R v Fakaanga [2022] TOSC 33; CR 172 of 2021 (6 May 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

CR 172 of 2021

REX

-v-

KAUMAVAE FAKAANGA

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Ms H. Aleamotu’a for the Prosecution

The Defendant in person

Date: 6 May 2022

The charge

1. On 19 October 2021, the Defendant pleaded not guilty to one count of causing grievous bodily harm, contrary to s 106(1), (2)(b) of the Criminal Offences Act.
2. On 15 March 2022, after the Crown had closed its case at his trial, the Defendant changed his plea to guilty.

The offending

3. On or about 7 May 2021, the Complainant, Sosefo Tu’akoi, was drinking kava at the Church of Tonga hall at Tokomololo with others. The Defendant was also there drinking alcohol with others. Later in the evening, those who had been drinking alcohol with the Defendant left. The Defendant remained behind whilst the kava drinking continued. After a while, three young men joined the kava session. One of them asked the Defendant for a drink of his beer. The Defendant became angry and started challenging others to fight. Sosefo intervened and sat the Defendant beside him, telling him to calm down. However, the Defendant ran outside and said that he would come back with a knife.
4. Sosefo had some experience of the Defendant’s violence. He therefore expected the Defendant to return with a knife as he had threatened. So Sosefo grabbed a baseball bat which was behind the door of the hall.
5. About 30 minutes later, the Defendant returned and ran into the hall with a machete. When the Defendant saw Sosefo with the bat, he moved back and started swearing. Sosefo stood up and told the Defendant to go away. The Defendant continued to swear. Sosefo walked outside to where the Defendant was on the verandah. He told the Defendant to stop swearing. The Defendant kept swearing and moved out in front of the verandah. Sosefo kept telling him to go away. The Defendant kept swearing. Sosefo then threw the baseball bat at the Defendant from a distance of five or six metres to try and make him go away. The light was poor, so Sosefo could not see the Defendant well. He did not know if the bat hit the Defendant. The Defendant then disappeared.
6. Sosefo then turned back to go into the hall. As he passed a chair near the door on the verandah, he heard someone scream: ‘Don’t Mavae’. Sosefo looked back and saw the Defendant swinging the machete down onto his head. Sosefo raised his left hand to shield himself. The machete struck his elbow. He moved back. The Defendant also moved back and screamed: ‘I’m going to beat the shit out of you’. A minute or so later, the Defendant attacked again. Sosefo tried to hold the Defendant to prevent further injury, but the Defendant struck towards Sosefo’s head again. Again, Sosefo raised his left hand to shield himself. The second blow with the machete severed three of Sosefo’s fingers on his left hand. A third struck his head. Vaka came out and started punching the Defendant. As Sosefo bent down to hold the Defendant, someone pulled him up and told him to stand still because his arm was injured. After they were pulled apart, the Defendant ran off. Vaka and Sosefo’s son found the Defendant on the other side of the property
7. Sosefo was taken to hospital with lacerations to his left arm and scalp, broken bones and nerve damage. The palm of his hand later became infected. As a result of his injuries, Sosefo required surgery during which his left hand had to be amputated. He was hospitalised for about two months and had to attend clinic appointments during a third.
8. When he was arrested by police, the Defendant admitted to the offending but stated that ‘he had blacked out from drinking.’

Crown’s submissions

9. The Crown submits the following as aggravating features of the offending:
   • (a) the attack was premeditated;
   • (b) the use of a machete;
   • (c) the Defendant has previous convictions including:
     • (i) in 2013, he was sentenced in the Magistrates Court to a total of nine months imprisonment for housebreaking and theft; and
     • (ii) later that year, he was sentenced in this Court to three years imprisonment for causing bodily harm with the last year suspended on conditions. That offending also involved alcohol and the premeditated and retributive use of a machete. The Defendant also changed his plea there on the first day of his trial;
   • (d) the Defendant has not apologized to the Complainant and has not been forgiven;
   • (e) the Defendant was intoxicated;
   • (f) the loss of the Complainant’s hand;
   • (g) the indefinite trauma to the Complainant who continues to suffer physically and mentally;
   • (h) the Complainant was hospitalized for 2 to 3 months which caused financial hardship;
   • (i) the Complainant is no longer able to undertake his previous employment and is thus unable to earn the same income he did prior to being injured;
   • (j) the offending has also affected the Complainant’s family, as he is now reliant on his wife to do things he used to do himself; and
   • (k) the Defendant’s original not guilty plea necessitated the Complainant having to give evidence and relive the whole incident again prior to the Defendant’s belated change of plea.
10. There are no mitigating factors.
11. The Crown referred to the following comparable sentences:
    • (a) Hu’ahulu v Police [1994] Tonga LR 93, where Ward LCJ stated:

“... 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.”

(b) Siokatame Tupou v R [2019] TOCA 8 – the Defendant attacked two men with a machete. He pleaded guilty to grievous bodily harm and causing serious bodily harm. He was sentenced to 5 years’ imprisonment for the grievous bodily harm and 3 years for causing serious bodily harm with 1 year to be served cumulatively on the first count. The total sentence was 6 years’ imprisonment, with the last 2 years suspended.
(c) R v Mafi [2014] TOSC 13 – the Defendant got into an argument with and attacked the victim with a machete causing grievous bodily harm. Cato J imposed a starting point of 6½ years imprisonment, which would have been higher, he said, had there been any serious permanent injury. That was discounted by 2 years for mitigation and a further 18 months was deducted on account of the Defendant’s advanced age and acute bad health.

12. The Defendant has previous convictions. Between 2003 and 2007, he was convicted of alcohol and drug related offences. More recently and relevantly:
    • (a) in 2013, he was sentenced in the Magistrates Court to 6 months imprisonment for housebreaking plus 3 months for theft; and
    • (a) on 13 June 2013, he was convicted in this Court of causing bodily harm. That offending also involved the use of a machete. The Defendant also initially pleaded not guilty, only to change his plea at the start of his trial. Cato J sentenced him to 3 years imprisonment cumulative upon the above term. The final year was suspended on conditions which included requiring the Defendant to abstain from consuming alcohol for that period and to attend an alcohol and drug course at the Salvation Army.
13. Here, the Crown proposes the following sentence formulation:
    • (a) a starting point of 8 years’ imprisonment due to the permanent injury, the circumstances of the offending, and aggravating features;
    • (b) no discount for mitigation; and
    • (c) no suspension.

Victim impact statement

14. The Complainant is 44 years of age and resides in Tokomololo. He is employed by Pacific Timber Hardware (“PTH”). Prior to the offending, he was a driver for PTH carrying out large deliveries. During his hospitalisation and rehabilitation, he did not receive any income. Although he is still employed by PTH, he is now only able to provide assistance by stacking shelves.
15. The Complainant is still affected physically mentally and emotionally by the attack. He struggles on a daily basis and is frustrated because he is not used to having only one hand. He can no longer do the things he used to do and now relies heavily on his wife and son for assistance. He used to go to the bush to grow crops but is no longer able to do so. He now only visits his plantation by driving by and looking at it.
16. He has not seen or talked with the Defendant since the offending. He wants to forget what happened, but so far, he has been unable to do so.

Presentence report

17. The Defendant is the youngest of five children. Growing up, his family’s main source of income came from his father’s plantation and his mother’s handicrafts. Despite not having much growing up, he was happy and he and his family’s daily needs were met. As the youngest, he was always spoiled and given the best. He was educated to form 5 before leaving school due to peer pressure. His father passed away in 2010, which his mother said had a ‘negative impact’ on him. He started hanging out with the wrong crowd and getting into trouble.
18. The Defendant’s life apparently changed for the better when he married and settled down. He and his wife have two children aged six and five. His wife described him as ‘a good husband’ and a ‘responsible father.’
19. In relation to the offending, the Defendant stated that he initially pleaded not guilty because he believed that he was innocent. However, he later pleaded guilty because he was ‘confused’. He said he was not being able to recall what happened due to being ‘really intoxicated’ and having ‘blacked out a few times’. He also told the probation officer that he asked the Complainant for forgiveness and that his family visited the Complainant while he was in the hospital.
20. The probation officer opined that the Defendant is not a ‘high risk to his family or the community’ and that rehabilitation may help ‘pave the right path for him.’ For those reasons, the probation officer recommended a fully suspended sentence on conditions.

Starting point

21. The maximum statutory penalty for causing grievous bodily harm is 10 years’ imprisonment.
22. The approach by Ward LCJ in Hu’ahulu v Police, ibid, as referred to in the Crown’s submissions above, was endorsed in Siokatame Tupou v R [2019] TOCA 8.^[1] In upholding a sentence of 6 years imprisonment where a machete had been used, the Court of Appeal stated:

“... Offenders inflicting serious injury with a weapon must ordinarily expect to serve a term of imprisonment. That is particularly so given the prevalence and availability of machetes.”

23. Accordingly, the fact that the offending here involved serious violence, the Defendant is not a first-time offender, and a machete was used, means that imprisonment is a ‘virtual certainty’.
24. In addition to those referred to by the Crown, I have also had regard to the recent decisions in Pouono [2021] TOSC 106, Fusikata [2021] TOSC 87 and Toki [2021] TOSC 55, in which the following comparable sentences were considered:
    • (a) 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.
    • (b) 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.
    • (c) 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.
    • (d) Mumuhu Pou’uhila (CR 104/17) – the Defendant threw a brick at the victim’s face, permanently blinding his right eye. The Defendant pleaded guilty to grievous bodily harm. As the assault resulted in serious permanent injury, Cato J set a starting point of five years imprisonment to reflect the seriousness of the offending and to provide deterrence. That was then reduced by one year for the Defendant’s early guilty plea and by a further six months to reflect the Defendant’s young age, lack of previous convictions and remorse. Of the remaining sentence of 3½ years’ imprisonment, the final 18 months were suspended on conditions.
    • (e) Tupou (AC 16/2018) - the Defendant had been drinking alcohol with the victims. They later got into an argument and the Defendant went home and returned with a machete and attacked the victims causing them multiple lacerations and fractures. The Court of Appeal agreed with the starting point set of 6 ½ years imprisonment and did not disturb the final sentence of 6 years’ imprisonment with the last 2 years suspended on conditions.
    • (f) Aisake (CR 19/2019) - the Defendant’s wife left him and lived with another man. When the wife went to visit her parents in another village, the Defendant went there and refused to leave. He went into and hid in a room there with a machete he had brought with him. The police were called to take him away. When a policeman opened the door of the room, the Defendant struck the officer with the machete resulting in a 13 cm depressed skull fracture which required an emergency craniotomy and elevation of depressed skull fragments. The victim was left with a mild neurological deficit of his left upper limb. The Defendant pleaded guilty to grievous bodily harm. Paulsen LCJ set a starting point of 7 ½ years imprisonment which was then reduced by 18 months for mitigation, resulting in a sentence of 6 years’ imprisonment. Due to the Defendant’s previous convictions for armed robbery, involving the use of a firearm, no part of the sentence was suspended.
    • (g) Sione Lolohea (CR 85/20) – the Defendant was drunk when he assaulted the sleeping victim by striking him on the face with a piece of timber which 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.
    • (h) Soane Patita Toutai’olepo [2020] TOSC 3 – the Defendant, who was 18 years of age at the time pleaded guilty to grievous bodily harm, 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.
    • (i) 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.
25. In the ordinary case, the loss of a hand is at least as serious as the loss of sight in one eye as considered in Pou’uhila and Lolohea. However, where, as here, the victim’s former employment required the use of both hands, and as a result of this offending, he has suffered a significant loss in his amenity of life, earning capacity and ability to perform farming work, I consider the seriousness of the offending in this case to be greater than Pou’uhila and Lolohea and more in line with the offending in Tupou and Aisake.
26. Therefore, having regard to the:
    • (a) statutory maximum penalty;
    • (b) seriousness of the offending;
    • (c) premeditation involved;
    • (d) repeated use of a machete;
    • (e) very significant injuries inflicted on the Complainant including the loss of his hand;
    • (f) requirement to serve the sentencing objectives for offending of this kind of punishment, denunciation, deterrence and protection of the community; and
    • (g) principles and comparable sentences referred to above,

I consider the appropriate starting point to be 7½ years’ imprisonment.

Mitigation

27. I am ambivalent about any discount for the Defendant’s very late guilty plea for two reasons.
28. Firstly, the change of plea only came after the close of the Prosecution case in which the evidence against the Defendant was overwhelming. The only issue raised during that evidence was whether there was some element of provocation by the Complainant when he threw the bat at the Defendant, which I will address further below.
29. Secondly, the Defendant engaged a similar tactic in his last trial.
30. Notwithstanding, on the assumption that by his change of plea, the Defendant belatedly acknowledged responsibility for his actions, and taking into account that he was not legally represented, I will reduce the above starting point by six months, resulting in a sentence of 7 years imprisonment.

Suspension

31. At first blush, the principles in Mo’unga [1998] Tonga LR 154 at 157 do not favour any suspension of the sentence:
    • (a) the Defendant is not young;
    • (b) he does not have a previous good record;
    • (c) on the contrary, not only does he have a relatively recent conviction for violence, also involving a machete, and for which he was sentenced to a term of imprisonment, the final third of that term was suspended on conditions which included measures to rehabilitate the Defendant in respect of what was obviously a serious problem with alcohol abuse. The circumstances leading to the instant offending clearly indicate that the Defendant continues to have serious issues with alcohol abuse. In other words, he did not take the opportunity offered by his last partly suspended sentence to rehabilitate himself; or if he did for that year, he has not maintained it and has in fact relapsed thereafter resulting in the instant offending;
    • (d) that suggests that the Defendant may be incapable of responding to the deterrence intended by any further suspended sentence;
    • (e) even though he initially cooperated with police and admitting to the offending when first arrested, he later pleaded not guilty and caused a trial to proceed to the close of the Crown case; and
    • (f) I do not consider that there was any provocation by the victim’s use of the baseball bat which might weigh in favour of suspension. In circumstances where the Defendant declared he was going to get a knife, which he did, the Complainant was legally entitled to use the bat, as a reasonable and proportionate measure, to defend himself and the others at the kava session against the Defendant with his machete and overt threats of violence with it.
32. Against those adverse indicators, there is one factor which does militate in favour of some suspension. Since his last conviction in 2013, the Defendant has married and now has two young children. Even though he let them down terribly by behaving as he did on the night in question, the Defendant’s family presents some cause for hope that he will take the opportunity of a partly suspended sentence to rehabilitate for good.
33. After weighing all those considerations in the balance, I consider it appropriate to order that the final year of the sentence be suspended on the conditions specified below.

Result

34. The Defendant is convicted of causing grievous bodily harm and is sentenced to seven years imprisonment.
35. The final year of the sentence is to be suspended for a period of two years on the following conditions, namely that during the said 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 48 hours of his release from prison;
    • (d) abstain from consuming alcohol or illicit drugs; and
    • (e) undertake such rehabilitative courses on life skills and alcohol and drugs awareness as may be directed by his probation officer.
36. Any breach of those conditions is likely to result in the Defendant being required to serve the balance of his term of imprisonment.
37. Subject to compliance with the above conditions and any remissions available pursuant to the Prisons Act, the Defendant will be required to serve a maximum of six years in prison.

NUKU’ALOFA	M. H. Whitten QC
6 May 2022	LORD CHIEF JUSTICE

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^[1] Referred to in R v Finau [2020] TOSC 8.