R v Kaufusi [2019] TOSC 9; CR 108 of 2018 (21 January 2019)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 108 of 2018

BETWEEN: REX

Prosecution

AND: HATENI KAUFUSI

Prisoner

BEFORE LORD CHIEF JUSTICE PAULSEN

Counsel: Ms. L Macomber for the Prosecution
Mr. S Tu’utafaiva for the Prisoner

Date of Hearing: 21 January 2019
Date of Decision: 21 January 2019

SENTENCING REMARKS

[1] Following a trial before judge and jury Mr. Kaufusi was acquitted on a charge of murder but found guilty of one count of manslaughter contrary to ss. 85, 86(1)(a) and 92 of the Criminal Offences Act. The particulars of the charge were that on 4 February 2018 at Te’ekiu Mr Kaufusi caused the death of Tolifili Tu’alau (the deceased) when he unlawfully stabbed him in the back with a pair of scissors causing a serious injury to his back and his death.

[2] Mr. Kaufusi appears for sentence today. The maximum penalty for this offence is 25 year imprisonment pursuant to section 93 of the Criminal Offences Act.

The facts

[3] Mr. Kaufusi is 32 years old and resides at Te’ekiu. He had been introduced to the deceased in around 2017 and was on friendly terms with him.

[4] In the early afternoon of 4 February 2018 Mr. Kaufusi was roasting a pig at Vaotu’u to welcome relatives. The deceased and another man arrived and they began a drinking session.

[5] The deceased insisted that Mr. Kaufusi drive him to Pea despite Mr. Kaufusi explaining that his car had no petrol. Mr. Kaufusi relented and they set off but the car ran out of petrol at Liahona and they pushed it to a nearby house. While Mr. Kaufusi was inside the house the deceased had the car towed to his home at Vaotu’u (leaving Mr. Kaufusi at Liahona) and the car window was broken.

[6] Mr. Kaufusi was able to get a ride back to Vaotu’u and made arrangements with some acquaintances to have his car towed to his home at Te’ekiu. He learned that the car had been damaged and there was an altercation between Mr. Kaufusi and the deceased, but what was involved with this was not explored in the evidence. However the two men made up and apologized to each other and the deceased agreed to repair the damage to the car.

[7] The car was pushed to the road and made ready to be towed. Mr. Kaufusi said he was surprised when the deceased got into the car for the journey to Te’ekiu and he told him to get out but he would not. The deceased had no reason to go with Mr. Kaufusi. They towed the car to Te’ekiu and the car was pushed to the rear of the property and the men who assisted left leaving Mr. Kaufusi and the deceased alone. They were sitting in a small house at the rear of the property.

[8] The two men then got into an argument. We have only Mr. Kaufusi’s evidence as to what followed. I accept his evidence in the following respects. Mr. Kaufusi told the deceased that he had caused all the problems with the car and the deceased gave a smart answer back and said that Mr. Kaufusi should take part in fixing the car. Mr. Kaufusi said he would make a complaint against the deceased. The deceased then lunged forward at him with something in his hand, which turned out to be a pair of scissors. They argued further and Mr. Kaufusi threw a plate at the deceased which hit him in the forehead. He then tackled the deceased who fell back on to chairs. Mr. Kaufusi was on top of the deceased and tried to snatch the scissors from the deceased and he forced the deceased’s hand down and the scissors sank into the deceased’s leg causing a wound. Mr. Kaufusi was able to snatch the scissors but was punched and thrown to the ground. The deceased was then on top of him strangling him so he used the scissors to stab the deceased. He intended to stab him in the shoulder but in fact stabbed him in the back.

[9] Mr. Kaufusi lifted the deceased into a chair and pressured the back wound which was bleeding heavily and called out for help. Help did not come immediately. He took the deceased outside and lay him in front of his car and then went in search of someone with a vehicle to take the deceased to hospital.

[10] There was evidence from a witness who said that he heard Mr. Kaufusi yell the words ‘Tonight I will kill you’. This might have been evidence of a murderous intent but given its verdict I consider that the jury did not accept the evidence. It was materially different what another witness said he heard. The same two witnesses said that they observed Mr. Kaufusi punch the deceased outside the small house. Mr. Kaufusi denied this. I consider it likely that the jury did not accept this evidence either. Mr. Kaufusi was taking steps to get help and it is incongruous that he would punch the deceased at that time. I myself had doubts about the witnesses’ ability to observe what was happening from a distance, at night with very limited lighting.

[11] Mr. Kaufusi found a neighbor with a flat deck truck who was prepared to help. The truck was taken to Mr. Kaufusi’s property and the deceased was put on the back. Other men had arrived to assist. The accused was taken to the hospital but died on arrival. Mr. Kaufusi traveled on the truck with the deceased and he went into the hospital to get the Doctor and a bed for the deceased.

[12] Mr. Kaufusi then returned to Te’ekiu and was arrested early the next morning. He co-operated fully with the Police. A post mortem was carried out and found that the cause of death was excessive loss of blood due to the stab wound in the back.

The material before me

[13] I have been provided with:

(a) A pre-sentence report along with references for Mr. Kaufusi;

(b) Submissions from the Prosecution along with relevant authorities; and

(c) A family impact assessment report.

[14] I also heard submissions from Mr. Tu’utafaiva on behalf of Mr. Kaufusi.

Pre-sentence report

[15] Mr. Kaufusi is the youngest of seven children. He was adopted by an uncle with the intention of taking him to New Zealand but the uncle died and he remained in Tonga at that time. He was educated to Form 3 at Liahona. His parents moved with him to New Zealand in 2006 where he married. He separated from his wife but there is one child of the marriage and he has one other child from another relationship. As a result of his involvement with a gang, and I infer associated criminal activity, Mr. Kaufusi was returned to Tonga in 2016.

[16] Mr Kaufusi has a partner who is fully supportive of him and who he intends to marry. He has been working in construction. He has also been active in the Church and contributes to community services. He is highly regarded and he has very strong support from his family.

[17] The pre-sentence report notes, and I accept, that Mr. Kaufusi regrets what occurred and that an apology has been made to the family of the deceased and gifts presented in the customary fashion. I understand these have been accepted.

[18] I am told that Mr. Kaufusi has no criminal history in Tonga and the pre-sentence report notes that a risk assessment has been carried out and he is a ‘low risk’ meaning that there is low potential for further offending with appropriate re-integration into society after serving his sentence.

Family impact report

[19] The deceased was married with four young children. Whilst the two older children understood that there father would not be returning home the third child, who is just 3 years old, laments his father’s absence and is said to be sad every day.

[20] The deceased’s wife is unemployed but receives financial and other support from her family. She is at peace with the verdict of the jury and has forgiven Mr. Kaufusi. She also acknowledges that Mr. Kaufusi’s family has presented gifts and sought forgiveness during the deceased’s funeral which had been accepted by her and the family.

The Prosecution’s submissions

[21] Ms. Macomber referred me to the Court of Appeal decision in Tu’itavake v R [2005] Tonga LR 348 and the Supreme Court decision in R v Hafoka (CR 123 of 2015) for guidance as to the appropriate sentence.

[22] Ms. Macomber submits that there are both aggravating and mitigating features of this offending. She points out that the death was caused through the use of a weapon (scissors) and that two stab wounds were inflicted. In terms of mitigating factors she accepts that there was some moderate element of provocation and that Mr. Kaufusi has no previous convictions in Tonga (albeit he may well do so in New Zealand) and also acknowledged the steps he took to render assistance to the deceased.

[23] Ms. Macomber submitted in her written submissions that the appropriate starting point is 8 years imprisonment which should be reduced by 6 months for the mitigating factors. During her oral presentation she accepted that a starting point of 7 years would be appropriate and that greater allowance could be given for mitigating factors. Ms Macomber recognises that it would be appropriate to suspend some part of the sentence based on the principles in Mo’unga v R [1998] Tonga LR 154 and submitted that the last 12 – 18 months of the sentence might be suspended.

Discussion

[24] I have had regard to a number of authorities in addition to those to which Counsel referred me, including R v Kaho (CR 136/09), Kofutu’a v R (AC 33 of 2009); R v ‘Ahoafi (CR 103 of 2013), R v Nisi (CR 182 of 2014) and R v Unga (CR 84 of 2014), all of which serve to confirm the point made by the Court of Appeal in Tu’itavake, at [12], that as the circumstances under which the offence of manslaughter may be committed vary so greatly there can be no tariff and in each case ‘the task of the Judge is to determine the true culpability of the offender in the particular circumstances of the case’.

[25] The cases affirm the sanctity of human life as a fundamental value of society and ‘demands that the taking of life be met with appropriate condemnation’ albeit that the sentence imposed should bear relation to the circumstances of the particular offence and the particular offending (see for instance Tu’itavake at [13]).

[26] Also in Tu’itavake the Court of Appeal, at [18], noted that in cases where an accused is acquitted of murder but convicted of manslaughter the verdict might be reached on the basis that the accused was provoked or lacked murderous intent and that the trial judge should determine at sentencing which is the more likely explanation for the jury’s verdict and give reasons. At his trial Mr. Kaufusi relied on the defences of self-defence and provocation although lack of murderous intent was also put to the jury. The jury rejected self-defence and I agree with Ms. Macomber’s assessment that this was likely because the jury considered that Mr. Kaufusi’s response in his defence was excessive. There was a degree of provocation in this case in the deceased lunging towards Mr. Kaufusi with an object in this hand that led to them fighting and ultimately his death. It was an issue for the jury whether Mr. Kaufusi had as a result of the provocation lost his self-control. There is force in Mr. Tu’utafaiva’s submission that it is most likely the jury reached its verdict by this route because that was how he had presented Mr. Kaufusi’s defence to them. I proceed on the basis that the verdict was arrived at on the basis of provocation.

[27] Ms. Macomber refers to the use of scissors as an aggravating feature of this case. Many of the cases I have considered involved death caused through the use of knives and in Nisi Cato J (at [6]) noted that a high starting point for sentencing purposes is called for where knives and other weapons are used during the commission of an offence and death results. He said that deterrence and the protection of society are important sentencing principles in such cases. I agree with that, but note that the authorities distinguish between cases where the offender carries a weapon with the possibility of violence being anticipated and it is used to inflict lethal injuries and cases where the offender has the knife in his possession for legitimate reasons unconnected with the offending (Tu’ituvake) or, as here, where the weapon is presented by the deceased. This case is removed from, say, the circumstances in Hafoka where the offender chose to attack the deceased and took a small knife from his pocket and stabbed the deceased in the abdomen.

[28] The Prosecution referred to the sentencing ranges in Tu’itavake. Relevantly, in manslaughter cases involving provocation these are:

[2] 10-12 years Knife carried and used or great brutality;

[3] 7 years Moderate provocation and sudden retaliation;

[4] 5 years A high degree of provocation, sudden retaliation, strong mitigation; and

[5] 3 years or less The highest degree of provocation including violent attack, event terror, evoking extreme passion.

[29] Mr. Tu’utafaiva submitted that this is a category 2 or 3 case and argued for a starting point of 5 years imprisonment. Ms. Macomber considers that this is a category 3 case and accepts a starting point of 7 years imprisonment is appropriate. I agree with Ms. Macomber. The degree of provocation in this case was only moderate. I adopt a starting point at the lowest end of category 3 reflecting the steps taken by Mr. Kaufusi to assist the deceased in pressuring his wounds and taking him to hospital which distinguishes this case from others I have considered.

[30] A starting point of 7 years is also consistent with the case law. For instance, in Hafoka there was less provocation and the offender initiated the attack and carried the knife that inflicted the lethal wound. In that case Cato J adopted a starting point of 8 years imprisonment. A lower starting point is justified in this case. On the other hand, in Tu’itavake there was more significant provocation and the Court of Appeal imposed a sentence of 5 year imprisonment. I adopt a starting point of 7 years imprisonment.

[31] In terms of mitigating factors relevant to Mr. Kaufusi, he is entitled to some credit for his previous record and that he is genuinely and deeply remorseful and that he was fully co-operative with the Police. For these factors I discount his sentence by 9 months. In addition Mr. Kaufusi and his family have made peace with the deceased’s widow and her family and in Tongan custom have provided gifts. I discount the sentence by a further 6 months to reflect these matters. In the result the sentence is one of 5 years and 9 months imprisonment.

[32] It is accepted that it is appropriate to suspend some portion of the sentence (R v Mo’unga [1998] Tonga LR 154). A suspended sentence is warranted as I believe Mr. Kaufusi’s rehabilitation prospects are very good. He is also remorseful and has a supportive partner and family. Looking at the authorities and maintaining consistency with them I consider it appropriate to suspend the last 2 years of his sentence subject to conditions.

Result

[33] On the one count of manslaughter Mr. Kaufusi is convicted and the sentence that I impose is 5 years and 9 months imprisonment. The sentence is backdated to the date Mr. Kaufusi was first held in custody, which I understand was 5 February 2018.

[34] I suspend the final two years of his sentence on the following conditions:

(a) He is not to commit any offences punishable by imprisonment for the period of his suspension;

(b) He is placed on probation for the period of his suspension to live where directed by his Probation Officer;

(c) He is not to use alcohol or drugs during the period of his suspension; and

(d) He is to undergo and successfully complete an anger management course and a course on drugs and alcohol abuse with an appropriate agency under the direction of his Probation Officer within 12 months of his release.

[35] Mr. Kaufusi is warned that should be fail to comply with any of these conditions during his suspension he may be required to serve out the balance of his sentence.

O.G. Paulsen

NUKU’ALOFA: 21 January 2019 LORD CHIEF JUSTICE