The first sitting of Tonga's Court of Appeal ended at the Supreme Court in Nuku'alofa and delivered judgments, that reduced the imprisonment sentence of a man who was convicted of raping and indecently assaulting a 19-year-old girl, who was his close relative.

The Court of Appeal presided over by Mr Justice James Burchett, Justice Peter Salmon and Justice Michael Moore from April 16-27, dealt with eight cases, including four land cases, two civil cases, one criminal and one registration case.

Of these appeals, only one was upheld, which was by 'Uha'one 'Aisea (44) v Rex, who appealed on the grounds that the sentence imposed on him at the Supreme Court was excessive.

Justice Robert Shuster in September, 2011 sentenced him to 13-years imprisonment with the last three years suspended, meaning he was to serve 10 years, after he was convicted by a jury on both counts of rape and indecent assault.

In allowing the appeal the Court reduced the sentence to eight years imprisonment with the last two years to be suspended for two years, meaning he will only serve six years.

Allowed

In their judgment, the Court of Appeal said, that in the judge's sentencing he took the 13-years as his starting point, and he did not support this by any authority, but they said that the judge had correctly noted the "serous aggravating factor of the breach of trust."

However, the Court of Appeal said the maximum penalty for rape in Tonga is 15 years imprisonment and that is only appropriate for the very worst offending. The appropriate starting point for rape in Tonga was five years, which had not changed and was binding on judges in the Supreme Court.

In allowing the appeal, the Court of Appeal quashed the sentence initially imposed at the Supreme Court and replaced it with the new sentences set.

The Court of Appeal said the appropriate sentence on the rape charge after adopting a starting point of five years, is eight years imprisonment, and suspended the last two years of that sentence for two years.

There should have also been a sentence on the charge of indecent assault and imposed a sentence of 18 months to be served concurrently with the rape sentence, the judgment stated.

On 18 April, 2010 the offender invited the victim for a Sunday drive with himself and his family, which was consented to by her mother because she trusted him. But instead of collecting his family he drove to a beach location where the offences took place.

Dismissed

During the Appeal Court session only one case was dismissed with costs which was Fililava Moala against Public Service Commission and Government of Tonga.

He appealed against a judgement by Chief Justice who refused to grant him leave to seek judicial review on a decision by PSC to dismiss him from the public service.

The Court of Appeal said he was employed with the Prime Minister’s Office prior to April 2010 and had the responsibility of managing financial aspects at the office.

On 20 April, 2010 he was suspended and was subsequently dismissed for misconduct which was said to have been the theft of $7,000 from the office safe. He was then charged with theft which was dismissed by the Nuku'alofa Magistrate's Court.

"We are not satisfied that the Chief Justice was mistaken in refusing leave and we dismiss the appeal with costs," said the Court of Appeal.

Appeals

Meanwhile, the other appeals that were heard included one land case remitted back to the Land Court for trial, while the judgement on one case was reserved to be made later, and two were adjourned for the next Court of Appeal session.

Two other cases by Kisione Fakafanua v Faua Development Ltd was withdrawn and Apex Insurance Brokers v Samipeni Finau had settled theirs.