R v Lavelua [2018] TOSC 50; Criminal Case 105 of 2018 (28 September 2018)

BETWEEN: REX

Prosecution

AND : ANDY LAVELUA

Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Hearing : 28 September 2018
Date of Sentencing : 28 September 2018

Counsel : Ms ‘A Kefu for the Prosecution

The Accused in person

SENTENCING

[1] Mr Lavelua was arraigned on one count of serious causing bodily harm contrary to ss. 107(1) and 2(b) Criminal Offences Act and one count of domestic violence contrary to ss. 4(a), 5(d) and 28(1)(a) Family Protection Act. Mr. Lavelua pleaded guilty to both counts.

[2] The maximum sentence for serious causing bodily harm is imprisonment for a term not exceeding 5 years.

[3] The maximum sentence for domestic violence (for a first offence) is imprisonment not exceeding 12 months or a fine not exceeding $2,000 or both.

The facts

[4] The summary of facts is accepted and the relevant facts are as follows:

[5] Mr Lavelua is a 22 year old man. The victim is Fale Palavi, who was just nine at the time of the offences and is in Class 4 at the Ma’ufanga Government Primary School. The victim and Mr. Lavelua are related and live in the same household at Ma’ufanga. Mr. Lavelua is regarded as an older brother of the victim.

[6] On 27 January 2018 at approximately 10:00am the victim was at home watching cartoons with his great grandfather, ‘Aisea Moala, and another young family member. ‘Aisea is elderly. Mr. Lavelua arrived home drunk.

[7] Mr. Lavelua walked to his room and then came out. Something had upset him and he set upon the victim slapping and punching him in the face and head. The attack was unprovoked. He threatened to beat the victim until he died.

[8] The attack was clearly a ferocious one that lasted some considerable period of time. ‘Aisea attempted to intervene but could not physically restrain Mr. Lavelua. The victim was punched in the head repeatedly and did his best to stop the attack but with little success.

[9] ‘Aisea called the Police, but Mr. Lavelua continued to hit the victim. ‘Aisea also called out to the neighbours for help. A neighbour, Lupe Mafi, ran over from her house and tried to stop Mr. Lavelua but she could not because he was too strong. Mr. Lavelua continued punching and slapping the victim. Fortunately another neighbour, Malia Kivalu, also heard ‘Aisea shouting and her daughter Pulotu Kivalu ran over and held Mr. Lavelua back so that the victim could escape to a neighbouring property.

[10] The Police then arrived but it was not until two days later on 29 January 2018 that the victim was seen at Viola Hospital where he was found to have significant swelling and bruising to his face and right eye. He also suffered damage to his teeth and was taken again to Vaiola Hospital on 30 January 2018 and he lost a tooth.

[11] Mr. Lavelua was co-operative with the Police and pleaded guilty upon his arraignment.

The material before me

[12] I have before me the pre-sentence report along with victim impact reports. I have also had the benefit of counsel’s submissions and have heard from Mr. Lavelua.

[13] The pre-sentence report makes sad reading. Mr. Lavelua is the eldest of his parents’ nine children. He lives in a house with family members spanning a number of generations. The house is frequently a venue of drinking parties which result in public disturbances. Neighbours complain about the drinking, swearing and violence.

[14] Mr. Lavelua has not thrived in his home environment. He dropped out of High School in Form 3 and it appears that the only time he enjoyed school was when he moved away from home whilst in Form 2. Upon returning home he was influenced badly by the alcohol, began drinking again himself and dropped out of school and never returned. He has had some employment as an unskilled labourer but this is not regular.

[15] Mr. Lavelua has a serious problem with alcohol abuse He advises that he has one previous conviction for ‘an alcohol related offence’ that saw him fined but the information before me (including a statement from his mother) indicates that he spends a lot of time drinking with friends and in bars. This attack on the victim, which was clearly fuelled by alcohol, was not the first time that such an event has occurred.

[16] Mr. Lavelua has expressed remorse for his offending and says that his relationship with the victim has been restored. The victim reports that Mr. Lavelua beats him while drunk and it is heartbreaking that he also says that was not affected by the attack because such behaviour is normal when Mr. Lavelua is drunk. The normalisation and acceptance of such severe violence in the mind of the victim gives cause for grave concern as to the long term emotional and psychological effects he is suffering in his home environment at the hands of Mr. Lavelua and others.

[17] Despite this, it is clear from the victim impact reports that the victim found this attack particularly distressing because there was no one immediately on hand who was capable of stopping it

Discussion

[18] The lead offence is serious causing bodily harm. There are a number of aggravating features of this offending including the unprovoked nature of the attack and the ferociousness and extended period of the attack. Most importantly the victim was just 9 years old and given his tender age relative to Mr Lavelua he had no realistic prospect of being able to defend himself.

[19] A further aggravating feature is that Mr. Lavelua is regarded as an older brother to the victim and is in a position of trust and held power over him. Mr. Lavelua’s conduct was a significant breach of trust and an abuse of power in relation to a very vulnerable member of his family.

[20] Whilst it is the case the victim did not suffer any permanent physical injuries as a result of the attack that was only because of the intervention of outsiders who were able to hold Mr. Lavelua back for long enough that the victim could escape. Had they not been present the attack would have continued with potentially tragic consequences.

[20] Taking these factors into account the starting point for sentencing purposes is 2 years and 6 months imprisonment

[21] In terms of mitigating factors Mr. Lavelua has expressed remorse and is of the view that his relationship with the victim has been restored but I put little weight on that. This was not the first time that Mr. Lavelua has attacked the victim. The attack was therefore not out of character for Mr. Lavelua and any remorse is likely to be a reflection of the fact that he is now being held to account rather than a developing self-awareness of wrong doing.

[22] Mr. Lavelua is entitled to credit for the fact that he cooperated with the Police. He is also entitled to credit for his early guilty. For these factors I discount 9 months of his sentence. In my view the appropriate sentence on the charge of serious causing bodily injury is 1 year and 9 months imprisonment.

[23] I have considered whether the sentence should be suspended in full or part. Mr. Lavelua meets the requirements for the suspension of some portion of his sentence (Mo 'unga [1998] Tonga LR 154.). He is to be regarded as a first offender and I will not reject the possibility that he may rehabilitate himself if he remains away from alcohol.

[24] However, against that his offending was grave with significant aggravating features and it would not reflect the seriousness of his offending or the public interest in denunciation and deterrence to fully suspend his sentence. In the circumstances I have decided to suspend the last 9 months of his sentence on conditions which I hope will promote his ultimate rehabilitation.

Result

[25] On the charge of serious causing bodily injury contrary to ss. 107(1) and 2(b) Criminal Offences Act Mr. Lavelua is convicted and sentenced to 1 year and 9 months imprisonment. The sentence is backdated to 29 August 2018 to reflect time served by Mr. Lavelua. The last 9 months of Mr. Lavelua’s sentence is suspended subject to conditions:

(a) He is to be on probation during the period of suspension;

(b) He is not to commit any offences punishable by imprisonment during the period of suspension;

(c) He is to live where directed by his Probation Officer during the period of suspension;

(d) He is not to consume alcohol during the period of suspension;

(e) He is not to contact or associate with the victim during the period of suspension;

(f) He is to enrol and complete during the period of suspension the following courses with the Salvation Army:

(i) Alcohol and Drug Awareness course;

(ii) Life skills course;

(iii) Anger management course.

[26] On the charge of domestic violence contrary to ss. 4(a), 5(d) and 28(1)(a) Family Protection Act Mr. Lavelua is convicted and sentenced to 6 months imprisonment to be served concurrently

[27] I make an order prohibiting the publication by any person of any details of this case that may lead to the identification of the identity of the victim.

O.G. Paulsen

NUKU’ALOFA: 28 September 2018. LORD CHIEF JUSTICE