Rex v Taliai - Sentence [2018] TOSC 56; CR 119 & 121 of 2017 (19 October 2018)

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

CR 119 & 121 of 2017

BETWEEN: R E X - Prosecution

AND: 1. HALAHONE TALIAI
2. SOSEFO MALIMALI VEA - Defendants

BEFORE THE HON. JUSTICE CATO

Counsel: Mr. T. ‘Aho for the Prosecution

Mr. C. Edwards SC for both defendants

S E N T E N C E

Halahone Taliai

1. At the conclusion of a lengthy joint trial before a jury the accused, Halahone Taliai, was acquitted of murder under sections 85, 86(1) (a), 87(1) (a) and (b) of the Criminal Offences Act but was convicted of manslaughter under sections 85, 86(1) (a) and 92 of the Criminal Offences Act. His younger brother, Sosefo, or Malimali as he was referred during the trial, was also jointly tried for murder or manslaughter arising out of the same incident. He was acquitted of both charges, which were founded on common purpose or joint enterprise, but was convicted of an alternative count of causing serious harm under sections 107(1), (2)(c) and 4(a) of the Criminal Offences Act. They appear for sentence today.
   
2. The victim was Mr ‘Aiveni Tui who was aged 36 and was married with a young child. The incident out of which his death arose in the morning of the 22nd October 2016 at Vaini, involved the use of a machete by Mr Taliai to inflict deep wounds to his left arm around the elbow area and a deep wound to the back of his right leg. A pathologist gave evidence that the injuries to the arm were consistent with the arm being in a defensive position. The blow which she opined had been delivered with considerable force cut through the muscles and two bones, the radius and ulnar which support the forearm; and blood vessels and arteries were cut. She said that the other wound which was about 200mm in length cut through calf muscles, the fibula, bones, and blood vessels.
   
3. These wounds caused death by extensive blood loss, renal failure of the kidney and low blood supply. Considerable force was, she said, required to fracture bone.
   
4. The accused today aged about 23 and his younger brother 21 had arrived at an area around the solar plant in Vaini, it seems at different times in the early hours of the 22^nd October 2016. There were a number of other young men, a woman and a security guard in the area and the group drank for a lengthy period together including with the victim and others and without incident. Eventually, Halahone, and Malimali left with others in their car to go elsewhere and obtain further alcohol. The evidence revealed that a substantial amount of alcohol (spirits) and marijuana had been consumed that night by the accused and probably others that were at the drink up. It was discovered that they had left behind a speaker and a phone and later went back to retrieve those items. Malimali was sent to recover the phones whilst the men waited in the car for him to return some distance from the solar plant area. Malimali did not manage to retrieve the items and suggested to the others on his return that he had been involved in a fight with them which may not have been true.
   
5. This appears to have motivated Halahone and some of the men in the car to return to retrieve the items, and, in case of a fight, Halahone took with him a machete and Vea a hammer from the car. Other men joined them and walked back from the car to the area of the drink up. I am satisfied that Halahone, when he returned was in an angry mood, and turned his anger on several of the group after he had requested the items, using his machete in an intimidating way towards some of those present. After what seems to have been a short time according to Halahone in his record of interview, he confronted ‘Aiveni who threw a bottle at him. He struck ‘Aiveni with the flat side of his machete. ‘Aiveni ran away and was chased by Malimali Vea and another around the area of the victim’s car. He had fallen to the ground facing upwards where Halahone, in his record of interview, said he hit him with the sharp edge of the machete on his leg and arm. He said Aiveni apologised to him and he stopped. He admitted to be very angry when he hit ‘Aiveni.
   

6. At trial, Halahone said that he had been hit by a hammer thrown by ‘Aiveni and could not recall striking the deceased. He said he had been intimidated by the police into making admissions to striking ‘Aiveni. Mr Lutui, in cross-examination, suggested that he was making his evidence on this point up because nothing of this kind had been put to the interviewing officer. I do not accept the evidence of Halahone that he had blacked out after being hit by a hammer and I consider that what he told the police about striking the victim with the sharp edge as he was on the ground a reliable account of his actions. I accept the evidence that afterwards Halahone and Malimali left the scene, without attending to the victim or inquiring about his health, and carried on drinking until the police came and arrested them later that day. In my view, this was a violent and senseless attack with horrendous consequences. Mr Tui was left to bleed from two very serious wounds before being taken to hospital where he later died. In my view, it must fall squarely in the upper level of manslaughter sentencings, the maximum sentence being 25 years imprisonment.

7. As for Mr Vea, on the evidence that I heard and bearing in mind the Jury’s verdict, I accept his account in his record of interview which he did not dispute that he and another had chased Mr Tui and that Vea had hit him with a hammer, shortly before he fell to the ground. He did not know where he hit him. I accept the medical evidence that there was a laceration which the pathologist considered could have been derived from the use of a hammer although an alternative of injury by falling to the ground and head hitting a rock was suggested to them by the defence. I accept that there was evidence from which the Jury could find Mr Vea guilty of causing serious harm being the laceration or wound to the head. In my view, the use of a weapon such as a hammer which Mr Vea carried to the drinkup anticipating violence and later using it to inflict actual violence, during the course of an aggressive attack on Mr Tui at some time before he was struck by Halahone is an assault which also must fall within the upper range of sentence for this offending, the maximum sentence being five years imprisonment.
   
8. As for Mr Halahone, I have considered the submissions of the Crown which was for a starting point just falling short of 20 years. I am guided by the decision of the Court of Appeal in Kofutu’a v R [2010] Tonga LR 120 where following a prolonged beating of a mentally slow woman with whom he was in a sexual relationship the appellant had been sentenced to 15 years without any part being suspended. The appellant was 19 at the time of the offending, the Court of Appeal reduced the sentence to 13 years because the Judge had not taken into account sufficiently his youth, remorse and apology, restitution to the family, and his co-operation. Three years by way of suspension was also part of the varied sentence. This case is different in that it was not prolonged violence but it was a case involving the use of a machete with considerable force to break bones and inflict two very serious injuries to a man who was on the ground when the blows were delivered with the sharp end of a machete. The photographs tendered in evidence clearly show the destructive nature of the blows.
   
9. In my view, the starting point in Kofutu’a would have been about 15 years before mitigating factors were considered. Halahone was about 21, still a youngish man when he inflicted these injuries.
   
10. I questioned Mr Edwards at length during submission on sentence as to whether anything done by the victim, Mr Tui, could be taken into account as provocation for the purpose of sentencing Mr Taliai on manslaughter after Mr Edwards had raised this with me. Mr Edwards had at trial raised self-defence which out of caution I had allowed to go to the jury; however, this was plainly rejected by the jury in returning a verdict of guilty on manslaughter. Provocation, Mr Edwards submitted was nevertheless a factor I could consider on determining the starting point.
    
11. I have reviewed the evidence on what might be considered provocation. Mr Taliai, in his record of interview, had said that when he had approached ‘Aiveni about the property he had been hit with a bottle and had responded by striking ‘Aiveni with the side of a machete. It had hit Aiveni’s thigh as he was sitting on the electric post. He said Aiveni was then chased by Vea and others behind Aiveni’s car. He said he had struck the security’s back. Vea and others had caught ‘Aiveni beside ‘Aiveni’s car. ‘Aiveni had fallen to the ground with his head facing up. He said he hit Aivenis’ hand with the sharp edge of the machete and again on the leg. It seems the others were smashing ‘Aiveni’s car. He said he hit Aiveni twice with the sharp edge of the machete. He said he was angry when he hit him. He stopped when ‘Aiveni apologised.
    
12. The only other evidence came from a witness Kivalu, a young man who had been with Halahone’s group when they returned to the drink up. He said he saw Malimali and Halahone attack ‘Aiveni and Vea had attempted to hit ‘Aiveni with a hammer. He said that Halahone had a machete. ‘Aiveni was walking backwards Halahone had his machete raised and the hammer was raised, also. He said that ‘Aiveni was throwing stones or gravel as he was stepping backwards. ‘Aiveni grabbed a hammer from the car, and attacked forward with the hammer and the men exchanged strikes. He saw ‘Aiveni throw the hammer at Halahone. He said it hit Halahone on the forehead and he became angry. Shortly after, he said Halahone struck ‘Aiveni on the ground. His account of the final assault with involvement from Vea also was graphic involving Vea holding up the victim’s leg whilst Halahone struck at it. However, I consider that this aspect of his evidence could not have been accepted by the jury in the light of their verdicts in relation to Mr Vea of acquittal of both murder and manslaughter.
    
13. Having reviewed the evidence, I consider that it is possible that ‘Aiveni did strike the accused Halahone with a bottle and this may have further angered Halahone who by then had produced the machete in an intimidating manner in relation to others present. Shortly after this, as he was being attacked by the men according to Kivalu, the victim produced a hammer from his car which Kivalu said he saw being thrown at Halahone hitting him on the forehead. That Kivalu said made Halahone angry. Looking at all the evidence on this point, I am prepared to accept that there may have been some provocation by the victim shortly before the final assault, but it was given in response or provoked by the aggressive conduct displayed by Halahone that evening. I consider at the highest for Mr Taliai this could only be very moderate provocation for Mr Taliai’s actions in stabbing a man who I find was on the ground looking up when struck with the sharp edge of a machete with considerable force.
    
14. I consider the use of a weapon to inflict the severe injuries that lead to death in a situation where there was no provocation must be reflected in a high starting point, which I fix as 15 and a half years. Mr Edwards when asked about what he would view as an appropriate starting point without provocation had submitted 12-14 years. Mr Aho as I have said had submitted about 19 years imprisonment which, in the light of Kofutu’a, I consider excessive.
    
15. I also have read what was said in Tu’itavake v R [2005] Tonga LR 348, at 393 para 200 (CA) concerning provocation, the carriage of weapons for fighting and the serious aspect of bringing a knife to a fight intending to use it. Machetes are lethal weapons and in Tonga, unfortunately, all too often are used in criminal activity including fighting. I do not regard this as a case like Tu’itavake where extreme provocation had been successfully raised as a defence to murder. The English guidelines referred to there would seem to apply in cases where provocation was raised as a defence successfully to murder. That was not the case here. Provocation is merely being raised in a reduction of culpability but not pursuant to any defence of provocation as in Tu’itavake where the range of sentences can be lower depending on what factors are present. At the material time when the fatal blows were inflicted, the victim was on the ground and had no weapons. As a bushman himself, Halahone would well know and understand the damage a machete could cause. That said I am prepared to allow a year off the starting point of 15 and a half years to reflect the fact that the accused may have been assaulted by a bottle and a hammer shortly before the fatal attack and this had heightened his anger. I do not agree with Mr Edwards that provocation in a case of this kind should reduce the starting point to as much as 7 or 8 years following Tu’itavake. I consider the seriousness of manslaughter in circumstances such as these where the maximum sentence is 25 years requires a far greater starting point in a case of considerable brutality which is reflected in a comparable level as that in Kofutu’a.
    

16. I set the starting point here as 14 and half years after allowing a year for any provocation given on the part of the victim which I view somewhat sceptically. The factors that are in my view important in objectively assessing this starting point and the accused’s culpability are, the death of the victim, the fact that the accused carried a machete in anticipation at least of a fight, as a bushman he would know the potentially lethal nature of wounds that could result as a consequence of a strike with a machete, the fact that he deliberately used the sharp edge of the machete when it seems he had used the flat edge earlier in intimidation of others, striking the accused twice on the ground when he was defenceless and posed no threat and callously leaving him to suffer when he must have known he had inflicted very serious injuries, and then leaving to drink further elsewhere with others until police much later arrived.

17. The accused is a first offender and I am satisfied that he has expressed remorse for his actions including apologizing to the victim’s wife who had a young child and was left without support. Some restitution was also provided by the accused’s family. She has since remarried. She has accepted the apology. For these factors, I allow the accused 18 months imprisonment by way of mitigation. The sentence I impose after conviction for manslaughter is thirteen years imprisonment. This sentence is backdated to his remand in custody.
    
18. I have considered the question of suspension. The accused is, as I have said, about 23. I consider that he may be able to rehabilitate and hopefully may learn from this event. He is a bushman or plantation worker with no formal education. He supported his elderly parents from his work on the plantation. It is plain in my view that he had developed a serious problem with alcohol and marijuana consumption leading I have no doubt to his aggression in this offending. I suspend the final three years of his sentence on the following conditions;
    
    1. He is not to commit any offences punishable by imprisonment for the period of his suspension;
       
    2. He is placed on probation for the period of his suspension to live where directed by his probation officer;
       
    100. He is not to consume alcohol or drugs during the period of his suspension,
         
    4. He is to attend a course on violence (anger management) and in relation to alcohol and drug abuse under the direction of probation and the appropriate agency for these programs.
       
19. He is warned that a failure to abide by any of these conditions may well mean that he is returned to prison to serve the balance of his term of imprisonment.
    

Sosefo Malimali Vea

20. Mr Vea was aged about 19 at the time of the incident. He is a younger brother of the accused Mr Halahone Taliai.
    
21. Mr Edwards submitted that his sentence for serious bodily harm should be a starting point of two years. Mr Aho submitted four years emphasising the fact that he carried a weapon namely a hammer to the fight and used it by striking the head of the accused causing a laceration and according to the doctor some internal bleeding. I consider that an appropriate starting point is three and half years. It would seem that the blow he delivered whilst causing the deceased to fall to the ground was not much more than a laceration. However using a weapon to inflict a wound to the head is serious offending as Mr Aho submitted. Mr Vea, as he admitted in his record of interview, was heavily involved in the events of that evening although the verdicts of the jury acquitted him of murder or manslaughter. He was chasing the victim before using the hammer.
    
22. Like his brother, he is remorseful aged 21 now and states that he feels awful about the offending. He had also apologized to the victims’ wife and his family have effected some restitution. He had only a limited education although was said to be bright and has no previous convictions. The probation report asserts that he also has developed a drug and alcohol problem. I allow him 15 months imprisonment by way of mitigation meaning his sentence will be two years and 3 months imprisonment backdated to the date of his remand in custody.
    
23. In his case, the final 6 months imprisonment is suspended on the following conditions;
    
    1. He is not to commit any offences punishable by imprisonment for the period of his suspension;
       
    2. He is placed on probation to live where directed during the period of his suspension;
       
    100. He is not to drink alcohol or take drugs during the period of his suspension.
         
    4. He is to attend courses on violence and anger management, and alcohol and drug abuse during the period of his suspension under the direction of probation and appropriate agency.
       
24. He also is advised that a failure to carry out the terms of his suspension may mean that he has to serve the balance of his sentence of imprisonment.
    

25. Should there be difficulties in implementing the suspended part of this sentence of Mr Vea in the light of the fact that the sentence has been backdated, Mr Edwards may bring the case back before me for variation. I understand the accused has been in custody for a considerable period of time and it may be that the suspension is academic. His release date is for the prison authorities to work out.

C. B. Cato
DATED: 19 OCTOBER 2018 J U D G E