R v Talau [2021] TOSC 127; CR 31 of 2021 (8 June 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 31 of 2021

REX

-v-

‘ALIPATE TALAU

BEFORE HON. JUSTICE NIU

Counsel : Halaevalu Aleamotu’a for the Crown

The accused for himself

Plea : Guilty on 16 March 2021

Report : by Probation Officer, ‘Ilaisaane Fifita, 13 April 2021.

Submissions : by Crown filed on 27 April 2021

By Accused in Court on 27 April 2021

Sentencing : 8 June 2021

SENTENCING

Offence

[1] ‘Alipate Talau, you committed serious causing bodily harm to Latu Kivalu by punching and causing a cut to the right front side of his head and a fracture to his upper right front tooth at Kolofo’ou on 26 September 2020. You pleaded guilty to having committed that offence in this Court on 16 March 2021.

Report

[2] The Probation Officer, Mrs Fifita, has interviewed you and your mother and also the town officer of Malapo where you reside. Mrs Fifita says that your mother told her that you were born illegitimately to another man, and then she married her husband and had 9 children by him.

[3] It appears that your mother and her sister and their mother were living in Ha’alalo, and that you were born while your mother was living there and that after she was married she lived with her husband at Malapo and had their 9 children while living there.

[4] It also appears that you were sometimes living with your mother and her family at Malapo and sometimes with your grandmother at Ha’alalo and even up to now. And no doubt as you were getting older you did not live at either place but with friends elsewhere.

[5] Consequently, you had little if any discipline at all and you left school at class 6 at primary level, and then later on, as you told me, you went to the technical school at Tupou College in 2015.

[6] You told Mrs Fifita that you always joined the “fightings” (ke) that occurred between the Tonga College boys and the Liahona High School boys because, although you did not attend Liahona High School, you are a member of the church of Jesus Christ of Latter Day Saints which owns and operates that school.

[7] Your mother told Mrs Fifita that you are uncontrollable when you are angry or when you are drunk. She even says that she knows that you are the one who starts the fighting that occur between the boys of the two schools on most occasions.

[8] She, your mother, says that you mostly live with other boys in their villages and that she tired of coming to ask you to return home.

[9] The town officer of Malapo has told Mrs Fifita that you are a very bad person and that you have been banned to come to Malapo, because you cause disturbances and fightings there.

[10] Mrs Fifita says that you are repentant for the offence you have committed. She recommends that part of your prison sentence be suspended on condition that you complete the Salvation Army course on drugs and alcohol and that you do not drink any alcohol or use any drug, and to live where directed.

Previous convictions

[11] According to the police records, you have 5 previous convictions and you told me in Court that they were true. I asked you about them and you told me as follows:

(a) 2015. you said you were in Tech at Tupou College and that you joined in the fight between the Tonga College boys and the Liahona boys. You were sentenced to serve 40 hours community service.

(b) 2018. you were drunk at Talamahu market and you were fined $200.

(c) April 2019. you were drunk at Talamahu market and you were fined $300.

(d) August 2019. you were drunk again, at Ha’alalo, and you were fined $300.

(e) 18 November 2020. you were in a fight between Tonga College boys and Liahona High School boys and you were sentenced to 3 months imprisonment (with effect from date of remand in custody, 13 November 2020).

[12] It appears that your present offence had occurred on 26 September 2020 before your offence no.5 above, that is, the one committed on or about 13 November 2020, the day on which you were arrested and remanded in custody.

Crown submissions

[13] Ms Aleamotu’a for the Crown refers to two cases:

(a) R v Lavelua (CR 105/2018) where that accused aged 22, while drunk, punched and slapped a 9 year old boy repeatedly causing swelling and bruising to his face and right eye and the loss of one tooth. He cooperated and pleaded guilty to serious causing bodily harm. He was sentenced to 1 year 9 months imprisonment with the last 9 months being suspended.

(b) Hu’ahulu & Anor v Police [1994] Tonga LR93 where 2 men attacked another man and injured him with a broken bottle thrusted into his face and with a stone also struck at his face. The one who used the stone was sentenced to 9 months imprisonment, and the one who used the broken bottle was sentenced to 12 months imprisonment.

[14] She submits that the starting point of your sentence is 30 months imprisonment but that in view of your cooperation and guilty plea, 15 months be deducted leaving your sentence at 15 months imprisonment. As to suspension of that sentence or part of it, she says that you may be entitled to suspension of part of that sentence.

Your submissions

[15] Your told me in Court that you apologise for what you have done to Latu Kivalu and that this was the first and last and that you would appear in this Court again. You told me that ‘Atele boys (Tonga College) had beaten you up to 2 weeks previously at the bus stop, and that there were 5 of them and that one of them was Latu Kivalu, and that was why you went and punched him on this day at the same bus stop.

[16] You told me that you help your uncle with the crops in the plantation for your consumption and also for sale and even shipment.

[17] You said that you did not know that you were banned from going to Malapo village but you agreed that you were very troublesome at that village. You also said that what your mother had told the probation officer was true, that is, about you being troublesome. You agreed that you do have a problem with alcohol and that you would agree with an order that you do not drink alcohol.

[18] You told me that, despite your repeated offending and being troublesome, you would change and be a good person from now on.

Consideration

[19] Firstly, all your previous offences have been breaches of the Order in Public Places Act and the maximum sentence for those offences is a fine of up to $250 or imprisonment of up to 6 months in default of payment. The offence you have committed in the present case is an offence under the Criminal Offences Act and it is called serious causing bodily harm and it is punishable with imprisonment of up to 5 years, because it is indeed a serious offence to cause injury by punching someone. That happened in the case of Poafa who punched and fractured another boy’s jaw in 2 places and in the case of Sima who punched and loosened the front teeth of another man.

[20] In your case you punched Latu Kivalu and split his scalp and punched him again and broke his right front tooth. That is serious causing bodily harm, and the law requires a much heavier sentence because it provides for imprisonment sentence of up to 5 years. In the case of Lavelua referred to by the Crown, that accused was sentenced to 1 year 9 months imprisonment for punching and causing the loss of a tooth of another man. He was ordered to serve the 1 year and then have the 9 months suspended.

[21] Secondly, I consider that you have been very much involved in the fightings between the Tonga College boys and Liahona High School boys since 2015. You were no doubt the leader in the fightings or the instigator of the fightings because you were sentenced to serve 40 hours community service for your very first offence at the age of 16, and that it was not an imprisonment sentence instead as it should have been because you were in the technical school in Tupou College at the time. You told me that you left that school because your mother told you to because it was a waste of money no doubt because you were more interested in leading the Liahona boys against the ‘Atele boys instead.

[22] And you did continue to lead the Liahona boys in the ensuing years even up to last year when you were convicted and sentenced to 3 months imprisonment for it, after you had already committed the present offence.

[23] You have indeed caused a lot of problem in the country, and not just at Malapo, as the town officer there says, because the fightings between the ‘Atele boys and the Liahona boys were regular occurrence almost every Friday afternoon. It even led to banning of the rugby game competition between the schools because of the fightings. The police force, had to be called out and were required to stop and arrest the offenders in those fightings. The fightings became a national concern for the parents of the school children in all the schools.

[24] Your offence in the present case is not just the punching and causing of an injury to Latu Kivalu. Your offence is a bigger offence than that. It is the offence of causing the fighting between the two schools. Latu Kivalu was just standing there doing nothing to you. You just went up and punched him and when he fell down you walked away. I do not believe and I do not accept that he and other ‘Atele boys had beaten you up two weeks before then like you told me. I believe that you had punched him simply because he was an ‘Atele boy and that you wanted to keep the fighting between ‘Atele and Liahona continuing. Otherwise, you would have gone and complained to the police to arrest Latu Kivalu instead but you didn’t.

[25] I therefore consider that your offence is much more serious and it deserves a much heavier sentence than those imposed in the cases that counsel for the Crown and I have referred to.

[26] I consider that this is a case where an imprisonment sentence is necessary, not only to punish you for the offence you have committed but more importantly to protect the society from you.

[27] I consider that a sentence of 4 years imprisonment is warranted but in view of your guilty plea and your frank admissions of your involvement in the disturbances and being troublesome in the community, I deduct 6 months. I do not consider that you are entitled to suspension of any part of that sentence because:

(a) although you are young, you have 5 previous convictions in the last 5 years;

(b) you are not likely to take the opportunity of suspension to rehabilitate yourself to be law abiding because your record speaks for itself; you have not changed at all;

(c) you were not provoked or coerced to commit this offence at all; and

(d) you have not cooperated with the authorities to stop the school fightings at all; you have in fact continued to cause it as you did in the present case.

Sentence

[28] Accordingly, I sentence you to 3 years 6 months imprisonment.

Niu J

Nuku’alofa: 8 June 2021 J U D G E