PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Tonga
You are here:  PacLII >> Databases >> Supreme Court of Tonga >> 2021 >> [2021] TOSC 97

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

R v Hafoka [2021] TOSC 97; CR 90 of 2021 (15 June 2021)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


CR 90 of 2021


REX

-v-

FALE’ONE SITIVENI HAFOKA


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mr J. Fifita for the Prosecution

Mr M. Latu for the Defendant

Date: 15 June 2021


The charge

  1. On 11 May 2021, the Defendant pleaded guilty to causing serious bodily harm, contrary to s 107(1), 2(b) and (4) of the Criminal Offences Act.

The offending

  1. On or about 28 November 2020, at Veitongo, the victim was at a Chinese shop asking customers for money to buy food for his soccer team when one of the soccer boys showed up crying. He said that he had been beaten up by drunk boys at Pahulu Hafoka’s residence. The victim then went with others to the residence to find out why the boy had been beaten up. When they arrived, the Defendant and two other boys were angry at the victim. The victim and the soccer boys then returned to the Chinese shop. The Defendant followed, approached the victim from behind and punched him in the face, causing him to fall down. The Defendant then punched the victim again while he was on the ground.
  2. The victim was taken to the hospital where, upon assessment, he was found to have suffered two fractured lower left premolars and a bilateral fracture of the left and right body of the mandible (i.e. cracked teeth and a broken jaw).
  3. On 3 December 2020, due to the severity of his injuries, the victim underwent surgery to have his teeth removed and his jaws aligned with wire. He was discharged from hospital three days later.
  4. On 17 January 2020, the Defendant was interviewed by police and admitted to the offending.

Crown’s submissions

  1. The Crown submits the following as aggravating features:
  2. The mitigating features are:
  3. The Crown referred to the following comparable sentences:
  4. Here, the Crown submits the following sentence formulation:

Victim impact report

  1. The victim, now 20 years of age, also lives in Veitongo. Due to the injuries he sustained, he was unable to eat solid food while in the hospital. He is missing two of his left molars and is unable to open his mouth widely. His teeth are still wired, and, to date, he remains unable to eat solid food.
  2. An apology was offered by the Defendant, supported by his parents, the town officer and a priest. The victim and his parents have not accepted the apology.

Defendant’s submissions

  1. Mr Mosese Latu submitted, in summary, that:

Presentence report

  1. The Defendant is 23 years of age. He is the youngest of six children. He was educated to form 6 at Tonga College and later dropped out. He works with his father at their family plantation. He was a part of the seasonal workers to Australia in 2019 and 2020. The money he earned was used for the construction of his new house. He is engaged to be married later this year. His mother describes him as a “good behaved boy” and it was not until he started mixing with the wrong people that he started getting into trouble and drinking alcohol.
  2. In relation to the offending, the probation officer reports that the Defendant has taken responsibility for his actions. The Defendant said that he was drunk and that the victim had challenged him to a fight but his uncle chased them away. After an hour, he left the drinking party and saw the victim at the Chinese shop. The Defendant was still very angry at him, which is why he came up from behind and punched the victim in the face. The Defendant denies that any further punches were thrown.
  3. Once again,[1] the Crown has submitted that the Defendant has no previous criminal convictions, which the Defendant repeated to the probation officer. However, the officer’s interrogation of the case management system revealed a number of previous convictions, including, the use of an alias. In 2016, the Defendant was convicted of housebreaking and theft and sentenced to 1 year and 18 months imprisonment, respectively, fully suspended for 3 years on conditions. In 2018, he was convicted twice for drunkenness and fined on each occasion. In respect of the second, a warrant was later issued for his imprisonment after he failed to pay the fine.
  4. Two letters of support were attached to the report. One was in English.
  5. The probation officer recorded that the Defendant is remorseful and recommended partial suspension on conditions.

Starting point

  1. The maximum statutory penalty for causing serious bodily harm is 5 years’ imprisonment.
  2. It has long been recognized that “... 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....”: R v Luka [2021] TOSC 46 at [18] citing Hu’ahulu v Police [1994] Tonga LR 93, per Ward LCJ.
  3. I do not accept the Defendant’s submission that he was provoked by the victim’s earlier challenge to a fight. Even though, as a legal defence, provocation in Tonga only applies to reducing culpable homicide to manslaughter,[2] for present purposes, one of the hallmarks of provocation is ‘a sudden and temporary loss of self-control’: R v Luka [2021] TOSC 46 at [21].[3] That could not reasonably be said to be the case in respect of any challenge laid down by the victim an hour and half before the subject assault. I regard the assault as an act of utter stupidity and cowardice which should attract greater deprecation than had the two engaged in a face to face, but nonetheless illegal, fight.
  4. Having regard to the seriousness of the offending, the injuries sustained by the victim and their ongoing impacts on his quality of life, that intoxication affecting self-control is an aggravating rather than mitigating factor,[4] the comparable sentences submitted, and the principles referred to above, I set a starting point of 2 years and 2 months’ (or 26 months) imprisonment.

Mitigation

  1. For the Defendant’s early guilty plea, I reduce the starting point by 6 months, resulting in a sentence of 20 months’ imprisonment.

Compensation

  1. Contrary to Mr Latu’s submission, the Crown did not in fact submit that the Defendant should be ordered to pay $2,000 in compensation. That figure was derived from the comparable sentence in Paea Sika. From the victim’s perspective, I agree with the submissions recommending an order for compensation as part of the overall sentence. However, in the absence of any evidence that the Defendant has the capacity to pay any particular amount of compensation, I cannot see how it would be appropriate to make such an order. Pursuant to s 25(3) of the Act, failure by the Defendant to pay any compensation ordered would only lead to him serving a further term of imprisonment up to 3 months. In future, Defendants and counsel acting ought ensure that appropriate evidence is before the Court to support any such submission. Otherwise, it remains open to the victim to sue the Defendant for damages for assault and battery, should he wish to do so. In the meantime, the Court is required to determine an appropriate sentence for this criminal act.

Suspension

  1. In this case, on balance, the considerations in Mo’unga [1998] Tonga LR 154, at 157, weigh in favour of some suspension. The Defendant is still relatively young, he co-operated with police and pleaded guilty at the earliest opportunity. However, the Defendant does not have an unblemished record. It is also one which indicates problems with alcohol. Further, for the reasons stated above, I do not interpret the sequence and timing of the relevant events as revealing any diminution in culpability by way of provocation, or otherwise.
  2. It should also be borne in mind that if, in any given case, all the considerations referred to in Mo’unga are present, it does not automatically follow that a sentence must or should be fully suspended. The considerations referred to in Mo’unga are not the only factors. “Also relevant may be the seriousness of the offending, the need for an effective deterrence, the effect on the complainant, and the personal circumstances of the offender or those dependent on him or her. There may well be others. But although these are factors that may be taken into account in considering whether, and if so for how long, to suspend part or all of a sentence, the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender. If it is not, or if for any reason, rehabilitation is not relevant to the sentence to be imposed, suspension of any part of the sentence is unlikely to be appropriate": R v Motulalo [2000] Tonga LR 311; Vake [2012] TOCA 7, referring to Misinale [1999] TOCA 12.
  3. Further, for the reasons stated in those decisions, I place only little weight on the fact that the Defendant is engaged to be married or that he plans to “start a new family”. That he and his fiancée decided to marry at a time when he was facing sentencing for the instant charge speaks of either naïveté or a calculated, but misguided, attempt to diminish his sentence. As the Court of Appeal stated in the abovementioned decisions, allied considerations such as the ‘breadwinner plea’ are not, and are rarely likely ever to be, on their own, a proper reason for suspending a sentence.
  4. I have also given careful consideration to the Defendant’s professed remorse against the fact that, notwithstanding Mr Latu’s interpretation, the victim and his family have clearly not forgiven the Defendant for what he has done. Such is the seriousness of the damage done by the ‘coward’s punch’, which continues to affect the victim, and with no apparent resolution or full recovery indicated any time soon.
  5. Ultimately, in my view, perhaps the most important consideration on this issue is that in 2016, the Defendant was afforded the opportunity of a prison sentence being suspended for three years. Self-evidently, by his offending in 2018 and, more recently, the instant offending, he has not demonstrated the rehabilitation objective intended by that sentence.
  6. Taking all those matters into account, I am of the view that it is appropriate to suspend the final 10 months of the sentence for a period of two years, on conditions as set out below.
  7. In the result, subject to compliance with those conditions and any remissions within prison, the Defendant will be required to serve 10 months in prison.

Result

  1. The Defendant is convicted of causing serious bodily harm and is sentenced to 20 months’ imprisonment.
  2. The final 10 months of the sentence is to be suspended for a period of 2 years from the date of the Defendant’s release from prison, on condition that during the period of suspension, the Defendant is to:
  3. 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 of imprisonment.



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

[1] R v Paletu'a [2021] TOSC 49 at [10].
[2] Section 88 to 90 of the Criminal Offences Act.
[3] Citing R v Whitfield (1976) 63 Cr App R 39 at 42 (CA).
[4] Tu'i'ile'ila v Rex [2007] TOCA 5 at [10], citing Hu’ahulu v Police, ibid, at 95.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/to/cases/TOSC/2021/97.html