R v Fusikata [2021] TOSC 87; CR 313 of 2020 (4 June 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

CR 313 of 2020

REX

-v-

VUNGA FUSIKATA

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Ms ‘A. ‘Aholelei for the Prosecution

Mr S. Taione for the Defendant

Date: 4 June 2021

The charge

1. After a three-day trial in April 2021, the Defendant was found guilty of one count of causing grievous bodily harm, contrary to ss 106(1) and (2)(b) of the Criminal Offences Act.

The offending

2. On or about 15 February 2020, the Defendant spent most of the night drinking alcohol with the victim. At one point, the victim went to take a shower. While the victim was in the shower, the Defendant punched him to the left side of his head causing the victim to fall to the ground, bleeding from his left eye. The Defendant continued punching the victim on the ground. The two then wrestled and fought out across the back yard of the victim’s property. They were eventually separated by one of the victim’s neighbours. However, the Defendant returned and continued fighting with the victim, where they ended up on the sidewalk at the front of the property. During that second bout of fighting, the Defendant punched the victim’s left eye, which had already been injured by the ‘king hit’ in the shower, several times in quick succession. Again, the two were eventually separated, this time by another neighbour, and the Defendant walked off towards his home. When questioned by police, the Defendant said he hit the victim because the victim swore at him. The Defendant’s evidence at trial that the fight was started by the victim throwing a first punch (about which the Defendant did not tell the police), which missed, or that he only hit the victim in his eye out of self-defence because the victim was strangling the Defendant, was rejected. Upon medical examination and surgery, the victim was found to have suffered blunt force trauma causing compressed force to the front of the eyeball which ruptured it allowing dark blood material or ‘vitreous’ to escape from inside the eye. According to the medical evidence, the victim suffered total and permanent blindness which cannot be restored through any procedure, in Tonga, or elsewhere.

Crown’s submissions

3. The Crown submits the following as aggravating features:
   • (a) the Defendant’s actions were premeditated;
   • (b) the victim was defenceless when being punched by the Defendant;
   • (c) the victim’s left eye has been permanently blinded;
   • (d) the victim trusted the Defendant and did not think he would harm him when he invited him over to drink at his home;
   • (e) the victim has not moved on from what happened; his blindness reminds him of what the Defendant did to him;
   • (f) the Defendant is not remorseful; and
   • (g) he did not co-operate with the Police.
4. The Defendant has two previous convictions in the Magistrates Court in 2015 for housebreaking and theft and drunkenness, both of which were suspended on conditions.
5. The only mitigating factor is the Defendant’s apology to the victim weeks later after the incident occurred.
6. The Crown referred to the following comparable sentences:
   • (a) Toki (CR 106/09) – the Defendant was found guilty on bodily harm and two counts of common assault. He was sentenced to 2 years’ imprisonment for the bodily harm count.
   • (b) Sione Lolohea (CR 85/20) – the Defendant was drunk when he assaulted the victim while the latter was still sleeping by striking him on the face with a piece of timber which in blinded the victim. The Defendant pleaded guilty to grievous bodily harm. A starting point of 6 years was set, reduced by 2 years for mitigation, resulting in a final sentence of 4 years’ imprisonment, the final 12 months of which was suspended on conditions.
   • (c) Misa [1991] Tonga LR 69 – the Defendant was found guilty of causing grievous bodily harm where he struck the victim’s face with a torch causing injury to the victim’s eye. The Defendant was sentenced to 4 years’ imprisonment but only had to 6 months with the balance of his sentence being suspended for three years.
   • (d) Mumuhu Pou’uhila (CR 104/17) – the Defendant threw a brick at the victim’s face, resulting in permanent blindness in the victim’s right eye. The Defendant pleaded guilty to grievous bodily harm. Cato J considered that as the assault had resulted in serious permanent injury, a starting point of five years imprisonment was required to reflect the seriousness of the offending and deter the prisoner and others from acting in that way. He then discounted the starting point by one year for the early guilty plea and by an additional six months to reflect the Defendant’s young age, lack of previous convictions and remorse. Of the remaining sentence of 3 ½ years’ imprisonment, the final 18 months were suspended on conditions.
7. Here, the Crown submits the following sentence formulation:
   • (a) a starting point of 5 years’ imprisonment;
   • (b) no deduction as there are no mitigating factors; and
   • (c) the final 12 months suspended.

Defendant’s submissions

8. Mr Taione submitted, in summary, that:
   • (a) the Court should have regard to the fact that during his record of interview, the Defendant admitted:
     • (i) he ‘inflicted the punch to the victim’s eye’ (although he also said that it did not cause any injury to the Defendant’s eye); and
     • (ii) that he was intoxicated;
   • (b) a sentence of imprisonment is appropriate;
   • (c) the Crown’s submitted starting point is not disputed;
   • (d) suspension of the final 12 months is agreed. Conditions of suspension should include that the Defendant attend a drugs and alcohol awareness course;
   • (e) as the probation officer opined, the Defendant “has the capacity to change and grow if given the opportunity, support, goodwill and understanding...” particularly as the Defendant has a very young family;
   • (f) the Defendant has apologised to the victim; and
   • (g) the Defendant regrets his actions and is remorseful.

Presentence report

9. The Defendant is 34 years of age. He was raised by his father. He dropped out of school at age 16. In 2012, while living with a friend, he mingled with the wrong crowd. He is now married with two children, aged 2 and 1. He has been employed by Sunshine Rentals for the last 3 years, earning $150 per week, and is the sole provider for his family.
10. In relation to the offending, the probation officer reported that the Defendant:
    • (a) admitted to the offending;
    • (b) ‘is a kind of character that has aggressive behaviour’; and
    • (c) is remorseful.
11. The probation officer described the Defendant as being ‘no stranger to police and the courts’ and that he has ‘a long list of previous convictions records’. It is unclear whether that ‘long list’ corresponds with the previous convictions referred to in the Crown’s submissions above.

Starting point

12. The statutory maximum penalty for causing grievous bodily harm is 10 years’ imprisonment.
13. “Anyone who commits an offence of violence against another person runs a serious risk of immediate imprisonment. That will apply even to a first-time offender”: Hu’ahulu v Police [1994] Tonga LR 93, referred to in Toki, ibid.
14. In addition to the comparable sentences referred to by the Crown, I have had regard to:^[1]
    • (a) Soane Patita Toutai’olepo [2020] TOSC 3 – the Defendant who was 18 years of age at the time pleaded guilty to grievous bodily harm when he threw a large rock at the victim which struck him on the left side of his head rendering him unconscious with a compound depressed fracture to the left temporal bone of his skull which required surgery. A starting point of 4 years’ imprisonment was set, reduced by 2 years for mitigation with the final 12 months suspended on conditions.
    • (b) Siokatame Tupou [2019] TOCA 8 – the Defendant attacked two men with a machete. He pleaded guilty to, and was sentenced to 5 years’ imprisonment, for grievous bodily harm. The last 2 years of the total sentence was suspended.
    • (c) Vaingalu Pulotu (unreported, CR 159 of 2019, 7 February 2020) – the Defendant pleaded guilty to stabbing the victim with a knife during a fight causing grievous bodily harm. A starting point of 5 years was set and reduced by 18 months for mitigation. Of the resulting sentence of 3 ½ years’ imprisonment, the final 6 months were suspended.
    • (d) Vea (CR 126/2011) – the Defendant threw a torch at his eight-year-old son’s head causing a skull fracture. He had previous convictions for violence. He was sentenced to 5 years’ imprisonment with the last 12 months suspended.
    • (e) Moale Vi (CR 55/2017) – after a prior altercation with the victim, the accused returned the same day and struck the sleeping victim's head with a steel pipe causing a skull fracture. A starting point of 4 ½ years imprisonment was set, which was reduced by 18 months for mitigation. The last 12 months of the resulting sentence of three years imprisonment was suspended.
15. Having presided over the trial and “weighing up all of the objective and subjective circumstances, I can only conclude that the seriousness of the offence and all of the circumstances mean that a sentence of imprisonment is warranted”: Mohokoi [2008] TOLawRp 23.
16. Here, the permanent loss of sight in one of the victim’s eyes and the resultant diminution in his capacity and enjoyment of life weighs heavily in deciding the appropriate starting point.
17. Having regard to that, the seriousness of the offending, the statutory maximum and the range of comparable sentences considered above, I set a starting point of 5 years’ imprisonment.

Mitigation

18. The Crown’s submission that there are no mitigating features in favour of the Defendant is compelling. However, on account of his very belated (after verdict) admission of guilt and acceptance of responsibility, remorse and that this is his first conviction for violence, I will reduce the starting point by 6 months, resulting in a sentence of 4 ½ years’ imprisonment.

Suspension

19. Having regard to the considerations for suspension discussed in Mo’unga [1998] Tonga LR 154 at 157, the Defendant is not particularly young; he does not have a clean record, although as recorded above, this appears to be his first conviction for serious violence; and he did not co-operate with the authorities. Against that, the offending was clearly fuelled by excessive alcohol consumption. It was also, initially at least, a spur of the moment act of abject foolishness with terrible and lasting consequences, not only for the victim, but now also for the Defendant and his family.
20. Given the Defendant’s previous convictions in 2015 were the subject of suspended sentences, I am sceptical about his propensity for rehabilitation. However, since those last convictions, the Defendant has married and has two young children. It is a pity that their importance to him was not sufficient to have deterred him from the heavy drinking session and resulting outburst of serious violence on the night in question in this case. Nonetheless, while I cannot place much weight on the ‘breadwinner plea’,^[2] I accept that the Defendant’s young family may provide some hope that he will take the opportunity for rehabilitation offered by a partially suspended sentence. It is also clear that the Defendant has a problem with alcohol, for which, he will be assisted by the supervision, support and education provided by appropriate conditions attaching to any suspension period.
21. In all the circumstances and having regard to the balance to be struck in arriving at a result which meets the various sentencing requirements or objectives, including deterrence, I consider it appropriate to suspend the last 18 months of the sentence, on conditions as set out below.
22. In the result, subject to compliance with those conditions, and any remissions granted while in prison, the Defendant will be required to serve 3 years in prison.

Result

23. The Defendant is convicted of causing grievous bodily harm and is sentenced to 4 ½ years’ imprisonment.
24. The final 18 months of the sentence are to be suspended, for a period of 2 years from the Defendant’s release from prison, on condition that during the said suspension period, the Defendant is to:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within 48 hours of his release from prison; and
    • (d) complete an alcohol and drugs awareness course with the Salvation Army.
25. Failure to comply with the above conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.

NUKU’ALOFA	M. H. Whitten QC
4 June 2021	LORD CHIEF JUSTICE

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^[1] As referred to in R v Uasi [2021] TOSC 66, R v Helu [2021] TOSC 26 and R v Toutai'olepo [2020] TOSC 3.

^[2] For the reasons explained, most recently, in R v Soane [2021] TOSC 42 at [26], referring to R v Wolfgramm [2020] TOSC 78 at [46] to [49].