Rex v Mafi [2014] TOSC 13; CR 32 of 2013 (11 June 2014)

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

CR 32 of 2013

R E X

V

PATELESIO MAFI

BEFORE THE HON. JUSTICE CATO

Mr Lutui for the Crown
Mr Niu SC for Mr. Mafi

SENTENCE

[1] The prisoner was convicted after a trial before a jury of causing grievous bodily harm to Richard Mafi on the 15th February 2011. Sentence was adjourned for a probation report to be obtained, on the 28th March 2014. The prisoner was remanded in custody because a sentence of imprisonment was likely under the provisions of section 4 A of the Bail Act. On the 23 April, 2004, the Court received information from the probation office that the accused had been admitted to hospital on the 16th April, 2004 for medical treatment and had been ordered to remain in hospital for supervision and treatment. As a consequence of this, sentencing was adjourned.

[2] The fact briefly was that Mr. Mafi visited the premises of the family bakery where the complainant Richard Mafi was the manager on the 15th February 2011. The prisoner was annoyed that this weekly stipend he had enjoyed for some time as a shareholder in the family business had been reduced. Further the learned that two pies his son had consumed on credit had be deducted from his stipend. It seems that the question of his consequence of a short argument with Richard Mafi, he returned to where Richard Mafi was, threatened him and proceeded to hit him around the shoulder and on the head with the machete. There were eyewitnesses to the event that supported Richard Mafi's account. He lost a considerable amount of blood and was rushed to hospital. He received appropriate treatment and after a few days in hospital, seems to have recovered. The prisoner claimed that Richard had threatened him and he had procured the machete out of fear. He had only waved Richard away and he did not wilfully intend any injury to him. The jury did not accept his explanation.

[3] Mr Niu SC, who was not his trial counsel, subsequently appeared before me and asked of bail on medical grounds, and in what I regarded, as exceptional circumstances, I granted this. My understanding was that he would be able to be cared for at home by his wife although, at the time, he was still in hospital. It appears from correspondence received form his current specialist physician, Dr Sione Latu, a highly regarded doctor that he is still under hospital care although living at home with his wife. He was described by Doctor Latu as having fragile physical health. Mr Mafi is aged 66 and has a history of hypertension with left ventricular hypertrophy, has moderate severe RCA territory ischemia, and this has been compounded by gout, obesity, stage 2 diabetes. He has suffered from alcoholism and is an ex-smoker. He had a previous acute left ventricular failure in April, 2014. He is on several medications which all require daily consumption, and some monitoring.

[4] As a consequence of receiving this report from Doctor Latu, and submissions from Mr Niu concerning his medical prognosis and the difficulties and dangers of imprisonment for him, I further adjourned sentence on the 21st May 2014 to 5th June 2004, to enable Dr Latu and the Commissioner of Prisons to appear before me. I wanted to hear from both first hand. I was concerned that facilities did not exist to properly provide essential medical facilities for him in prison in the light of Doctor Latu's report provided to me on the 21st that he was "a high risk for potentially fatal future cardiac events such as a heart attack." I was also informed that he had an attack of angina in the short time he was in prison on remand for sentence, because of his inability to access medication and this had lead to his hospitalization. It had become obvious to me comparing his appearance at trial and at sentence that Mr Mafi did not look to be very good health.

[5] When I came to hear sentencing submissions on the 21st and indeed again on the 5th June, 2014, the thrust of Mr Niu's submission was that because of his old age and his medical condition, which I shall mention again shortly, his sentence should be severely mitigated and indeed any sentence of imprisonment should be suspended. He submitted that his medical condition was so poor that it would be life threating to place him in prison. He further added that, in Tonga, prison conditions were such that he would have difficulty accessing medication and indeed appropriate care. I had also before me a number of references from people who had known him well and who spoke highly of him. Amongst those are people and relatives who live both here and in NSW where he has family connections. He also has a very good reference from the Ma'ufanga town officer and the Administrator of the Cathedral of the Immaculate Conception. He is described as a strongly committed churchgoer who over the years in his family business and in other activities has a made a very solid contribution to his community. I sentence him on the basis that he is man, who for most his life has been of good character, and indeed has aside from this no previous convictions.

[6] Mr Niu furnished me with a number of largely New Zealand authorities concerning the approach courts can take in relation to sentencing older prisoners and those who are unwell, or infirm. For these reasons and so I could get a better understanding from Mr Mafi's doctor of his medical condition, I adjourned the hearing to the 5th June, 2014, to enable Dr Latu and the Prison Commissioner to be present. I also requested the Crown to provide me with a report in the nature of a victim impact report because the probation report had indicated that, when first tendered, Mr Mafi's apology had not been accepted by the family. I was also advised that his wife, who had been living in Australia, had returned to Tonga and was living with him and would take on full time responsibility for caring for him.

[7] I accept that old age and ill health can be mitigating factors for a court to consider. However in the case of age, most of the cases where that has had any significant mitigating effect have been cases where he offenders have been a good deal older for the most part than Mr Mafi. He is aged only 66. I do not regard him for these purposes as a prisoner of advanced years, but, having heard from Dr Latu personally, I do accept there is very substantial risk that stress and prison conditions without specialized care could result in a potentially fatal future cardiac event. I also accept there are no or insufficient medical facilities available here in prison to give Mr Mafi the intensive care and management he requires now for his complex medical condition.

[8] Dr Latu emphasized he could not be allowed to participate in any form of work. He required special supervision for his medication. In the case of a cardiac arrest, only a matter of a very few minutes would lie between resuscitation and death. There was no fibrillator at Hu'atolitoli prison although, he added, that most modern prisons today overseas would have one to assist in the case of a heart arrest. There is one at the hospital and Mr Mafi's residence is in reasonably close access to that. I was left in no doubt having heard Dr Latu and indeed, read his report and correspondence and other medical evidence provided to me that, if sent to anything but a modern prison with a high level of medical care his life would be placed at serious risk. I am satisfied these facilities are not available in Tonga.

[9] Commissioner Sione Falemanu also attended court to answer questions, I had. I am grateful to he and Dr Latu for doing so. I was considerably assisted by their presence. Although the prison is visited by a medical officer on a weekly basis this person is not medically qualified. I am concerned both with Mr Mafi getting the appropriate medication and it being provided with the regularity he requires. Already, a problem with medication I was advised may have led to his having an acute episode of angina and his hospitalization. Whilst the prison may, within its resources provide adequate medical care for most prisoners, I do consider that Mr. Mafi would be at placed at very serious risk should he be sentenced to an actual term of imprisonment within the existing prison regime.

[10] In the period after the adjournment of sentencing of the 21st May, 2014 I considered authorities Mr Niu had provided me with and was assisted also by my own research in locating R v Bernard [2010] EWCA Crim 2327; (1997) 1 Cr App R 135 (S) which I made available for counsel when the sentencing resumed.

[11] There, the appellant was aged 63 and had been convicted of a cannabis importing offence. He had been sentenced to five years imprisonment. He suffered from a narrowing of the oesophagus which caused difficulty in swallowing, diabetes and hypertension. These conditions were aggravated by difficulties associated with imprisonment, and the appellant was at risk of a heart attack or stroke. The Court of Criminal Appeal noted after reviewing the authorities on ill health, three principles.

1. A medical condition which might at some unspecified future date affect either life expectancy or the prison authorities' ability to treat the prisoner satisfactorily was not a reason for the Court of Appeal to interfere with an otherwise appropriate sentence, although it might be a matter for the Home Secretary to consider in relation to his powers of release.
   
2. The fact that an offender was HIV positive or otherwise had a reduced life expectancy was not generally a reason to affect a sentence which would otherwise be appropriate.
   
3. An offender's serious medical condition might enable a court as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle to impose a lesser sentence than would otherwise be appropriate.
   

[12] In that case, the sentencing Judge had indicated that he had taken a starting point of six years and had reduced that by one year in view of the appellant's medical condition. The Court of Criminal Appeal considered the sentencing starting point too high, and taking into account the appellant's age and his medical condition, as an act of mercy reduced his sentence to three and half years.

[13] If I were satisfied that adequate medical facilities were available in Tonga to accommodate and mitigate the serious risk that imprisonment for Mr Mafi presents, I would have adopted the approach in Barnard, and Mr Mafi might well have been sentenced to a term of actual imprisonment. However, I am not so satisfied. I consider that local circumstances prevent me from following that approach which suggests that in principle release in circumstances of acute ill health should be an executive decision. If I seriously considered that Mr Mafi posed a serious continuing risk to the public then I would have been less likely to adopt the approach I have taken. I do not think this is so.

[14] This incident occurred in February, 2011, now well over three years ago. I do not know why it has taken so long 2013, but he has not reoffended. Testimonials placed before me suggest what occurred was exceptional and very out of character for Mr Mafi. It is plain to me that what did occur was that the problems concerning the declining fortunes of the family business and a decreasing weekly stipend paid to Mr Mafi had caused a serious rift between he and other members of the Mafi family. There may have been other difficulties also. I formed the view that when he learned the price of pies consumed by son on credit had been deducted from his stipend this led to his temporarily losing reason and taking his anger out on Richard Mafi, his nephew, who was the manager of the business. He is very lucky that he is not facing sentencing on a much more serious charge. Fortunately, Richard Mafi received very appropriate and timely medical treatment for his head wound and a disrupted artery at the hospital, and I have heard no evidence that he is suffering from any ill effects, at all.

[15] I am strengthened also by the fact that, although the Crown did not provide me with the victim impact report I had requested, Mr Niu had obtained from Mr Richard Mafi a short signed reference to say that what had arisen was family business, that the accused who was his uncle had apologized, and he had now accepted that apology (that was not the position when the probation report was tendered to me in April, 2014 and why I had asked for the family position to be clarified). Importantly, he said he did not want his uncle to be imprisoned. I accept the gracious acceptance of the apology and respect his views, which perhaps in Tonga may weight more heavily with a sentencing court in a close community as here, that elsewhere. That additionally is a significant factor for me dictating the sentence I now intend to impose.

[16] The starting point is six and half year's imprisonment. Had there been any serious permanent injury, the starting point would have been higher. The use of a machete which is a potentially lethal weapon as an instrument of violence must be denounced. However, I allow for his many years of good character, his long service in Tonga to his church and community in business, and indeed his family aside from this incident, (his own as a father of several children and his wider family who have also provided references for him) two years mitigation. In addition to this within the Barnard permissive of judicial mercy, I allow him a further 18 months on account of his age and acute had health. I backdate this sentence of imprisonment of three years to the date he was remanded in custody. I emphasise that the course of action I have taken is exceptional. It is the acute risk of a serious heart attack and the absence of adequate medical supervision and facilities to deal with this risk that persuades me to allow him the 18 month reduction.

[17] Further, I consider in the exceptional circumstances of this case that the sentence I have imposed should be fully suspended. He is a first offender and a man unlikely to commit any further crimes. I take into account also his acute ill health, and the fact he will receive appropriate supervision and care in his own home closer to the hospital, and his apology. I do so, however, on the following conditions;

1. He is placed on probation for two years.
   
2. During the period of his probation, he is directed to reside at his home with his wife or other caregiver suitable to his probation officer, and he is only permitted to leave his home to visit his doctor, to attend church and to do his shopping for the period of his probation, and to attend hospital if and when required. He can visit friends or family but only where accompanied by his wife and or caregiver.
   
3. He is only to attend any place of business of the Mafi family when requested to do so by Richard Mafi, and then in the company of his wife and or caregiver as approved by his probation officer.
   
4. He is not visit hotels or consumes alcohol during the period of his probation.
   
5. He is to undergo courses on alcohol and drug addiction, and anger management under the direction of the Salvation Army, and Probation office.
   
6. He is not to commit offence punishable by imprisonment for the period of suspension.
   
7. He is to pay forthwith into Court the sum of $1000.00 as compensation to Mr Richard Mafi. On receipt the money is to be paid to Mr Richard Mafi as soon as possible.
   

[18] It is hoped that the restrictions on alcohol will improve the condition of his health during this period and the courses assist him further with his rehabilitation, in the period of probation.

DATED: 11 JUNE 2014
J U D G E