Naufahu v R [2018] TOCA 16; AC 9 of 2018 (20 July 2018)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 9 of 2018
[CR14 of 2016]

BETWEEN : SAIA NAUFAHU

Appellant

AND : REX

Respondent

BEFORE PRESIDENT PAULSEN

Counsel: Mr S. Fili for the appellant

Hearing: On the papers
Date of Ruling: 20 July 2018.

RULING

[1] On 23 May 2016 the appellant was sentenced after pleading guilty to one count of causing grievous bodily harm contrary to s. 106(1), (2)(a), (c) or (d) of the Criminal Offences Act and one count of Domestic Violence contrary to s. 28(1)(a) of the Family Protection Act 2013.

[2] The maximum sentence for causing grievous bodily harm is 10 years imprisonment and for domestic violence is 12 months imprisonment or a fine not exceeding $2,000 or both.

[3] The facts of the case are set out in the sentencing remarks of Justice Cato and for present purposes it will be sufficient to state that this was a most serious case of premeditated violence by a husband upon his wife by pouring hot water on her causing burns to 35%-40% of her body resulting in permanent scars and damage to her hand and eye.

[4] For the offence of grievous bodily harm Justice Cato sentenced the appellant to five and half years imprisonment with the last 18 months of his sentence suspended on conditions. On the offence of domestic violence the appellant was convicted and sentenced to a concurrent term of 10 months imprisonment.

[5] The appellant requires an extension of time to apply for leave to appeal and also leave to appeal against sentence. For the reasons that follow, I will not extend time for the appellant to seek leave to appeal but had an extension of time been granted leave to appeal would have been refused.

No grounds for an extension of time

[6] As far as extending time is concerned, the appellant was represented by Counsel when sentenced and is represented by Counsel in relation to this application. The appellant has filed an affidavit but provided no explanation for the delay of over two years in applying for leave to appeal. In those circumstances there is nothing before me upon which I could exercise my discretion in his favour.

The challenge to sentence

[7] The grounds advanced by the appellant in support of his proposed appeal are clearly hopeless and no purpose would be served in granting leave to appeal in any event. I shall deal with each of the grounds advanced in the order that they appear in the application for leave to appeal.

Ground one – provocation by adultery

[8] The first grounds is that Justice Cato failed to take into account that the victim was alleged to have committed adultery. In the application it is asserted that adultery is recognised as a matter of extreme provocation by s. 89(c) Criminal Offences Act and must be considered by the Court.

[9] Justice Cato was aware of the allegation that the victim had committed adultery. He was correct when he held that:

I do not think....any marital infidelity or suggestion of this on the part of the complainant, reduces the objective seriousness of the offending, and I do not take this into account in reducing the starting point [for sentencing purposes].

[10] The appellant’s reliance upon s. 89(c) of the Criminal Offences Act is entirely misconceived. Section 89 applies in cases of culpable homicide and this is not such a case. Furthermore, s. 89(c) is concerned only with the particular circumstance where ‘an act of adultery is committed in the view of the accused...’. Again this is not such a case.

Ground two – appellant’s personal circumstances

[11] The appellant says that Justice Cato did not take into account his family and personal circumstances. This is incorrect. Justice Cato had before him a detailed probation report, a victim impact report, letters of reference and Counsel’s submission all of which were considered. He also dealt with the accused personal circumstances fully and at some length in his sentencing remarks.

Ground three – discount of guilty plea

[12] The appellant asserts that he was entitled to a 1/3^rd discount for his guilty plea and that Justice Cato was not clear in what discount he was giving for his guilty plea.

[13] Justice Cato discounted the appellant’s sentence by two and a half years from a starting point of eight years imprisonment for all mitigating factors. The discount represented over 30% of the starting point and was in my view extremely generous in the circumstances, particularly given the attempts by the appellant to portray his actions as accidental and when combined with the suspension of the last 18 months of the sentence.

Summary

[14] The can be no suggestion of error on the part of Justice Cato on any of the grounds advanced by the appellant and the sentence was clearly not excessive.

Result

[15] The application for leave to appeal out of time against sentence is dismissed.

O.G. Paulsen
NUKU’ALOFA: 20 July 2018. PRESIDENT