Rex v Finau [2020] TOSC 8; CR 3 of 2020 (28 February 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 3 of 2020
REX -v- TEVITA MAHELOFA FINAU

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Mr. T. ‘Aho for the Crown Accused in person
Date of sentence:	28 February 2020

Introduction

1. On 21 January 2020, the accused pleaded guilty to one count of causing serious bodily harm contrary to s.107 of the Criminal Offences Act which carries a maximum penalty of imprisonment for five years.

Facts

2. The defendant is 61 years of age. The victim, Paula Mahe, is 63 years of age, and is the defendant's brother.
3. On or about 30 August 2019, around 7 PM, Paula was at his residence at Fangaloto. The defendant arrived and asked Paula for alcohol. Paula gave him a leftover bottle of alcohol and the defendant left. Paula then went to the store and returned to find the defendant back at his residence, intoxicated. The defendant called out to Paula to join him in drinking and Paula did so. Whilst they were drinking, the defendant began talking about a soldier who’ had a licence to kill and could take apart weapons’. Paula told the defendant not to talk about soldiers because he was ‘kicked out’ of the Army. The defendant became angry and threatened to hit Paula with a machete.
4. The defendant then picked up a machete and hit Paula. Paula used his left hand to shield himself. Paula jumped up and ran to the residence of his older brother, Sione Finau, for refuge. The defendant pursued Paula and hit him again with the machete on the back of his head.
5. When Paula reached Sione’s residence, he was rushed to hospital. Upon arrival at the hospital, Paula was admitted to the surgical ward.

Victim impact report

6. As a result of the attack, Paula lost his ring finger and half his ‘small finger’ (which I assume means the fifth digit or ‘pinky’ finger). He was hospitalised for five days before being discharged. He then remained at home for two weeks before returning to work. He visited the hospital on a regular basis over three months for further treatment. His daughter remitted money to him from overseas for the two weeks he was off work.
7. In relation to the circumstances leading to the assault, Paula reported that he teased the defendant while they were drinking and belittled him by telling him to stop talking about the military and that the defendant did not have what it took to be a soldier. The intoxicated defendant became angry and the assault ensued. Paula stated he was surprised when his brother assaulted him because he was only joking when taunting him.
8. Paula says that he has fully recovered and has returned to work with no further adverse effects. The only impact was the pain he endured while the injury was healing.
9. He reported that the defendant has come to him on numerous occasions and apologised. Paula has forgiven the defendant. He stated that he has asked the defendant to stop drinking alcohol and attend church with him. He says the defendant has quit drinking alcohol since the assault, has promised never to do such a thing again and is remorseful. Paula feels safe around, and is not scared of, the defendant. The victim and other family members within their compound are all on good terms with the defendant, and life is back to normal.

Crown submissions

10. The Crown submits the following as circumstances of aggravation:
    • (a) the defendant was intoxicated when he committed the offence;
    • (b) the victim's injuries were serious;
    • (c) the defendant struck the victim twice with the machete;
    • (d) the defendant pursued the victim and hit him on the back of his head;
    • (e) the victim was hospitalised and took about three months for his wounds to heal;
    • (f) the defendant appears to be short tempered; and
    • (g) the defendant's actions were unprovoked.
11. The Crown submits the following factors in mitigation:
    • (a) the defendant is a first-time offender;
    • (b) the defendant is in his 60s;
    • (c) the defendant has apologised to the victim who has forgiven him; and
    • (d) the victim and the defendant are living on the same compound and their lives are back to what they were before the incident.
12. The Crown submits a number of comparable sentences, the salient aspects of which may be summarised as follows:
    • (a) Fuatapu Puamau, CR 5/18 - male defendant punched a female security guard causing her to lose consciousness and suffer damage to her teeth - 21 months imprisonment with the final nine months suspended on conditions;
    • (b) Ma’afu Makasini, CR 2/16 – during an argument fuelled by intoxication, the defendant hit the victim from behind with a rock to his head, rendering him unconscious and then kicked him to the mouth - 18 months imprisonment fully suspended for two years, probation for 18 months, alcohol and anger management courses;
    • (c) Taniela Pekipaki, CR 172/18 - the defendant hit the victim's forehead with an object (submissions incomplete in relation to "a piece...") - two years and three months imprisonment with the final 12 months suspended;
    • (d) Andy Lavelua, CR 105/18 - defendant punched the victim's face 10 times and slapped her face several times resulting in a swollen eye and bruises - one year and nine months imprisonment with the final nine months suspended;
    • (e) Maikolo Sinoti, CR 46/2018 - defendant punch an intoxicated (and therefore defenceless) female victim causing a fractured jaw and removal of a tooth - three years imprisonment without suspension;
    • (f) Viliami Fa’aui, CR 70/17 - defendant struck the victim with his fist, an empty alcohol bottle and a bucket of paint causing injuries to the victim's eye and mouth - two years imprisonment with the final 12 months suspended.
13. The Crown submits that in this case:
    • (a) a starting point of two years and six months imprisonment is appropriate;
    • (b) 12 months should be deducted for the defendant’s early guilty plea and other mitigating factors; and
    • (c) the remaining 18 months should be fully suspended for two years on conditions including probation, alcohol and drug prohibition, courses on alcohol and drug abuse and anger management and 40 hours community service.

No presentence report

14. On 24 February 2020, the Chief Probation Officer filed a Savingram advising that a presentence report has not been able to be prepared because the defendant has not appeared at the probation office and Probation Services do not know his whereabouts nor do they have a contact number for him.

References

15. Two references or testimonials have been filed in support of the defendant.
16. The first is a letter from his brother, the victim, who has confirmed his forgiveness for the assault inflicted by the defendant and his continued affection for him.
17. The second is from ‘Aminiasi Makaafi, Bishop of the Fangaloto ward of the Church of Latter Day Saints. He describes the defendant as a member of the church, and a dedicated and hard-working member of the ward. The Bishop confirms the defendant’s remorse and asks the court to show leniency in his sentence. He describes the defendant’s standard of living as poor with him relying only on crops for his livelihood.

Starting point

18. In my view, the comparative sentences submitted by the Crown do not accurately reflect the seriousness of the offending here. While two involved the use of objects, none involved the use of a machete.
19. In Lopeti [2019] TOCA 5, the defendant was sentenced to 10 years imprisonment for armed robbery and 2½ years concurrently for causing serious bodily harm where a machete was used to inflict serious injuries during the course of the robbery. The Court of Appeal considered the Judge was right to take into account that the offending was a deliberate and planned theft involving the use of a lethal weapon to inflict a serious wound on an innocent young man.
20. In Siokatame Tupou [2019] TOCA 8, the defendant was sentenced to an effective term of 6 years imprisonment with the last 2 years suspended after pleading guilty to attacking two men with a machete causing grievous bodily harm to one of them and serious injury to the other. Alcohol had been involved leading to an argument and a fight between the defendant and one of the victims. The victim apologized and the defendant accepted the apology. However, he then went to his home, obtained a machete, and returned to the place where the victims and others were still drinking. He then carried out a sustained attack on the first victim, attempting to strike him on five occasions with the machete and then once more after he fell. The defendant then chased the other victim and hit him repeatedly about the head with the machete after he fell. When he got up and tried to run away, the defendant chased him, caught him and continued hitting him with the machete. The attack only stopped when the defendant’s younger brother took the machete away from him. The less serious injuries, constituting the serious bodily harm charge, included multiple lacerations to that victim’s left arm, forearm and hand, which all healed with no long term complications.
21. In his sentencing remarks, Cato J observed that a machete is an inherently dangerous weapon, particularly in the hands of a drunken offender. The Court of Appeal agreed and noted, relevantly, that the starting point of four years for the serious bodily harm charge was within range for this offending given the use of a weapon, the seriousness of the injuries inflicted and the sustained nature of the attack. In also declining to interfere with the period of suspension, the Court of appeal stated:

“... Offenders inflicting serious injury with a weapon must ordinarily expect to serve a term of imprisonment. That is particularly so given the prevalence and availability of machetes.”

22. In Halahone Taliai and Sosefo Malimali Vea [2018] TOSC 56, the defendant, Vea, carried a hammer to a fight and used it to strike the head of the victim causing a laceration and some internal bleeding. Cato J considered the appropriate starting point to be three and half years. Even though the blow only caused the victim to fall to the ground with not much more than a laceration, he regarded the use of a weapon to inflict a wound to the head as serious offending. He discounted the starting point by 15 months imprisonment by way of mitigation. Of the remaining sentence of two years and 3 months imprisonment, the final six months were suspended on conditions.
23. In the instant case, the factors which militate in favour of a higher starting point are the use of a machete, the lack of any relevant provocation, the seriousness of the injuries inflicted including the loss of one and a half fingers and a relatively sustained attack whereby, after the first assault, the defendant chased the victim and hit him with the machete to the back of the head. Factors which attenuate that higher starting point are the lack of any planned attack and catalyst of alcohol being a likely significant trigger instigating the attack.
24. On balance, taking into the account the above factors relevant to the offending and the applicable comparative sentences, I consider the appropriate starting point in this case is three and a half years imprisonment.

Mitigation

25. On account of the defendant’s:
    • (a) co-operation with police;
    • (b) early guilty plea;
    • (c) lack of any previous convictions over a period of adulthood exceeding forty years; and
    • (d) demonstrated remorse reflected in the complete forgiveness by the victim, his brother,

I discount the starting point by 18 months, leaving a sentence of two years imprisonment.

Suspension

26. On the question of whether to suspend any part of the operative sentence, the considerations outlined in Mo’unga v R [1998] Tonga LR 154 are almost entirely in favour of suspension:
    • (a) the testimonials of the defendant’s considerable improvement after quitting alcohol and attending church services and activities are good evidence that he is capable of responding to a deterrent;
    • (b) he is likely to take the opportunity offered by the sentence to continue to rehabilitate himself;
    • (c) whilst he is not young, at 61years of age, he has an unblemished record;
    • (d) that record strongly suggests that this offending was entirely out of character - a spur of the moment, drunken mistake;
    • (e) despite the gravity of the offence, there is some diminution of culpability through lack of premeditation and the presence of some provocation (not in any exculpatory, but explanatory sense) in the form of the victim’s taunts precipitating the assault; and
    • (f) he co-operated with the authorities.
27. I add to those the fact that the defendant and victim, together with other close family members, have resumed normal living relations. Their forgiveness and support for the defendant is a powerful factor in determining the appropriate disposition of this matter. But for that, I would have considered it appropriate to only suspend a minor portion of the operative sentence. However, in the circumstances stated above, I consider that in this case, it is appropriate to suspend the whole sentence on conditions I will set out below.

Result

28. The defendant is convicted of the charge of causing serious bodily harm and sentenced to imprisonment for two years.
29. The said sentence will be fully suspended for two years on conditions that the defendant:
    • (a) not commit any offence punishable by imprisonment during the period of suspension;
    • (b) be placed on probation for the period of the suspension;
    • (c) reside as directed by his probation officer;
    • (d) abstain from consuming alcohol or drugs for the period of the suspension;
    • (e) undertake courses on alcohol and substance abuse and anger management as directed by his probation officer during the first year of his suspended sentence; and
    • (f) perform 40 hours community service as directed by his probation officer.
30. Any failure to carry out the terms of his suspension may mean that the defendant will be required to serve his sentence of imprisonment.

NUKU’ALOFA	M.H. Whitten QC
28 February 2020	LORD CHIEF JUSTICE