Rex v 'Ofa [2014] TOSC 12; CR121-123 of 2013 (16 May 2014)

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

CR 212, 122, 123 of 2013

R E X

V

1. FIFITA 'OFA
2. TOMASI 'OFA
3. MOALA TOUMOHUNI
   

BEFORE THE HON. JUSTICE CATO

Mr. Lutui for the Crown
Mr. Pifeleti for the first and second defendants
Mr. Pouono for the third defendant

SENTENCE

[1] The accused, Fifita 'Ofa and her brother Tomasi 'Ofa originally stood indicated for murder of Malia Kolo, a child aged 14. They pleaded guilty, however, on the 7th March 2014 to manslaughter and the Crown accepted this plea in discharge of the indictment for murder. They were represented by Mr Pifeleti who appeared for them on sentence, also. Moala Toumohuni pleaded guilty to one count of abetment to cause bodily harm under sections 8(a) and 107(1) & (2)(a) of the Criminal Offences Act. The charge originally proffered against her was reduced from one of abetting grievous bodily harm. She was represented by Mr T Fifita and pleaded guilty to the lesser charge, of abetment to actual bodily harm on the 14th March, 2014. The sentencing was delayed because of the ill health of counsel. Mr Pifeleti appeared to advance submissions at a hearing held on the 2nd May, 2014, and Mr Pouono appeared for Moala Toumohuni, also as a consequence of the continuing ill health of Mr Fifita. After adjourning the matter for consideration, I pass sentence today. All accused have been remanded in custody for sentence and all accused will have their sentences backdated to the date on which they were remanded in custody.

[2] All accused signed a common summary of facts. The circumstances of the offending are as sad and tragic as they are concerning. The victim, Malia Kolo, was Fifita 'Ofa's daughter. Tomasi 'Ofa was Fifita's brother. Moala Toumohuni was the de facto partner of Malia's father. The victim's parents separated when she was a young child and Malia together with her twin spent much of her childhood being raised by her father and Moala. It was only in mid-2013 that Malia returned to live with her mother and her partner of Malia's father. The victim's parents separated when she was a young child and Malia together with her twin spent much of her childhood being raised by her father and Moala. It was only in mid-2013 that Malia returned to live with her mother and her partner in Kolonga.

[3] Malia ran away from home. Fifita on the 7th August 2013 called the victim's father and enquired if the victim had come by because she had run away from home. She asked the victim's father to have her returned to Kolonga if she could be found.

[4] On the morning of the 10th August, 2013, the victim's step brother and his wife met the victim at a flea market. They took her home to 'Umusi where her mother lived.

[5] Moala called Fifita to say that Malia had been located. Fifita telephoned Tomasi and informed her that the child had been found. Tomasi told her to bring Malia to Veitongo where he lived.

[6] Fifita 'Ofa arrived back in Kolonga accompanied by others. Fifita went into the house and started confronting the victim. Her twin procured a large stick approximately 2 feet long. She gave this to Fifita. Over the next two hours, Fifita proceeded to beat her with the stick all over her body. She was also confronted about a theft that had occurred in the neighbourhood of Kolonga in the past few days. She questioned her about her whereabouts. This beating lasted about two hours. It was severe. Moala Toumohuni grabbed Malia when she tried to escape and returned her to her mother to be beaten again.

[7] Afterwards, she was taken to Tomasi's residence in Veitongo and left there by Fifita for Tomasi to continue disciplining her. He did so for about an hour using a piece of watering hose approximately 2 feet long, and a wooden hammer. It was only when her hand was badly injured by a blow from the hammer that he stopped hitting her.

[8] Her mother received her back at home on the evening of the 11th August, 2013. The child could not walk. She was left neglected in the living room without any medical care or attention. Her wounds turned sceptic. She wore diapers which were not regularly changed. She was observed to be in great pain and had difficulty breathing. She was left in this state from the 11th August to the 15th August 0213.

[9] The Court was informed by the Crown that it was only a neighbour's involvement that caused her to be admitted to hospital. She was immediately admitted to intensive care and her health deteriorated to the point where she died on the 16th August, 2013.

[10] I have read the pathologist's report which I requested be provided. It details numerous abrasions and bruising. There were further associated fractures in the bones of both forearms and the distal fibula of the right leg. A deep laceration was seen in the palmar aspect of the left index finger. Injuries on the hands were consistent with defensive injuries suggesting Malia had tried to ward off some of the blows. Some of the injuries were consistent with the use of a hammer or hammer head. Other abrasions were consistent with a hose pipe or a similar elongated weapon. At the time of admission, the report records she was in severe state of septic shock with clinical and laboratory results showing multiple organ failure. It was said death could have been prevented if the deceased had been brought in time to the hospital to have her wound debrided and receive further medical treatment. Cause of death was given I the report as septicaemic organ failure. It was said death could have been prevented if the deceased had been brought in time to the hospital to have her wound debrided and receive further medical treatment. Cause of death was given in the report as septicaemic organ failure secondary to multiple infected sharp and blunt injuries.

[11] The only case of any real relevance as a comparable in Tonga is R v Talia'uli [2010] Tonga LR 203. There, the accused on two evenings had inflicted such severe punishment on his son, aged 4, that he died shortly after. The accused pleaded guilty to a single count of manslaughter. He was married, aged 31, with two other children, 7 and one. The deceased had a twin sister. The prisoner was a self-employed mechanic, with a good working record. He had no previous convictions and had co-operated with the police.

[12] The Chief Justice, Scott CJ, emphasised the need for real deterrence in cases against young children and of the community's demand for severe punishment. The prisoner was sentenced to 15 years with a substantial period being suspended. I conclude from this that had the accused not pleaded guilty the starting point would have been in excess of 15 years.

[13] Of relevance also in this regard is an English case, R v Wright [2003] 1 Cr App R (S) 257 which also illustrates how severe sentences can be expected in cases involving violence, cruelty, neglect and the of children. The defendant had been convicted of manslaughter and cruelty to children. The child concerned at the time of her death was about 7. She was the daughter of the defendant's partner. She had been kicked several days before she was found dead. The defendant was 31 and said to have limited abilities. The sentencing judge had imposed cumulative sentences of 10 and 5 years for manslaughter and cruelty. On appeal, it was said the sentencing range was between 12 and 15. The Court imposed a total sentence of 12 years. The cruelty charge remained, but was made concurrent with the 12 years for manslaughter.

[14] In this case, Fifita 'Ofa has previous convictions for assaults on two of her children in 2009 involving the use of knives. In those instances, she had been concerned that her partner visiting New Zealand had left her for another woman. She had used the knife to cause injury as some kind of warning to him of what she could do if he became involved with another woman. As a consequence, it seems he returned to Tonga. She had been sentenced to 12 months imprisonment by a magistrate, and had appealed against the failure to suspend her sentence. On appeal, the Court indicated some concern at the 12 months sentence and, indeed, the fact that the magistrate had assumed jurisdiction to sentence, and dismissed the appeal against the failure to suspend the sentence.

[15] I have read the probation reports. Fifita 'Ofa is aged 35. She is living in a de facto relationship. She has had 10 children. She is reported as saying that in her upbringing violence was the usual way of parental discipline. Malia was the youngest of 4 children she had with Mr Kolo. She had separated in 2000 as a consequence of her husband becoming involved in a relationship with Moala Toumohuni.

[16] She had her second partner had 6 children. This was a family that seems to have been involved in domestic violence and her husband is in prison for assaulting her in 2014.

[17] Fifita had little education. Her partner worked as a fisherman. It seems that Malia and her twin sister were brought back into the care of Fifita because they would not obey their father. Fifita admitted in the probation report that she had become very angry when she questioned her daughter about stealing property from a neighbour and had thought she was telling lies. She admitted beating her all over her body and stopping only when she got tired. She told her probation officer she was aware that Malia would be subjected to further discipline by her brother.

[18] She said when she picked Malia up she was surprised she could not walk. She said she was too afraid to seek medical assistance because of her involvement. She expressed remorse for her behaviour and asked for leniency. Her children, I am advised, have been taken into care of other relatives. I intend to make a recommendation later in this judgment about them.

[19] I have read the report also on her brother Tomasi. He is aged 38 and has no previous convictions. He is still single. He has a child, however, by a previous relationship. He derives an income from plantation work and diving. His mother supports him saying he was polite person and she asks for leniency. His excuse for participation was to help his niece, in the Tongan customary way, to mend her ways.

[20] He said he never knew she was badly assaulted by the mother first, and he explained that during the assault, he would give her advice and that continued for about an hour. It would seem he also knew that the deceased required medical treatment because she could not walk when her mother came to pick her up, but he did not seek medical assistance, either. He seems to accept responsibility for his actions and, like his sister, is remorseful.

[21] Moala Toumohuni is aged 43. She reports a good home environment. She said that she had been living with the deceased's father since the deceased was three. They had four children including Malia living with them. She said there were problems with the twins running away from home. They were becoming involved in criminal activity, she suspected. She admitted also, in the probation report, physically disciplining the deceased.

[22] She had little formal education. She did weaving to generate income. She was a first offender. She admitted to her probation officer the beating by Fifita was "huge and too heavy". She admitted pushing the deceased back to Fifita for the beating to continue when she tried to run away. She also expressed remorse. She spoke of reconciliation between her and her partner and partner's immediate family. She said apology had be made and accepted.

[23] Mr Pifeleti, for his clients, pointed to their violent upbringing which he said contributed to this offending. He said both had pleaded guilty on his advice and had co-operated with police and I accept that. He also advanced Tongan customary discipline. He asked for leniency for them. Mr Pouono submitted that his client was much less involved and I agree, although her conduct in being a spectator to the beating and in returning the child to her for the beating to continue was reprehensible.

[24] Mr Lutui for the Crown submitted that in the case of Fifita her offending merited a lengthy sentence of imprisonment and that because of her previous offending against children it should not be suspended. He referred to R v Talia'uli. He suggested a starting point of 12 years and the end sentence should be one between 12 and 14 years taking into account mitigating and aggravating features. I have adopted a slightly different approach in this case, but the result is similar.

[25] This case involved the repeated beating of a child for about two hours by Fifita with a stick that broke in two that broke in two. It was extremely cruel punishment, as was the beating she received from Tomasi for a further hour with weapons. Further, the prisoner left her child with Tomasi knowing she would receive more punishment. Given she had used a stick; she must have foreseen her brother would also likely to use a stick or similar object. She did not, it seems, inquire about her daughter for a long period of time after leaving her with daughter's obvious serious medical condition after she had received her back into her care. It must have been a terrifying and very painful ordeal for the child. Malea could have survived had the mother not considered her own position ahead of her daughter's. The starting point, I adopt applying R v Talia'uli is 15 years. I have taken also into account that this was not Fifita's encounter with child abuse. She seems to have acted in total disregard of the warning she received in 2009 that physical abuse of children was and is entirely unacceptable.

[26] The paramount sentencing consideration is to protect children and young persons from violence, and their consequences. Not only for these reasons are severe sentences inevitable in cases of this kind, but there is a need to deter others as well as a need to denounce such conduct. I add also that there may be a common misconception that beatings associated with the discipline of children constitute an acceptable approach in Tonga life. Mr Lutui, however, rightly in my view, points out that it is an unacceptable approach and violence of this kind, in any event, he submitted, was never part of Tongan culture. Legislation on domestic violence and abuse is reflective, he submitted also, of a changing attitude to violence, in the family setting.

FIFITA 'OFA

[27] I accept Fifita may now be remorseful, and that she has assisted me to infer this by her early guilty plea to manslaughter. I accept also that her inability to deal with her daughter in a less severe manner may have been a consequence of the violence she had been privy to as a child. The literature on child abuse seems to support this, and it is all too often sadly advanced as an explanation for violent offending. But, if so it can never be regarded as an excuse. I allow her two years, for her early guilty plea, expression of remorse, and co-operation with police. The sentence I impose upon her is one of 13 years imprisonment backdated the period of her remand in custody. I consider the cruelty of her punishment and the wanton disregard of her daughter's health causing her death as placing this case in the higher level of sentencing for this kind of offending.

[28] Mr Lutui, as I have said, submitted that I should not allow any part of that sentence be suspended. However, I disagree. First, she has pleaded guilty and co-operated with the authorities. Mo'unga [2001] Tonga LR 1 would suggest that this is a factor that would justify a sentence being at least in part being suspended. I also consider, in her case, there are advantages in suspending part of the sentence because it gives the Court the opportunity of imposing conditions aimed at ensuring she receives some supervision, assistance and education on release so that any children with whom she comes into contact, and possibly her own, are protected. In my view, however, she should not be permitted custodial care of children. I suspend the final two years of her sentence for three years on condition that she commit no further crimes punishable by imprisonment for the period of her suspension, and on the following additional conditions;

1. That she placed on probation for a two year period;
   
2. She is to reside where directed by her probation officer;
   
3. She is not to have any unsupervised care of children during her period of probation;
   
4. She is to take up on direction of the probation officer an appropriate course on anger management and child abuse.
   

TOMASI 'OFA

[29] I accept he is also contrite and has pleaded guilty at the first opportunity and also has co-operated with authority. He plainly had become involved only at the request of his sister and probably did not know of the extent of the earlier beating. However, being her uncle and, like the mother in a position akin to trust, he beat her with weapons most cruelly; a hammer and a hose, and these injuries contributed materially to her death. Who caused the fractures is unknown; but he left her for some time before contacting the mother, and then she could not walk when she arrived home. He must have known she was in a very bad way when she left his home, but he did not seek medical assistance, either, nor did he seem to make inquiry later. For this child, already having been the victim of gross abuse by her mother, to have received a further beating with weapons from her uncle would have been quite simply terrifying. The starting point I impose for the offence of manslaughter in his case is 12 years imprisonment. I have taken into account he is a first offender, has pleaded guilty early, showed contrition and co-operated with authority; also that he probably did not know of the extent of the earlier beating. The sentence I impose for manslaughter in his case is 9 years imprisonment backdated to the period he was remanded in custody for sentence. In his case, I also suspend the final two years of the sentence for the period of suspension, he being a first offender on the following conditions;

1. He is not to commit any offence punishable by a period of imprisonment during the period of suspension.
   
2. On his release for the first 12 months he is under the direction of the probation office and is directed to undergo a suitable course on anger management and child abuse as directed by probation.
   

MOALA TOUMOHUNI

[30] She is in a different position. Unlike the 'Ofa's, she pleaded guilty not to manslaughter which carries a maximum sentence of 25 years, but to abetment to causing bodily harm, the maximum sentence being 5 years. Mr Lutui, in her case, submitted a starting point of 12 months imprisonment and also submitted that it would be appropriate to suspend a substantial part of her imprisonment.

[31] I accept that, although he role was much less than the 'Ofa's, she nevertheless was heavily complicit in the offending of Fifita 'Ofa. She with her partner, Malea's father, had the care of Malea for about 10 years. She was in effect very much a step mother. She took no steps to persuade Fifita to stop the beating; rather she was present and intervened at one point to stop Malea running away, returning her to her mother for the punishment to continue. She not only condoned the cruelty but actively supported it. The starting point I would impose for a person, who participated in this sort of severe beating of a child with a weapon as a confederate where only bodily harm was involved would be three years and three months imprisonment. In her case, she also pleaded guilty, has no previous convictions and expresses remorse and has several children. Also apologies have been given and received with her husband's family. I sentence her to two years imprisonment backdated to the time she was remanded in custody.

[32] I however suspend the final 12 months imprisonment on the following conditions;

1. She commit no further offences punishable by imprisonment for a period of two years;
   
2. She is placed on probation for this period and directed to attend a course on anger management and child abuse as directed by the Probation Office.
   

[33] Finally, I recommend that the Solicitor – General take all available steps to ensure that the children that were formerly living with Fifita 'Ofa are in appropriate care, and receive whatever counselling is required for their welfare.

[34] I strongly recommend that Fifita not be permitted unsupervised care of any children in the future.

DATED: 16 MAY 2014
J U D G E