R v Vakaahi [2022] TOSC 101; CR 113 of 2022 (6 December 2022)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CR 113 of 2022

REX
-v-
RYAN VAKAAHI

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr F. Samani for the Prosecution
Defendant in person
Date: 6 December 2022

The charges

1. On 25 October 2022, the Defendant pleaded guilty to:
   • (a) causing serious bodily harm, contrary to ss 107(1), (2)(c) and (4) of the Criminal Offences Act; and
   • (b) possession of an unlicensed firearm contrary to ss 4(1) and (2)(b) of the Arms and Ammunition Act.

The offending

2. On the morning of 2 February 2022, the Complainant, ‘Asaeli Teulilo, said that he went to the Defendant’s house at ‘Anana to collect his leaf blower. The Defendant told him that he had lent it to a friend and invited ‘Asaeli to go with him to his friend’s house to get it. ‘Asaeli told the Defendant to go and get the leaf blower himself. An argument ensued during which ‘Asaeli assaulted the Defendant and then returned to his home.
3. That afternoon, the Defendant drove to ‘Asaeli’s house and parked on the side of the road. ‘Asaeli walked over to where the vehicle was parked. The Defendant complained about the assault earlier that day. ‘Asaeli told the Defendant that he had caused the events of that morning. The Defendant then produced a .22 rifle, shot the Complainant in his left thigh and drove off.
4. ‘Asaeli tried to chase after the Defendant but could not catch him. He then lodged a complaint with police and was referred to Vaiola Hospital. When he was examined, ‘Asaeli was found to be hemodynamically stable and had no fracture. The entry wound was approximately 1cm by 1cm but the tract was more than 4cm deep. While the bullet was not visible, x-rays showed that it was deep in the muscle. Medical staff determined that there was no need to remove the bullet at that time and so the wound was dressed and ‘Asaeli was given antibiotics.
5. The Defendant was arrested later that day. He cooperated with police and admitted to the offending.

Previous convictions

6. The Defendant has previous convictions in the Magistrates Court between 2018 and 2022 for theft, common assault, physical domestic violence and careless driving.^[1] On each occasion, he was fined with a short term of imprisonment in default.

Crown’s submissions

7. The Crown submits the following as aggravating features of the offending:
   • (a) use of a firearm;
   • (b) for which the Defendant had no licence;
   • (c) the effect of the offending on the Complainant; and
   • (d) the Defendant’s previous convictions for violence.
8. The Crown submits the following as mitigating features:
   • (a) some level of provocation from the altercation earlier that day; and
   • (b) the Defendant’s early guilty plea.
9. The Crown relies on the following comparable sentences:
   • (a) Kaluseti Holani (52/2022) – The Defendant pleaded guilty to a number of counts including possession of an unlicensed firearm (count 1) and causing serious bodily harm (counts 6 and 7). The Defendant fired three shots in the direction of the victims, one of which struck one victim in his left elbow and another shot struck another victim in his left knee. On count 1, a starting point of 18 months was set, and reduced to 12 months for mitigation. On counts 6 and 7, a starting point of 4 years was set and reduced to 32 months. Twelve months from count 1 and count 6 were added to count 7, resulting in a total sentence of 56 months or 4 years and 8 months imprisonment. The final 20 months of the aggregate sentence was suspended on conditions.
   • (b) Tu’a Tavake & Sosefo Langi Kautai (CR 102/2015 and 103/2015) – Kautai was convicted after trial of causing serious bodily harm having shot two victims with his .22 rifle after accusing them of stealing his tapa bark. For the first victim, a starting point of 4 ½ years’ imprisonment was set, reduced by 18 months for mitigation, resulting in a sentence of 3 years’ imprisonment and $1,500 compensation. For the second victim, a starting point of 4 years imprisonment was set, reduced by 18 months, resulting in a sentence of 30 months and $1,500 compensation. The two sentences were ordered to be served consecutively with the final two years of the sentence were suspended, on conditions.
   • (c) Viliami Taipaleti (CR 104/2013) – The Defendant pleaded guilty to one count of causing serious bodily harm and possession of an arm and ammunition without a licence. He had caused a commotion whilst intoxicated and got into an argument with the complainant. He went to his house and returned with a rifle and shot the complainant in his left shoulder. A starting point of 4 years’ imprisonment for count 1 was set, reduced by 18 months, resulting in a sentence of 2 ½ years imprisonment. He was sentenced to 6 months’ imprisonment on counts 2 and 3, to be served concurrently with count 1. The final 16 months of count 1 was suspended on conditions.
   • (d) Kefu Tuila (CR 146/2011) – The Defendant pleaded guilty to one count of housebreaking in which he had entered a house whilst drunk and had kissed a sleeping woman. She woke up and confronted him and he ran out. He had told her he was her husband. In the second incident, he had sought revenge for an earlier incident of provocation when he had been beaten up. He had obtained a bolt action rifle and shot the complainant in the arm. There was a wound but no serious harm. He was sentenced, relevantly, to 3 years’ imprisonment for the bodily harm and 1 year imprisonment for possession of the firearm and ammunition.
10. Here, the Crown departed from its indicative sentencing submissions because it was not aware until recently that the Defendant had previous convictions for assault and domestic violence. Therefore, it submits the following sentencing formulation:
    • (a) the head sentence is count 1;
    • (b) count 1 - a starting point of 4 years imprisonment;
    • (c) count 2 – a starting point of 2 years imprisonment;
    • (d) for the early guilty pleas:
      • (i) count 1 be reduced by 6 months resulting in a sentence of 3 ½ years; and
      • (ii) count 2 be reduced by 6 months resulting in 18 months imprisonment;
    • (e) both sentences to be served concurrently; and
    • (f) partial suspension due to the Defendant’s cooperation with the authorities.
11. The Crown further submits, upon advice from the Magistrates Court, that:
    • (a) the Defendant has failed to pay the fines imposed for his previous convictions;
    • (b) a bench warrant has been issued for him to serve the default terms of imprisonment for the fines; and
    • (c) this Court should add the aggregate term of 6 weeks imprisonment to the present sentence in answer for the unpaid fines.

Victim impact

12. The Crown’s submissions included a report on the impact of the offending on the Complainant.
13. ‘Asieli stated that the bullet is still in his thigh and he continues to experience some pain in his knee, as if it is dislocated. He has undergone further x-rays, the results of which are as yet unknown.
14. Apart from the physical pain, ‘Asieli also complained that he has been ‘affected by lies that the Defendant was spreading about him’ selling methamphetamines, which had been published in the media and which was said to have caused the Defendant to shoot him. ‘Asieli maintains that he only went to the Defendant’s house on the day in question to retrieve his leaf blower, which he said the Defendant had stolen. According to ‘Asieli, this ‘false information’ has caused problems for him feeling unwanted in his own community, at home and in prison (discussed further below), where he has had to defend himself because of the allegation.
15. Also, according to ‘Asieli, the Defendant has not yet apologized.

Presentence report

16. The Defendant is 29 years old and the eldest of four children. As a baby, he was customarily adopted by his paternal grandmother with whom he enjoyed a secure and loving upbringing. When she passed away in 2006, he returned to his parents. That change of home environment affected him emotionally. As a result, he neglected his schoolwork, dropped out at Form 3 and started cohabiting with friends who had a negative effect on him.
17. The Defendant has been self-employed working with his father at their mechanical repair shop. He is married with two young children and is the breadwinner for his family.
18. When interviewed by the Probation Officer, the Defendant admitted to the offending and took full responsibility for his actions. However, his version of the events leading to the offending included the following. ‘Asieli had earlier given him drugs to sell. He failed to sell the drugs because he feared he would be caught. On the day in question, he was drinking alcohol in the front yard of his family’s residence. ‘Asieli drove to the residence, got out of his vehicle with a piece of timber and hit the Defendant on the head with it, causing him to fall to the ground. As ‘Asieli continued to hit the Defendant with the timber, his mother tried to intervene but ‘Asieli pushed her away. When the Defendant’s father and siblings intervened, ‘Asieli fled. His family tried to get him to go to the hospital, but the Defendant was so infuriated, especially because ‘Asieli pushed his mother, he got his rifle and went straight to ‘Asieli’s house where the offending occurred.
19. The Probation Officer also interviewed the Defendant’s wife and mother. The wife said that she was shocked when the Defendant returned to their place on the day with injuries to his head. His mother corroborated his version and had photos of his injuries.
20. The Defendant admitted to having a problem with drug and alcohol abuse. However, he is said to have not used since his release on remand. He has also avoided his negative peers. He has joined the Catholic church and is striving to better himself. His wife has seen positive changes in him and confirmed that he no longer drinks alcohol or takes drugs and is very attentive to his bible study.
21. The Defendant expressed remorse. He hoped to apologize to ‘Asieli but had not been able to date due to ‘Asieli being sent to prison. The Probation Officer expressed concern for the Defendant’s safety in prison from possible further attack by ‘Asieli.
22. The Probation Officer opined that the Defendant is at low risk of reoffending due to his ‘guilty plea, genuine remorse and recovery from substance abuse.’ However, that risk could increase if the Defendant were to relapse into substance abuse and associating with negative peers. Therefore, the Probation Officer recommended partial suspension on conditions including abstention and courses on life skills, anger management and alcohol and drugs awareness.

Starting points

23. The maximum statutory penalty for each of the subject offences is 5 years imprisonment.^[2]

24. In Hu’ahulu v Police [1994] Tonga LR 93, Ward LCJ stated 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. The likelihood of going to prison becomes a virtual certainty ... when a weapon is used.”

25. The somewhat extraordinary circumstances and divergence in the versions of what occurred leading to this offending cannot overshadow the Court’s repeated stance that:^[3]

“self-help and retributive action of this kind, ... involving violence, vigilante action and the use of firearms is denounced as incompatible with civilized conduct. No citizen has the right, no matter what he conceives may be the seriousness of crimes committed against him, to take the law into his own hands and punish others without due process and trial. ...”

26. Having regard to the seriousness of the offending, the comparable sentences and principles referred to above, the importance of imposing sentences which adequately reflect the community’s denunciation for this type of violence and the need for deterrence, I set the following starting points:
    • (a) count 1 - causing serious bodily harm – 4 years imprisonment;
    • (b) count 2 – possession of an unlicensed firearm (used to shoot the victim) – 2 years imprisonment.

Mitigation

27. The Defendant does not have an unblemished record. It is also one which includes recent convictions for violence.
28. However, for his early guilty plea, the starting points shall be reduced by approximately one sixth to the following sentences:
    • (a) count 1 – 40 months (3 years and 4 months) imprisonment;
    • (b) count 2 – 20 months (1 year and 8 months) imprisonment.
29. The sentence for count 2 is to be served concurrently with the sentence for count 1.
30. I also consider it appropriate to order that the default terms for the Defendant’s Magistrates Court fines be served concurrently with the sentence for count 1. Given the relative magnitude of the present sentence and that this offending is the latest in what appears to have been a period of escalating violence, I doubt any more would be achieved or warranted in adding further to this sentence.

Suspension

31. By application of the considerations in Mo’unga [1998] Tonga LR 154, the Defendant qualifies for some suspension of his sentence. He is still relatively young. While he does not have a good previous record, this is his first sentence in the Supreme Court. He cooperated with the police and pleaded guilty at the earliest opportunity.
32. Further, and unlike the Crown’s characterisation (“some”), I consider there to be a significant level of provocation here. While it can never be a legal defence to an assault, the circumstances here, and only for the purposes of considering suspension, do constitute substantial diminution in culpability. It ought be apparent, that in coming to that view, I have preferred the Defendant’s version, which was against interest, to that of the victim. The suggestion that this shooting occurred over a leaf blower is, in my view, ludicrous. I have no doubt the initial altercation was fuelled by a disagreement about drugs. I am also fortified in that view by the fact that:
    • (a) in March 2021, ‘Asieli was sentenced for drug related offending to 14 months imprisonment with the final 6 months suspended on conditions;^[4] and
    • (b) in May 2022, the Court of Appeal allowed an appeal by the Attorney General against a sentence by Niu J in which he imposed a fully suspended sentence on ‘Asieli for other drug related offending. The Court of Appeal substituted an effective sentence of 2 ½ years imprisonment with the final 8 months suspended on conditions, which he is currently serving.^[5]
33. I also take into account the evident injuries inflicted on the Defendant and the natural affront occasioned by ‘Asieli pushing his mother.
34. Little weight can be attached to the breadwinner plea for the reasons discussed in decisions such as R v Motulalo [2000] Tonga LR 311 at 314, Rex v Vake [2012] TOCA 7 and more recently in Police v De Feng Mo [2022] TOSC 81 at [36].
35. In light of the positive steps taken by the Defendant to date, the above considerations, balanced by the need when determining suspension to ensure sufficient deterrence in the result, I consider it appropriate to order that the final 20 months of the sentence be suspended on the conditions set out below.

Result

36. The Defendant is convicted of:
    • (a) causing serious bodily harm and is sentenced to 40 months imprisonment;
    • (b) possession of an unlicensed firearm and is sentenced to 20 months imprisonment.
37. The sentences are to be served concurrently.
38. Further, the default terms of imprisonment for the Defendant’s Magistrates Court convictions and fines are also to be served concurrently with the instant sentence.
39. The final 20 months of the head sentence are 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:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) attend the probation office within 48 hours of his release from prison and thereafter as directed by his probation officer;
    • (d) abstain from alcohol (illicit drugs already being included in (a)); and
    • (e) (if not already undertaken during his incarceration) complete rehabilitation courses in life skills, drugs and alcohol awareness and anger management as directed by his probation officer.
40. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison term.
41. Subject to compliance with those conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 20 months in prison.
42. Pursuant to s 37 of the Arms and Ammunition Act, the firearm the subject of this proceeding is forfeited to the Crown.

NUKU’ALOFA	M. H. Whitten KC
6 December 2022	LORD CHIEF JUSTICE

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^[1] CR 543/18, 409/18, 419/18 and TR 42/22.

^[2] Subsection 107(4)(a) of the Criminal Offences Act and ss 4(2)(b) of the Arms and Ammunition Act.
^[3] R v Holani [2022] TOSC 65 citing R v Kautai and Tavake (CR 102/2015 and 103/2015).
^[4] R v Teulilo [2021] TOSC 25.
^[5] Attorney General v Teulilo [2022] TOCA 4.