Tu'itavake v Rex [2005] TOCA 11; AC 04-2005 (21 July 2005)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

AC 4/2005

BETWEEN:

NAKITA FOLAU TU’ITAVAKE
Appellant

AND:

REX
Respondent

Coram: Burchett J
Tompkins J
Salmon J

Counsel: Mr L. Niu for the Appellant
Mr Sisifa for the Respondent

Date of hearing: 15 July 2005
Date of judgment: 21 July 2005

JUDGMENT OF THE COURT

[1.] After trial before the Chief Justice and a Jury the appellant was found not guilty of murder but guilty of manslaughter. Webster CJ sentenced him to 10 years imprisonment, the final 2 years to be suspended for 2 years. This is an appeal against that sentence.

Factual Background

[2.] The following recital of the facts is taken from the notice of appeal. Mr Sisifa for the Crown accepts that it is an accurate account: The events recorded commenced at a nightclub:

(a) the deceased swore at the Appellant and punched at the Appellant which started a fight between the Appellant and the deceased during which Vaka, a friend of the Appellant, kicked the deceased in the mouth which caused it to bleed. That was in the night club and the fight was stopped and the Appellant and his 2 friends, Vaka and Mafile’o, left the nightclub to go home.

(b) the deceased, carrying a broken bottle like a knife, together with a friend, Tonga, went after the Appellant and approached him and his friends who were in their van, calling to the Appellant to come out and fight. The Appellant could not drive away because of other vehicles queuing out of the car park. He got out with the knife to scare the deceased off, and it did. The deceased backed off and they went away. The Appellant then got inside the van and drove slowly towards the exit behind other vehicles as well as in front of other vehicles.

(c) the deceased, carrying a big rock in his right hand, his friend, Tonga, carrying a piece of timber, and another friend, Kaiveloni, carrying a rock as well, came around by the exit and towards the Appellant’s vehicle. A rock thrown from some where had hit the roof of the Appellant’s van just before then. It was a new van. The Appellant could not drive away and could not run away and leave his new van for fear of further damage to it. He got out with the knife again to scare them away. He stood by the van as before. His friend, Taufa, got out and stood beside him too. The deceased ran to and attacked the Appellant with the rock, swinging it at his head; the Appellant ducked and swung his knife at the deceased, who then grabbed and struggled with the Appellant, during which the Appellant stabbed the deceased repeatedly, a total of 9 times, which only ended when Mafile’o, the Appellant’s other friend, called to the Appellant to stop.

[3.] As indicated above the appellant was charged with murder with an alternative charge of manslaughter. The defence to the murder charge was self defence which if successful would lead to an acquittal. The alternative defence was extreme provocation as provided for by s.89(a) of the Criminal Offences Act.

[4.] The manslaughter verdict indicates that the Jury rejected self defence but accepted the defence of extreme provocation.

Sentencing remarks

[5.] The Judge noted that the deceased was stabbed twice in the chest. One stab wound went right through his body. The Judge recorded his view that the Courts must take real steps to deter the ready use of knives in disputes. He took into account that the appellant was not the principal aggressor and that the crime was not premeditated but occurred in response to the deceased’s final attack.

[6.] The Judge said that the appropriate level for violence of this kind with a knife has to be 10 – 12 years, as it is at least in the middle of the range of seriousness.

[7.] He noted that the law always regards the killing of another as extremely serious and the penalty must reflect that. Sympathy cannot be allowed to supplant the duty to impose an appropriate penalty.

[8.] After taking into account the fact that the appellant was a first offender, his remorse and his apology to the family he imposed the sentence referred to above.

Submissions in this Court

[9.] Mr Niu for the appellant submitted that the whole of the sentence of imprisonment should be suspended. He said that the appellant did not cause, nor was he responsible for, the circumstances which caused the extreme provocation which deprived him of his power of self control. He submitted that the deceased caused the circumstances which led to his demise. He said that deterrence was not called for because the circumstances were unique to this case.

[10.] Mr Niu submitted that the Judge erred in implying that the appellant took the knife to this fight when in fact he generally kept it in his van for his fishing. He said that the Judge also erred in suggesting that an innocent life had been lost because the deceased was to blame for his death. Mr Niu also submitted that the Judge ignored the element of extreme provocation in this case. He referred to the statement in Archbold at Chapter 19 para. 66 that sentences approved by the Court of Appeal in England in cases of provocation mostly fall in the range of 5 to 7 years imprisonment. He referred also to the New Zealand Court of Appeal decision in Solicitor General v Kane, CA 154/98, 23/9/98 where the Court refused to increase a sentence of 4 years imprisonment where the offender defended himself with a knife when attacked, resulting in the death of the attacker. In that case, like this one, he carried the knife in his car for work purposes. He referred to the guidance given by the New Zealand Court of Appeal in R v Leuta [2001] NZCA 283; [2002] 1 NZLR 215 and affirmed in R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 at [128]:

“Culpability is higher in cases where manslaughter results from intentional harm. In such cases, the sentence imposed must reflect the need for deterrence of intentional conduct which risks serious harm or death. Other factors such as provocation or circumstances personal to the offender, which may diminish responsibility, may affect culpability significantly. Sentences in other cases where the death giving rise to liability for manslaughter is a result of intentional violence may provide guidance. But the culpability of each offender needs to be assessed in the particular context.”

[11.] For the Crown Mr Sisifa submitted that the Judge had taken into account all relevant issues including extreme provocation. He referred to (and said the Judge took into account) Attorney General’s Reference (No 33 of 1996) R v Latham [1997] Crim LR 140 CA [8]:

“Even when a particular type of manslaughter is isolated from the rest it has to be recognized that it covers a wide field, and if justice is to be done sentencers must not be put in strait-jackets, but for the reasons identified in this judgment it seems to us that where an offender deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation he should expect to receive on conviction in a contested case a sentence in the region of 10 to 12 years. The alternative would be to say that although the tariff should remain the same the indictment should contain a separate count in relation to the carrying of the offensive weapon for which a separate and normally consecutive sentence should be imposed, but that seems to us to be a somewhat cumbersome approach.”

Consideration

[12.] Sentencing in cases of provocation presents special problems to a sentencing Judge. As in all cases of manslaughter there can be no set tariff. In each case the task of the Judge is to determine the true culpability of the offender in the particular circumstances of the case.

[13.] Appellate Courts in this and other countries have affirmed that sanctity of life is a fundamental value and society demands that the taking of life be met with the appropriate condemnation. But that still requires that the sentence imposed be related to the circumstances of the particular offence and the particular offender.

[14.] An appellate Court must also bear in mind that the sentencing Judge, who has had the advantage of hearing the evidence, has a broad discretion as to the appropriate sentence.

[15.] In this case the Judge obviously took his starting point from the judgment of the English Court of Appeal in Latham. However it should be noted that in Latham the offender was carrying the knife when he went to the nightclub where the offence occurred. He said he carried it in case he had trouble with others with whom he had previously fought. In fact in that case the offender had received a sentencing indication before pleading guilty to manslaughter. For that reason the Court refused to interfere with the sentence imposed of 5 years.

[16.] In the present case we see no reason not to accept the appellant’s claim that he carried the knife for the purposes of his fishing business and to that extent the case may be distinguished from the tariff indication given in Latham. The circumstances have more in common with the New Zealand case of Kane.

[17.] We do not accept the suggestion that the Judge overlooked the extreme provocation when he came to sentence the appellant. He had presided over the trial in which provocation was an important issue and he had obviously taken Latham into account in fixing his starting point for sentencing. However the Judge does not mention one factor which we consider is relevant in mitigation of sentence. The pre-sentence report refers to a considerable degree of restitution having been made by the appellant to the deceased’s family.

[18.] Before turning to give our views on sentence there is one further matter to mention. In circumstances such as these a verdict of manslaughter may be reached on the basis of provocation or lack of murderous intent. The trial judge should determine which is the more likely explanation for the jury’s verdict, and give reasons for his decision. In this case as we have indicated we think it is clear that the Judge had provocation in mind.

[19.] The appropriate sentence for manslaughter where provocation is present was given extensive consideration by the New Zealand Court of Appeal in R v Edwards CA 371/04; 13/4/05. In that decision the Court discussed and referred to the work of the British Sentencing Advisory Panel which in March 2004 published a consultation paper: Consultation Paper on Sentencing of Manslaughter by Reason of Provocation. The panel considered in detail some 42 cases between July 2000 and June 2003 where juries had returned convictions for manslaughter on the grounds of provocation. The panel went on to review appellate authorities. They concluded at [26]:

Sentencing ranges (after a contested trial) to the extent that they may exist may be summarised as follows:

Sentencing range Case Features

[1.] 12 years Firearm carried and used after retaliation

[2.] 10 – 12 years Knife carried and used or great brutality

[3.] 7 years Moderate provocation and sudden retaliation

[4.] 5 years A high degree of provocation, sudden retaliation, strong mitigation

[5.] 3 years or less The highest degree of provocation including violent attack, even terror, evoking extreme passion

[Category numbers added]

[20.] We have also found the New Zealand decision of Kane of assistance. In that case Mr Kane was being attacked by two men. In the course of the attack he picked up a knife which he had in his car for work purposes and stabbed one of his attackers, killing him. He was sentenced to 4 years imprisonment. An appeal by the Attorney General maintaining that the sentence was inadequate was dismissed by the Court of Appeal. The principal difference between that case and this one was the finding by the Judge that the use of the knife was not premeditated. In this case it obviously was. On the other hand in this case the aggressors knew of the existence of the knife before they attacked the appellant. The appellant resisted the initial invitation to come out and fight. He tried to leave the venue but was caught in a line of cars. He was faced by two men armed with rocks and a piece of timber. One of them ran at him aiming the rock at his head. Obviously he needed to defend himself. Equally as obviously the force used to do so was excessive. There was a high degree of provocation met by sudden retaliation. Applying the principles set out above to the facts of this case we have concluded that the 10 years sentence imposed was excessive.

[21.] We conclude that this case comes within category 4 of the ranges set out above and that a sentence of 5 years imprisonment is appropriate. We would maintain the suspension of the final two years of the sentence to reflect the restitution which the appellant has made.

[22.] Accordingly the appeal is allowed and the sentence of 10 years imprisonment is quashed. In its place we substitute a sentence of 5 years imprisonment the final 2 years of which is to be suspended for 2 years from the date of release.

[23.] We make the following final comment. We endorse entirely the remarks of the Chief Justice concerning the use of knives in fights. If the appellant had brought the knife with him intending to use it in a fight the result would have been very different. But we have concluded this was not such a case.

Burchett J
Tompkins J
Salmon J