The first sitting of Tonga's Court of Appeal ended at the Supreme in Nuku'alofa on April 17 and delivered judgements, that quashed a 13-years imprisonment sentence and replaced it with six-years for a man who was convicted of raping his sister-in-law while holding a knife to her neck.

This means that the rapist has only two years left to serve.

Filimone Hefa appealed against his 13-years imprisonment imposed by former Justice Robert Shuster after finding him guilty of rape on 6 March 2012, at the Nuku'alofa Supreme Court. He was initially to serve 10 years with three years suspended.

However, in allowing the appeal the Court quashed the sentence imposed in the Supreme Court and replaced it with six-years imprisonment with the last three years to be suspended for three years, which meant he would only have around two-years to serve.

In their judgment, the Court of Appeal said the judge made no reference to the starting point.

They noted that 'Aminiasi Kefu, who acted for the Crown, said the starting point in Tonga for rape sentencing is five-years imprisonment. He acknowledged the sentence imposed was manifestly excessive.  

"We accept his acknowledgement so the question is the appropriate sentence in this case," stated the Court of Appeal.

Kefu submitted the proper range for the offence in this case was six to eight years with the final two-years suspended for two years, which he thought should be reduced to a range of three to five years with part suspended, after considering material provided by Fatai Vaihu, the counsel for the appellant.

Dependant child

The submission was in regards to the condition of the appellant's two-year-old son with his wife. A report from Dr 'Aho a pediatrician specialist reported the child suffers from a severe condition that makes him totally dependent on his mother. The child is immobile and unable to communicate, while his longterm prognosis is poor. The 23-year-old mother in a statement said the child requires 24-hour care and that her husband's family is only able to provide limited help and she cannot handle it anymore.

Vaihu submitted that the starting point of five years should be reduced to three-years with the final two-years suspended.

"Having considered material supplied by Vaihu we are prepared to treat this as a special case. However, the seriousness of the offence itself must be reflected in the sentence. The generous suspension proposed reflects the matters raised by Vaihu," said the Court of Appeal.

Knife

"The serious aggravating factors in this case were the use of the knife, the threat to kill, the relationship between the victim and the appellant and the impact of the offending in a cultural sense. The offence occurred at the home of his wife's family. The only real mitigating factors for the appellant is that he is a first time offender."

The Appeal Court said leaving aside the question of the child's condition, they considered the appropriate sentence is at the highest end of the range originally submitted by Kefu. As to the question of suspension of the last part of the sentence, the pre-sentence report suggested that the appellant is at a low risk of re-offending. 

The Court then accepted submission from Kefu that a suspended sentence would assist in rehabilitating the appellant.

10 appeals

The Court of Appeal presided over by Mr Justice Peter Salmon, Mr Justice Ken Handley and Mr Justice Sir Peter Blanchard dealt with 10 appeals, including the two rape cases.

The Appeal Court dismissed a separate appeal against conviction and six-years imprisonment sentence imposed on a 67-year-old man who was convicted of raping a 12-year-old girl.

Former Justice Shuster had found the then 67-year-old Sione Malakai Uhi guilty of rape of a 12-year-old girl after a judge alone trial. He was sentenced to six years imprisonment.

The Appeal court stated, one of the grounds of appeal against conviction was that the finding of guilt was inconsistent with the evidence and that justice was not done.

"We agree with the Crown there was ample evidence on which the judge could convict including statements but not admissions made by the appellant. The judge did not regard him as truthful in relation to his account of what happened and considered the complainant and another witness who recounted a confession made by the appellant to be truthful and reliable witnesses."

The judges were satisfied that the appellant was rightly convicted and dismissed the appeal against conviction.

"In our view the rape of the 12-year-old girl could have justified a longer sentence than that imposed. While the judge's approach to a sentencing may be properly criticized, in that he took an inappropriate starting point, the ultimate outcome was a merciful sentence which took into account the appellant's age. The appeal against sentence is also dismissed," the Appeal Court stated.