Rex v Taipaleti [2013] TOSC 27; CR 104 of 2013 (12 November 2013)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CR 104 of 2013

REX

v

VILIAMI TAIPALETI

BEFORE THE HON. JUSTICE CATO

SENTENCE

[1] The prisoner, Viliami Taipaleti, pleaded guilty at the earliest opportunity to a count of actual bodily harm contrary to section 107(1) and 2(a) and 4(a) of the Criminal Offences Act, arising out of a gunshot wound he inflicted to the upper shoulder of his victim. He had earlier been charged with grievous bodily harm but the Crown reduced this charge to the offence of actual bodily harm to which the prisoner promptly pleaded. He also pleaded guilty to one count of possession of arms without a licence contrary to sections 4 (1) and 2(b) and 47 of the Arms and Ammunition Act; and one of possession of ammunition without a licence under the same provisions of the Arms and Ammunition Act.

[2] The facts were that on the 23rd May 2013 at approximately 5pm, the victim, his wife and others were cleaning and unshelling peanuts. The incident occurred in the village of Fo'ui. The prisoner and one other pulled up to the victim's market stall which was nearby. The prisoner had been drinking and appears to have been abusive to the victim and to others. The victim remonstrated with the accused. They were well known to one another. Both threatened the other and the victim punched the prisoner in the front teeth breaking his false teeth. The victim told the passenger turn the vehicle and leave or I will call the police. The car left and the couple travelled to Kolovai. The prisoner got his .22 rifle and returned to the village of Fo'ui. He told his passenger he was going to shoot pigs.

[3] He arrived at the victim's home and invited him to come out and fight. The victim, on being told by his wife, there was a gun, ran to the house. Before he could reach his house, the accused fired the gun and hit the victim on the back left shoulder. The victim reached his house before discharging two shots into the house. Later, the police arrived and the victim was taken to hospital. The wound was not severe which from both the victim and the prisoner's perspective was extremely fortunate.

[4] The paramount sentencing factor in this case must be deterrence and denunciation of the use of firearms in the community. The prisoner, as I have said, is indeed fortunate the consequences of his drunken behaviour was not far worse, and he is not facing far more serious charges than a charge of actual bodily harm carrying a maximum sentence of 5 years.

[5] Lord Tupou, who presented lengthy and very thorough and persuasive submissions for Mr Taipaleti emphasised that there was provocation here, as to I consider to a limited extent there was. The breaking of the false front teeth was some provocation, but the prisoner by his drunken and insulting earlier action provoked in the victim the response he received. He had been warned not to utter foul language in his family's presence and he was aggressive to the victim. I regard, however his actions in returning to Kolovai and arming himself and then driving back to the victim's residence as greatly reducing any possible provocation. Drunken revenge was the only explicable reason for the accused's conduct which caused injury to the victim and fear not only to him but his wife as well who was nearby. He discharged shots into the house and inside was a child. As I have said, the incident could so easily have ended in tragedy, as is so often the case where loaded firearms are presented and discharged.

[6] I consider that the starting point is one of 4 years imprisonment. The presentation of firearms and the discharge of them must be condemned as a deterrent for those who are disposed to settle arguments or scores in the Tongan community. I do so.

[7] I acknowledge the prisoners' early guilty plea and, although he has one previous conviction, I place no weight upon this. He is aged 33 with a wife and three young children. He is contrite for his actions and has made up with the victim who is supportive of him, and has filed a statement indicating he does not want him to go to prison. Mr Taipaleti has provided gifts including money and food for the family and the victim says, "I state that I have completely forgiven this person because he is a brother and we have a family connection". He accepts that what he did was because he was drunk. For some time, Mr Taipaleti has it seems had a very serious alcohol problem which manifests itself largely on weekends and this is born out in the probation report, and in the circumstances of this case. Intoxication as Lord Tupou recognizes may explain his aberrant conduct but it cannot justify or excuse it in law. However, important in my view is his contrition and the fact he has not drunk since the incident. I pause to say his wife told the probation officer how concerned she was for his safety when he was drinking.

[8] He seems to have been a very hard worker and a number of references were filed on his behalf which attest to the fact that he is productive for the Tongan community in the cultivation and marketing of cassava and its export. A reference was included in his support from the acting Director of the Ministry of Commerce. As well, there were other references filed by Lord Tupou from his Minister, from the District Officer of Hihifo, the Town officer of Kolovai, and from one member of the Legislative Assembly, testifying to his good works in the community. As I said, I have little doubt that ordinarily he is a good hardworking member of the Tongan community, however with too much alcohol his character would seem to be changeable.

[9] For all the mitigating factors, I discount 18 months from the starting point of 4 years making a sentence of imprisonment for the offence of actual bodily harm of 2 years and six months imprisonment for which he has been convicted. Lord Tupou referred to my own earlier decision sentence of Kefu Tuila Cr 146 of 2011. There, the prisoner had pleaded guilty to one count of housebreaking in which he had entered a house whilst drunk and had kissed a sleeping woman. She woke up and confronted him and he ran out. He had told he was her husband. In the second incident, he had sought revenge for an earlier incident of provocation when he had been beaten up. He had obtained a bolt action rifle and shot the complainant in the arm. As in this case, there was no serious harm, and he pleaded guilty to an offence of actual bodily harm. The prisoner was aged 38 and had a serious list of convictions dating back to 1994 involving several house breakings, grievous bodily harm and other offences. Unlike the prisoner here, he was a recidivist and I reflected this in my sentence in which I imposed three years for the housebreaking offence with three years cumulative upon this for the actual bodily harm. Lord Tupou submitted considering the actual bodily harm offence discretely I should sentence the prisoner to a sentence of lower than the three years I imposed on Mr Tuila because the latter was a recidivist having a previous conviction for grievous bodily harm. I had some reservation about this because I had accumulated the sentence in Tuila and to my mind, there was very little defensible provocation in the present case for the reasons I have given. However, on reflection the mitigating factors I have mentioned in this case, in my view do justify a lower sentence. The sentence must still objectively, however, reflect the very serious nature and circumstances of this offending.

[10] I turn now to the question of suspension. I have no doubt that he is a man worthy of rehabilitation and he has moved in that direction; his early guilty plea, contrition, and his decision to abstain from alcohol are testament to this. I also bear in mind his family responsibilities. He has three young children and looks after aged parents who are dependent also upon him. His wife is dependent on him although she is in employment, as is his business which as I have said is of some wider importance for the Tongan community. Lord Tupou urged me to fully suspend the sentence, but Mr Sisifa, whilst acknowledging a partial suspension was in order, opposed the sentence being fully suspended. I consider I would be failing the wider Tongan community and sending the wrong message about the use of guns and would be devaluing the seriousness of this offending should, on this point, I accede to Lord Tupou's argument. There is a countervailing societal interest in this case which must mean the prisoner serve a meaningful period of partial imprisonment for his drunken and very dangerous actions, despite the victim's expressed view to the contrary. I consider, however, taking into account the view of the victim, the importance of the prisoner to his young family, his wife, for the care of his aged parents and for the wider community; and, taking into consideration also, the steps he has already taken towards his rehabilitation, I can partially suspend his sentence of 2 years and six months imprisonment by suspending the final 16 months on the following conditions;

a. He commit no further crimes punishable by imprisonment for a period of two years;

b. He is placed on probation for a period of 12 months.

c. During this period of 12 months he is to abstain from alcohol or drugs;

d. He is to further attend the following courses under the direction of probation, a course on drug and alcohol abuse under the Salvation Army and an Anger management course.

[11] He is warned that should he not abide by any of these conditions he is liable to be ordered to serve the balance of his term of imprisonment.

[12] On the two charges to which he pleaded under the Arms and Ammunition Act, and was convicted I sentence him to 6 months imprisonment on each to be served concurrently with the offence of causing bodily harm.

JUDGE

DATED: 12 NOVEMBER 2013