R v Talia'uli [2010] TOLawRp 33; [2010] Tonga LR 203 (8 December 2010)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 159/2009

R

v

Talia'uli

Scott CJ
8 December 2010

Sentencing – manslaughter of son – severe punishment – 15 years imprisonment

During the evenings of 4 and 6 September 2009 the accused inflicted such severe punishment on his son, aged 4, that he died on 7 September. The accused pleaded guilty to a single count of manslaughter. The maximum penalty for which he was liable was 25 years imprisonment.

Held:

1. The mitigating factors included no previous convictions, cooperation with the police, expression of contrition, and a plea of guilty. The aggravating factor was that he beat his son so brutally he lost his life and as a result his wife and surviving children were left in penury and dependent on support from friends and relatives.

2. The court took all factors into account and imposed a sentence of 15 years imprisonment. It was ordered that the last six years be suspended for three years on condition that he was of good behaviour and that he attended a Salvation Army rehabilitation course upon his release.

Cases considered:

Ditford (NSW CCA 17 March 1992)

DPP v Newbury [1976] UKHL 3; [1976] 2 All ER 365

Mo'unga v R [1998] Tonga LR 154

R v Prue [1974] 2 NZRL 392

R v Witika [1993] 2 NZRL 424

West (1989) 11 Cr. App. R (S) 33

Williams (1984) 6 Cr. App. R (S) 298

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown : Mrs Moala
Counsel for the accused : Mr Tu'utafaiva

Sentence

[1] Sione Talia'uli : You have pleaded guilty to a single count of manslaughter, contrary to section 93 of the Criminal Offences Act (Cap 18).

[2] The detailed facts of this case have been read out by the prosecutor and agreed by you. Briefly, during the evenings of 4 and 6 September you inflicted such severe punishment on your son Today Katoa Talia'uli, aged 4, that he died on 7 September.

[3] It is accepted by your counsel that in these circumstances the maximum penalty for which you are liable is 25 years imprisonment.

[4] In considering the appropriate sentence to impose I take the following matters into consideration.

[5] You are a married man aged 31. You have two other children, one aged 7 and one, the twin sister of you son, now aged 5. You have a good working record being a self employed mechanic.

[6] You have no previous convictions. You cooperated with the police and admitted the facts alleged against you. You have expressed contrition for what you did.

[7] On this occasion you have pleaded guilty to manslaughter, a plea which is accepted by the prosecution. Although the evidence against you is overwhelming I give you credit for your plea.

[8] The aggravating factors are that instead of discharging the God-given duty to bring up and protect your son you beat him so brutally that he lost his life. As a result of what you did your wife and surviving children have been left in penury and dependent on support from friends and relatives.

[9] Your lawyer recognises that you must inevitably go to prison for a long time. He helpfully referred me to the recent case of Siaosi Kofutu'a (AC 33/09) in which the Court of Appeal considered the effects of premeditation and provocation in manslaughter cases. The Court referred to DPP v Newbury [1976] UKHL 3; [1976] 2 All ER 365 in which the widely varying circumstances of manslaughter was discussed.

[10] Mr. Tu'utafaiva also referred to Mo'unga v R [1998] Tonga LR 154 in which the matters which could be taken into account in deciding whether to suspend or partially suspend a sentence of imprisonment were explained. It was urged upon me that although you had committed a terrible crime the consequences of which you would have to live with for the rest of your life, there was still a hope for eventual redemption and reconciliation with your family.

[11] Unfortunately, Mrs. Moala was unable to assist me with authorities but I have also considered R v Witika [1993] 2 NZRL 424 and R v Prue [1974] 2 NZRL 392. Both these cases are concerned with the manslaughter of children. Prue is not wholly dissimilar to the present case however Witika deals with a quite different pattern of offending.

[12] I have also found assistance in two English authorities namely West (1989) 11 Cr. App. R (S) 33 and Williams (1984) 6 Cr. App. R (S) 298, which is a case similar to this one.

[13] In Ditford (NSW CCA 17 March 1992) Chief Justice at Common Law Hunt spoke of the need for real deterrence in crimes against young children and of the community's demand for severe punishment. I am mindful of these considerations but also take the view that you are unlikely to reoffend and that there will eventually be a place in society for you to lead a worthwhile life.

[14] Taking all factors into account I impose a sentence of 15 years imprisonment. I order that the last six years be suspended for three years on condition that you be of good behaviour and that you attend a Salvation Army rehabilitation course upon your release.