Rex v Taufahema [2016] TOSC 4; CR03.2015 (26 January 2016)

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

CR 03 of 2015

BETWEEN:

R E X
- Prosecution

AND:

LOKOUA TAUFAHEMA
- Defendant

BEFORE THE HON. JUSTICE CATO

SENTENCE

[1] Mr Taufahema appears today for sentence on one charge of manslaughter contrary to sections 85, 86(1) (a) & (2), 92 and 93 of the Criminal Offences Act. He had pleaded guilty on arraignment to manslaughter on the 24th February 2015. He had on that date pleaded not guilty to murder and, after a trial lasting 6 days in which he represented himself and gave evidence, he was acquitted of murder by a Jury on the 23rd November 2015. The sentencing had been adjourned over the vacation to enable a probation report to be supplied to the Court.

[2] The basis of the Crown 's case on murder was that he, on the 26th December, 2014, had poured a pot of hot cooking oil that had been heated on the stove over his wife's face and upper body deliberately when she was lying on a couch nearby. The Crown case was that he had deliberately poured the oil on her intending to cause her bodily injury, and at the time he knew that the injury was likely to cause her death and carried on reckless whether death ensued or not. He denied in a record of interview taken after his arrest that he had intended to kill her, and at trial confirmed that he did not know that it was likely she would die. He gave evidence and said also, in his record of interview, that his reason for pouring the hot oil upon her was to scar her so she would not be attractive for other men. The probation report confirmed a discussion with him in which he advanced once again his motive.

[3] The trial had proceeded and evidence had been given to suggest that, for some time, the relationship between the deceased and the prisoner had been strained and unhappy. The accused had believed his wife was having an affair and matters came to a head on Christmas day 2014 when the deceased appeared as distant from him. The next day, the morning of the assault, the prisoner had planned to take his children to the beach and he had commenced to cook some chicken. He proceeded to boil fat for this purpose. About this time, the accused maintained in his evidence he had seen a text message from the deceased's alleged lover to her. He said he loved her and was jealous and wanted her scarred so as to keep her for himself. Provocation in any legal sense in Tonga can only operate as a defence to murder where the accused sees the deceased in the act of adultery with another. That was not the case here, and provocation was not advanced at trial.

[4] The jury plainly gave the prisoner the benefit of the doubt on the central issue at this trial for murder namely did the prisoner when he poured the pot of oil on the deceased, know that the deceased was likely to die? It is insufficient in Tonga that the accused knew that serious harm was likely to occur. The standard of foresight of likelihood of death is a high threshold for the Crown to meet under section 87(1)(b) of the Crown Offences Act in order to obtain a conviction for murder.

[5] For the purposes of this sentence, I make no finding as to whether the deceased was in fact having an affair but it seems clear her feelings for the prisoner had waned over probably a lengthy period and he resented this. I have no doubt that his motivation was to scar his wife so she would be attractive to nobody else. The relationship was very strained on Christmas day and had been it seems for a long period. I consider that something must have operated as a trigger to cause him to act as he did the morning following Christmas day when earlier he had intended to cook chicken and take the children to the beach. The Crown case was never one that he intended to kill his wife, and I consider that his intention to scar her so she would be unattractive to others was inconsistent with any murderous intent. I am prepared to accept for the purposes of this sentence that he did, as he said in evidence, sight a text message to his wife from her alleged admirer that morning, although I do this on the basis of giving the prisoner the benefit of the doubt. Before he poured the oil on her there was evidence that he had taken the pot out and placed it on a table outside. Plainly, he appreciated that it was very hot because he had some protection on his hands when he handled the pot. His motive for pouring oil on her to scar her face so she would not be attractive to others was callous, brutal and a wicked response to her perceived infidelity. I consider he had ample time to reflect on the consequences of what he would do when he uplifted the pot and took it outside and must have appreciated that at the very least she would suffer considerable harm and suffer agony as a consequence of hot oil being poured upon her. Plainly, she died later at the hospital as a consequence of what must have been an extremely painful and lingering death.

[6] I have had reason to consider starting points for manslaughter in a number of recent cases. These were summarized in R v Patric Unga CR 84/2014. Also sighted to me as sentencing comparables in this case by the Crown were cases involving provocation where manslaughter. In Vaomotou v R [2014] Tonga LR 62, for example, the prisoner had been acquitted of murder of his wife apparently following a successful defence of provocation, (although it is unclear what that provocation was) and had been sentenced to 16 years imprisonment with the final two years suspended by the sentencing Judge .

[7] In Vaomotou, the Court of Appeal observed;

".....in the present case, we consider that the combination of extreme violence (the use of a knife some 23 times on a sleeping woman) and the absence of provocative behaviour at the actual time of attack require a starting point (before mitigating features are taken into account) beyond the 10-12 years range. The starting point in our view should be 14 years imprisonment."

[8] The Court of Appeal considered that substantial credit should be given for the early confession and guilty plea, the appellant's remorse, his disordered state of mind and the fact he was a first offender. In the light of these matters, the Court of Appeal considered that the appropriate sentence was 10 years, a discount overall of 4 years imprisonment from the starting point of 14 years. The final 2 years of his sentence was suspended because he was considered to be unlikely to commit such a crime again.

[9] In Tu'itavake v R [2005] TLR 348, the Court had to consider another manslaughter sentence also after a successful defence of provocation to murder, in this case provocation under section 89(a) of the Criminal Offences Act which involves a violent act of aggression as provocation. The sentencing Judge had sentenced the accused to ten years imprisonment with the final two years suspended for two years. The Court of Appeal, after reviewing English authorities and guidelines on provocation and sentences for manslaughter, concluded that the sentence was manifestly excessive and imposed a sentence of 5 years imprisonment, the final two years of which were to be suspended. In that case, the prisoner was regarded as being under considerable or extreme provocation when attacked by the deceased.

[10] Although I am satisfied that the prisoner's motive for acting as he did was because he believed that his wife was having an affair, I do not regard this as any reason for mitigating his actions. Even if he acted in the belief that his wife was having an affair and out of a misguided attempt to keep her, this could not excuse or lessen the criminality of his actions. He had in my view ample opportunity to desist from burning her. He was seen to place the hot oil down on a table outside the house before returning into the house to pour it over her. I observe that in Kofutu'a v R [2010] TLR 120 the Court of Appeal did not interfere with a starting point of 15 years for punching a woman repeatedly in the body leading to her death. The paramount sentencing factor in a case like this is the loss of human life attributable to the prisoner's actions. A further important sentencing rationale where death arises from a gross act of domestic violence is to denounce and deter the conduct and protect women. I consider an appropriate starting point to be one of the 15 years imprisonment to reflect the criminality and cruelty inherent in the prisoner's actions.

[11] I now consider the mitigating factors. The probation report indicates that the prisoner has led a life which has been constructive. He is 42 years of age and had lived in Navutoka where the incident occurred. He had been married since 2000, and has four children ranging from 12 to 6. He left secondary school early because of low achievement; however, he seems to have been in gainful employment earning income for his family by taking any job available to him. He has carpentry skills and performed carpentry for employment much of the time. At other times, he fishes for extra income.

[12] He was a talented soccer player and he represented Tonga as a national player and coach and has been involved in various ways training and in workshops. He became assistant coach for the national under 17 boys team for the Oceania Qualifying Tournament in 2013.

[13] His pastor of the Gospel church wrote of problems in the marriage going back 10 years. The prisoner would ask for help in trying to unite his family. He loved he says his wife and children. He was committed to weekly bible studies. His children are plainly the losers also in his offending and the Pastor writes of this, also.

[14] The prisoner has a previous recent conviction for housebreaking for which he received a small fine, and a conviction for diving offences but nothing for personal violence.

[15] The probation report states he is remorseful and that is the impression I got during his evidence when he was tearful, at times. He maintained this also at sentence in a short personal statement.

[16] From the starting point of 15 years, by way of mitigation, I allow Mr Taufahema a discount of three years imprisonment which takes into account his guilty plea to manslaughter, his co-operation with the police, his remorse and his overall history of relatively positive achievement. Taking into account, these mitigating factors, his actions were, however, premeditated and heartless, and I impose a sentence of 12 years imprisonment for manslaughter for which he is convicted. As I have said, I do not regard his difficult marriage or the deceased's perceived infidelity as any mitigation for such a cruel and wanton act. The sentence is to be backdated to the date of his remand in custody.

[17] However, taking into account his co-operation with police, his guilty plea and his expression of remorse, I consider it is unlikely he will be involved in any action of this kind, or indeed violence of any kind, again. Any criminal history he has does not include violence. I consider he is capable of rehabilitation and there is an indication that he has been involved with religious study in prison, already. Accordingly, I suspend the final two years of his sentence on the following conditions;

1. He is not to commit any offences punishable by a term of imprisonment for two years.
   

[18] The Solicitor-General is appointed as Guardian ad Litem to report to me as soon as possible as to appropriate arrangements for the custody and welfare of the children under the Guardianship Act. This report should be placed before this Court when this matter will be next considered with a view to appropriate orders being made by me on the 1st March, 2016.

C. B. Cato
NUKU'ALOFA: 26 JANUARY 2016
J U D G E