no more than six-months.

The maximum sentence for serious indecent assault is five-years imprisonment.

In fixing an end sentence of four-years imprisonment without making any further allowance for Mr Siasau's previous good character, it must be inferred that Justice Niu had in mind a starting point close to the maximum. In that, he plainly erred as the Crown implicitly acknowledged, said the Court.

"We acknowledge the serious aggravating features associated with the offending of Mr Siasau."

H
owever, the offending was not as serious as the offending in the two cases relied on by the Crown at sentencing, R v PF and R v Kakao. In both cases, the starting point of three-years was reached, after a careful review of relevant sentencing authorities.

The Appeal Court then allowed the appeal and quashed the Supreme Court's sentencing. It then replaced it with two-years imprisonment, with the final year suspended conditional on him not committing an offence punishable by imprisonment during suspension.