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Supreme Court of Tonga |
IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY
R E X
V
BEFORE THE HON. JUSTICE CATO
Ms Puloka for the Crown
Ms Koia for Mr Kaufusi
Mr Talivakaola and Mr Langi unrepresented
SENTENCE
[1] The three prisoners charges to which they pleaded guilty arose out of an incident in the township of Havelu adjacent to the hospital in the early hours of the 7th July 2012, as a consequence of which the death of Tevita Fifita was caused. He died as a consequence of a beating he received in which in various ways all three men participated during the course of two closely related incidents that evening.
[2] Mr Kaufusi pleaded guilty to manslaughter which carries a maximum sentence of 25 years. Mr Talivakaola pleaded guilty to assault occasioning actual bodily harm which carries a maximum sentence of 5 years, and Mr Langi to causing grievous bodily harm which carries a maximum sentence of 10 years. Although indictments were presented against all three initially for murder in November 2012, the Crown accepted their pleas in discharge of the indictment before trial which was to take place, in June 2013. Consequently, they appear for sentencing today on those charges.
[3] The facts which were agreed to by the prisoners can be shortly stated. On the evening of the 7th July, 2012, at approximately 2.am the deceased Tevita Fifita, aged 34 was walking along Niumeitolu Road at Haveluloto where he met the three accused. The deceased was intoxicated after a night drinking Kava with friends. The accused had also been drinking.
Without any provocation, Mr Kaufusi punched Mr Fifita to the ground before stomping on his stomach. Mr Talivakaola then also attacked him and the two began kicking and punching him on the face and other parts of his body.
After this beating, Mr Kaufusi and Mr Talivakaola left him lying probably unconscious on the ground. Mr Talivakaola walked home with a friend whilst Mr Kaufusi walked a short distance and met up with a group of people he knew which included Mr Langi.
Mr Kaufusi told them that he had beaten up the deceased. The men returned to the area where the deceased lay unconscious. This time, Mr Kaufusi and Mr Langi began beating Mr Fifita up again punching and kicking. At one point, Mr Kaufusi prepared to throw a rock at him but one of the other men stopped him from doing so.
The men abandoned Mr Fifita who was still unconscious, and left the scene of the crime. Mr Fifita was shortly after taken to hospital arriving at about 3.37 am where he died. He was unconscious. There was a hematoma on his forehead and multiple abrasions on his body. He died about 8.20.
[4] The pathologist's report noted very extensive bruising particularly around the head and upper body. There were marked bruises and hematoma in the skin and soft tissue of both parietal areas of the brain seen after the head was opened. There was extensive bleeding in the subdural area over the left parietal area of the brain, compressing underlying brain to more than 3 cm at its centre. There was generalized brain swelling, blood clots and compression of structures at brain stem. There were no fractures of the skull.
The pathologist said that injuries would be consistent with being repeatedly hit to the head at least four times, with a hard blunt object. There was significant bleeding in the brain causing compression on the brain, displacement of the brain stem against the base of the skull, and this caused pressure on the respiratory and cardiac centres resulting in the sudden fatality, in the hospital.
The pathologist reported that "intercrania bleedings of this nature are usually seen in a scenario where there is repeated violent shaking of the head caused by repeatedly hitting it with a blunt object."
[5] The deceased was a single man living in a de facto relationship aged 34. His partner was expecting his child. Evidence was given that he had worn gold rings. These appear to have been removed after the assault although the Crown did not press for convictions of robbery, and nothing has been made of this by the Crown on sentence.
[6] I find on the evidence I have read and the summary of facts that this was a concerted and unprovoked attack on a drunken and defenceless man who appears to have been unable to show resistance. It was brutal in the extreme and cowardly. The deceased was rendered unconscious and then latter again viciously attacked by Mr Kaufusi and Mr Langi and left unconscious. The beating involved punching and kicking to the head and upper body, with such significant force that lead to severe bleeding in the brain and brain damage. I remind myself of the statement by the English Court of Criminal Appeal in R v Reece, [2009] EWCA Crim 2125; (2005) 1 Cr App R(S) 99 that a kick with the shod foot is just as serious as the use of a weapon.
[7] I consider that Mr Kaufusi was the leader and was involved in both assaults. He, at the time of the offending, was aged 20 and had no previous convictions. The probation reported indicated he was from a large family, had an inauspicious record at school, was something of a loner although he enjoyed Rugby. He was living at home at the time of the incident and was unemployed. References were tendered for Mr Kaufusi which suggested he was ordinarily a good young man.
[8] Mr Talivakaola was about the same age, also had an inauspicious schooling and left school at a young age but through his father he appeared to secure employment. He left the scene after the first beating which rendered the deceased unconscious. His plea indicates that the Crown view his actions as less culpable than the other two, and I agree, but I consider his conduct notwithstanding very serious, and in the upper end of the crime of assault occasioning actual bodily harm. He had no previous convictions.
[9] Mr Langi aged only 19 also seems to have a poor educational attainment. He did not succeed in his fifth form examination and he was not in employment. Like the others he has no previous convictions.
[10] All seemed to have developed in their teenage years some fondness for alcohol, and parents noted a change in them. However, parents reported to the probation office that they could not believe their sons had been involved in activities of this kind. To that extent at least, they considered their actions unexpected.
[11] Although each man indicated contrition and apologies were tendered to the family of the deceased, which I accept are probably genuine, the fact remains that all to various degrees were involved in attacking and beating up a defenceless man minding his own business and walking in a suburban street, in a highly inebriated state. This was not a case of a fight and a lone punch delivered which caused death. This was a case of a sustained beating – gratuitous violence of a very serious, and in persons so young of a disturbing kind.
[12] A court must fix a sentence which reflects the criminality leading to the death of Mr Fifita, his serious injury or actual bodily harm as the case may be, in the context of each individual prisoner's acts of gratuitous violence. It being unprovoked, I infer that despite their apparent regret at their actions; at the time, these young men must have got some real sense of drunken satisfaction in these attacks. That is a particularly disturbing facet of their behavior. It was cowardly, probably motivated or fuelled by alcohol, but that is of no excuse and certainly cannot be justified, in any way, as mitigating their actions or lessening their culpability. This Court must fix a sentence that deters others from committing such offences on people freely walking the streets of Tonga, is protective of citizens, and denounces or is condemnatory of their behaviour.
[13] In the case of Mr Kaufusi it must also reflect the fact that being the instigator of both attacks and the leader in this thuggish activity, his actions led to a man's death. Although not initially accepted by the Crown, the Crown later accepted his plea in discharge of both murder and robbery. There seem to be few sentencing precedents for violence of this kind in Tonga.
[14] The Crown referred me to a sentence passed by Schuster J in Rex v Filimone and others [2010] TOSC CR 59, 60 and 61- 2010. Unreported. That case had some similarity to this. Three accused had been at a drinking party and were later joined by the deceased. A fight broke out and the deceased assaulted the accused Filimone. The deceased left and so Filimone told the other two accused they should beat him up. One picked up a rock and followed the deceased and stuck him with the rock in the back and continued to hit him on the right side of the head. Filimone and one other punched and kicked him several times before Filimone dropped a rock on his head. He was taken to hospital and later died.
[15] Their early pleas to manslaughter when first arraigned had been accepted by the Crown in discharge of an indictment for murder. All were first offenders. Schuster J stressed that each defendant took some part in assaulting the victim whilst he was helpless on the ground by using weapons which he said was a rock and the use of feet. Schuster J said his starting point would be a sentence of 12-15 years on a not guilty basis. He fixed a starting point of 12 years which he reduced to 9 years for a guilty plea entered at the first available opportunity. His Honour then reduced that sentence effectively to six years imprisonment for each of the defendants. The factors which he took into account was it seems their youth, lack of previous convictions, and that an apology was offered and accepted by the deceased's family in the Tongan way. He declined to suspend any part of the sentence because he did not consider it appropriate to do so because of the prisoners' actions. I have chosen a somewhat different approach, although the effect at least in the case of Mr Kaufusi is similar in outcome.
[16] There is not, in my view, any clear range for manslaughter sentences involving group violence in Tonga. I agree with Schuster J, however, that group violence that leads to death requires a very firm starting point meaning here a point at which objectively a sentence is fixed before mitigating or subjective factors relevant to the offender are taken into account. In this case, Mr Kaufusi initiated the attack which involved punching and kicking where there was no provocation. He appeared to leave the deceased unconscious. Instead of, however, abandoning his attack he instigated another attack with Mr Langi, as his confederate that also involved kicking and punching. In my view, an appropriate starting point, that is before mitigating factors are considered, is one of 11 years. In my view, this was a very serious case of gratuitous group violence initiated by Mr Kaufusi, and it was protracted or sustained violence that ultimately led to death. There were a number of heavy blows delivered to the head, with sufficient force for the pathologist to conclude they were consistent with being hit repeatedly by a blunt object. It was callous and brutal conduct which as I have said must have given the prisoner a feeling of drunken satisfaction, at the time.
[17] Taking into account the following mitigating factors, his early guilty plea to manslaughter, his youth, the fact he was a first offender and his contrition and apology, I fix a sentence of eight years imprisonment. I add that I had adjourned the hearing after submissions from the Crown and accused because I wanted to reflect further on the sentences I should impose. Both Mrs Langi and Mrs Kioa for Mr Kaufusi accepted that a 9 year sentence would be appropriate in his case, but after further reflection I have decided that for a person of his age, and a first offender who has demonstrated some contrition, a sentence of eight years is an appropriate sentence that sufficiently meets the gravity of his actions.
[18] I accordingly impose on Mr Kaufusi on the manslaughter count a sentence of eight years imprisonment.
[19] I however suspend the final two years of his sentence on the following conditions;
[20] His sentence of imprisonment is to be backdated to the date he was first remanded in custody pending sentence.
[21] I record that in the light of his age, the fact he has had no previous convictions, and his contrition, I consider he is worthy of rehabilitation and to have some part of his sentence suspended. The conditions I have imposed are to better ensure that after release and during the period of probation there is assistance and supervision given to further his rehabilitation in the community. I consider, however, that suspending the sentence by a further year, which I have the power to do and was mooted at the sentencing hearing, would be too indulgent in the light of the gravity of his offending and the fact he displayed no mercy towards the deceased. I recommend that such courses as are available to offenders on drugs and alcohol abuse, and violence be made available to Mr Kaufusi early in prison.
Mr Talivakaola
[22] As for Mr Talivakaola, I consider his conduct in joining in the initial attack on Mr Fifita with Mr Kaufusi which involved punching and kicking and rendered him probably unconscious, then leaving him is worthy of a starting point of four and a half years imprisonment. This was plainly at the upper end of beatings appropriate to the crime of actual bodily harm which carries a five years sentence.
[23] From this, I would deduct for his age, guilty plea, contrition and lack of previous convictions, 18 months making a sentence of three years imprisonment.
[24] In his case, I would suspend the final year of his sentence for the same reasons as I have given in the case of Mr Kaufusi. I would also in his case add the following conditions;
[25] His sentence of imprisonment is to be backdated to the date he was first remanded in custody pending sentence.
[26] I also recommend he be given early access to such courses on violence and drug and alcohol abuse as are available early in his term of imprisonment.
Mr Langi
[27] As for Mr Langi, he pleaded guilty to causing grievous bodily harm. The maximum sentence is 10 years imprisonment. His role involved kicking and punching a man who was probably already unconscious. By his plea, he admitted to causing him serious harm. His behavior was callous as well as cowardly. I regard his act with Mr Kaufusi in the second incident of kicking and punching Mr Fifita who was unable to defend himself when he knew he has been the victim of a serious assault, was probably unconscious or virtually so and had no reason to become involved, as both serious and disturbing. He lent himself to the continuation of what can only be described as a cowardly and callous attack on a defenseless man. I would in his case fix a starting point at 7 years.
[28] However for his youth, his plea of guilty also his contrition, and lack of previous convictions, I would discount this by two years and fix a period of five years imprisonment.
[29] I also suspend the final year of his term of imprisonment on the following conditions;
[30] His sentence of imprisonment to be backdated to the date he was first remanded in custody pending sentence.
[31] I also recommend he be given access to such courses on violence and drug and alcohol abuse as are available early in his term of imprisonment.
Each of the accused is warned that should he commit any offence punishable by imprisonment during the period of his suspension or not adhere to the terms of his suspension, he may on application by the Crown be recalled to prison to serve out the suspended part of his sentence of imprisonment.
DATED: 1 AUGUST 2013
J U D G E
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URL: http://www.paclii.org/to/cases/TOSC/2013/13.html