R v Tupou [2022] TOSC 16; CR 111 of 2021 (11 April 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

CR 111 of 2021

REX

-v-

‘ALAKI FONUA TUPOU

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC (by AVL in court 1)
Appearances: Mrs T. Kafa-Vainikolo for the Prosecution (by AVL)

Mr P. Tatafu for the Defendant (in Vava'u)

Date: 11 April 2022

On 4 October 2021, the Defendant was arraigned and pleaded not guilty to one count of causing serious bodily harm. He elected trial by judge alone. The trial of the proceeding was listed to commence today on an estimate of three days. Upon his re-arraignment today, the accused changed his plea to guilty.

The Complainant is Sailone Laloni, a 40 year old male of Feletoa. The Defendant was, at the relevant time, 54 years of age, from Leimatu’a.

On or about 28 November 2020, the Complainant was watching a rugby game between Pangaimotu and Feletoa at Kelana. The Defendant was also a spectator at the game. During the match, the Defendant and Complainant got into a verbal argument and the Complainant made his way towards the Defendant. The Crown alleges that the Complainant did not reach the Defendant and turned around to leave. The Defendant walked towards the Complainant and punched his mouth and the Complainant fell down. The Complainant was taken to the hospital where he was found to have a swollen lower lip, a laceration to the mid-lower lip and five missing teeth with active bleeding. An x-ray showed that all five teeth were completely removed.

When the Defendant was later arrested, he co-operated with police and admitted to the offending. The Defendant does not have any previous convictions.

In its indicative sentencing submission, the Prosecution submitted that:

(a) an appropriate starting point is two to two and a half years’ imprisonment;
(b) six months’ deduction for an early guilty plea;
(c) an additional four months’ deduction for his previous good record;
(d) resulting in a sentencing range of one year and two months to one year and eight months imprisonment; and
(e) partial suspension.

2. Mr Tatafu submitted that the Defendant is married with five children and that he has no independent source of income but lives only off crops produced from his plantation. He is his family’s only income earner.
3. The Defendant’s version of the events leading up to the offending differed in one material respect from that alleged by the Crown. According to the Defendant, the incident was initiated by the Complainant first running towards the Defendant to tackle him but the Complainant was stopped by others before he reached the Defendant. The Defendant said he was frightened by the approach. He also considered the Complainant may have been mentally unstable, something which today the Crown accepts. There was no suggestion of any ongoing threat being posed by the Complainant but nonetheless the Defendant went to him and punched him once to the face and then returned to his residence.
4. When he found the next day that the Complainant had been taken to the hospital, the Defendant went to the Complainant and apologised. They have since reconciled. So much so that Mr Tatafu said that the Complainant and the Defendant went to the Magistrates Court at Vava’u to ask for the case to be dismissed. They were told by the Magistrate to go to the police. They spoke to the Chief of Police in Vava’u and asked him to strike out the case. Self-evidently, that did not happen and the Prosecution continued with this case.
5. Mr Tatafu submits that any period of imprisonment should be fully suspended and that the Defendant should be placed on probation.
6. The maximum penalty for causing serious bodily harm is five years imprisonment.
7. Having regard to the seriousness of the offending and the circumstances in which it occurred, I consider an appropriate starting point to be two years imprisonment. On account of the Defendant’s late guilty plea and no previous convictions, I reduce that starting point by six months resulting in a sentence of 18 months’ imprisonment.
8. Having regard to the considerations for suspension set out by the Court of Appeal in the R v Mo’unga [1998] Tonga LR 154, I consider that by reason of the Defendant’s age, his lack of previous convictions, his demonstrated remorse including that he and the Complainant have reconciled and that there was some degree of provocation, initially at least, that it is appropriate to fully suspend the sentence on conditions. I record, as has been stated repeatedly by this Court and the Court of Appeal,^[1] the ‘breadwinner plea’, as it is known, cannot carry much, if any, weight and will rarely, on its own, be a reason for suspension.
9. Accordingly, the Defendant is convicted of causing serious bodily harm and is sentenced to 18 months’ imprisonment.
10. The sentence is to be fully suspended for a period of two years on the following conditions, namely, that during the period of suspension, the Defendant is to:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within the next 48 hours;
    • (d) complete an anger management course as directed by his probation officer; and
    • (e) perform 40 hours of community service as directed by his probation officer.^[2]

NUKU’ALOFA	M. H. Whitten QC
11 April 2022	LORD CHIEF JUSTICE

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^[1] Rex v Vake [2012] TOCA 7; and for a recent discussion in this Court, see e.g. R v Wolfgramm [2020] TOSC 78 at [47] to [49].
^[2] I had considered ordering compensation to be paid by the Defendant to the Complainant, but given the Defendant’s meagre financial circumstances, that would not be appropriate. Hence, community service was ordered instead.