PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Tonga
You are here:  PacLII >> Databases >> Supreme Court of Tonga >> 2022 >> [2022] TOSC 5

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

R v Pese [2022] TOSC 5; CR 125 of 2021 (21 January 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


CR 125 of 2021


REX

-v-

TULAPA SAMOA PESE


SENTENCING REMARKS


BEFORE: ACTING LORD CHIEF JUSTICE AFEAKI

Appearances: Ms H. Aleamotu’a for the Prosecution

The Defendant in person

Date: 21 January 2022


The Charges

  1. On 9 July 2021, the Defendant pleaded not guilty to one count of causing serious bodily harm, contrary to s 107(1), (2)(c) and (4) of the Criminal Offences Act and a trial date was set.
  2. On 2 December 2021, the day of his trial, the Defendant changed his plea to guilty.

The Offending

  1. On or about 20 March 2021, the victim, 22-year-old Lapaha resident Ringo Halafihi was drinking with a few others at a cemetery beside a road in Lapaha, Tongatapu. While they were drinking, three others joined them and the victim asked a person named ‘Uli why they had beaten up his father at some earlier time. Before the victim finished asking his question, ‘Uli punched him and ran off. A fight broke out and the others fled except for the victim and another man called Mani.
  2. I have only received scant details of this fight; how much damage if any was done to whom by whom, but what is established is that there was a fight, blows were exchanged, some participants left and then later on, ‘Uli came back with the Defendant. Violence led to further violence.
  3. The police summary of facts then states that the victim and Mani stayed on and resumed drinking.
  4. Later on, a car pulled up to the cemetery with the Defendant and ‘Uli inside. The victim and Mani went over to talk to them while they sat in the car. They then drove off in the car and the victim and Mani walked back to the cemetery.
  5. While they were still there, the Defendant and ‘Uli returned, this time by foot. They walked up towards the victim and the Defendant struck the victim on his forehead with the blunt side of a helepelu (machete).
  6. At the same time ‘Uli was holding a knife and advanced with it towards Mani, who ran away.
  7. The Defendant hit the victim again on the back of the head with the helepelu where he suffered a 10 centimetre (approximately 4 inches) long cut.
  8. To have hit the victim in the back of his head means that the Defendant slashed at the victim while he was turned away from him and was most likely trying to escape from the man hitting him with the helepelu.
  9. The victim managed to get away and ran to his house.
  10. Due to bleeding from his head wound, the victim was rushed to the hospital and the doctor who treated him later reported that he had sustained a laceration to the occipital part of his scalp which Dr Tu’ungafasi reported as having 10cm x 5cm dimensions. This is a wide, deep cut. A piece of his skull had been chipped right off by the blow, although there was no fracture, which is probably sheer blessed luck, given the force needed to cut through the scalp and chip off a piece of his skull bone.
  11. The occipital bone is the bone which forming the back part of the base of the cranium, that part of the skull that encloses the brain. It is the part of the skull which encircles and links the brain to the spinal cord[1]. Notably the occipital lobe of the brain is that part which vision functions from. I am no physician but even cursory research shows the very high risk when force is applied to the brain.
  12. Obviously it is very dangerous to harm any part of the head and especially the brain and that is why violent attacks to the head with weapons are viewed very seriously by the Court. A primary function of the law is to keep people safe from violent attacks, especially with weapons.
  13. All intelligent adults know that it is quite possible to kill someone with a large metal weapon if you apply it to their head. It takes quite a degree of emotion to take that step of striking someone on the head at least twice with a helepelu.
  14. In this case I am only relieved that although the victim was badly injured and hospitalised for three or four days (he cannot remember precisely how long), that he was not blinded, crippled or killed.
  15. However, this small relief does not diminish the seriousness of the offence Mr Pese has plead guilty to.
  16. The narrative of events shows significant premeditation by the Defendant. Having come by car to the scene, he scoped the size, numbers and condition of the people at the drinking set, then drove away. Later he and another returned with weapons and used them to attack. This shows the Defendant carefully calculated and planned his attack. It was not a ‘spur of the moment’ attack.
  17. The way he carried out the attack is also chilling in that the Defendant and his colleague concealed their weapons when they returned and once they were within striking distance, in effect ambushed the victim and his friend striking them, causing immediate shock, pain and fear and effectively not leaving them any chance to defend themselves.
  18. This is not only brutal; it is a cowardly behaviour to attack an unarmed person in this way.
  19. Following reporting of the attack, the police arrested the Defendant and he chose to remain silent when they questioned him.

The Crown’s Submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits that the only mitigating factor is the Defendant’s guilty plea, albeit late, which saved the victim from having to give evidence in court and reliving what happened to him.
  3. The Crown referred to the following comparable sentences:
  4. The Defendant has previous convictions. They are as follows:
Offence
Court
Case Number
Sentence
Theft and taking things according to Tongan custom
Magistrate
CR 48/2014
1-year imprisonment and compensation of $4000.00, if not paid – serve an extra year.
Theft
Magistrate
CR 84/2014
Compensation of $600 to the complainant in one month, in lieu, 3-months imprisonment.
Domestic Violence
Magistrate
CR 35/2021
Conditions required for the Defendant to follow as part of his sentence. Includes not to commit any domestic violence, that he does not approach the victim while intoxicated or using drugs, not to possess any firearm and must surrender the weapon to the nearest Police station. [emphasis added because this indicates the Defendant’s possession of a firearm in a domestic violence conviction, which is very serious]

  1. Here, the Crown submits the following sentence formulation:

Victim Impact Report

  1. On 15 December 2021, some two weeks after the Defendant entered his guilty plea on the day of his trial, Crown counsel interviewed the victim and his father Mr Halafihi senior and prepared a report to the court which has been taken into consideration in this sentencing. The following information is a summary of the interview and report submitted.
  2. The victim is number five of ten children. All his older siblings are overseas while he remains here in Tonga with his younger siblings. He was educated to form 4 at Tupou College Toloa and later took technical courses at Takuilau College. He did not pursue further studies after that. He is unemployed but helps his father with diving and fishing, which they sell beside the road to earn money. They said they can earn about $300+ a day from this enterprise.
  3. The victim recalled having to stay in Vaiola Hospital for three or four days following the attack.
  4. The victim says his injury required the victim to take three to four months off work from helping his father provide for their family, because his injury took that time to properly heal. He said that during those times, his father only managed to earn a reduced income $80-$100 a day.
  5. According to the victim and his father, no formal traditional apology or any apology at all was ever offered by the Defendant. It was not until they appeared in Court on the trial date, that the Defendant approached the victim and asked him to “stand up in court and inform the judge that he has forgiven him”.

Presentence Report

  1. At his arraignment on 2 December 2021, the Defendant was directed to attend the probation office within the next 48 hours to arrange an interview for the preparation of his presentence report. The Probation Office advised that the December interview did not happen and this caused further delays. The Court ordered the Defendant and the Office to ensure an interview was conducted and a report filed with the Court on 10 January 2022. The probation officer recorded the following information.
  2. The Defendant is 38 years of age. He is the fourth of six children. He grew up in a stable and religious family. His wife describes him as a responsible husband but added that he is very short-tempered (“he gets angry very quickly”). He was educated only to the age of 16 before dropping out of school and starting bush labour work to earn income. He later stopped doing labour work and assisted his father at the family plantation. He is currently employed by Sione Maile Kata and is reported to be the main breadwinner for his family. Somewhat unhelpfully, the report does not advise whether or not he is the father of any children for whom he is responsible.
  3. I have considered the letters of support attached to the probation officer’s report, which were from the ‘Ofisa Kolo (Town Officer) of Lapaha, his family pastor of the Tonga Gospel Fellowship, the Salvation Army confirming his having had counselling for ADAC (which I understand to be short for Alcohol and Drug Addiction Course) and from his current employer in the Community Development Office for the Foreshore Project.
  4. In relation to the offending, the Defendant admitted to the probation officer that he agrees with the prosecution summary of facts and said that he was “frustrated” and having “issues with his wife at the time of the offence”. He explained that when he saw his nephew injured, he became angry and could not control his temper which was why he went and committed this serious offence.
  5. The probation officer describes the Defendant as a good citizen who is highly spoken of by his family, friends and villagers who were baffled that he had committed the offence because they say, it is unlike him.
  6. He reported that the Defendant is not a first-time offender but has shown genuine remorse and that “The accused had made an apology to the complainant and he and his family were highly accepted.”
  7. The Probation Officer recommends that the Court impose a sentence “befitting of a man who is a good citizen in society” and that he should attend an anger management course.

Analysis

  1. The victim, Mr Halafihi’s report contradicts the Defendant’s assertion in a material aspect.
  2. The Defendant says he is genuinely remorseful and that he had apologised to the victim and his family and further, that they accepted his apology.
  3. This is in sharp contrast to the information recorded by the Crown from the victim on 15 December 2021 during his interview with the Crown about how the attack had affected him and his family. His father was also present.
  4. In respect of the purported apology, in the interview of the victim and his father the report reads as follows:

“11. The Victim and his father both confirmed that the Accused has never apologised to them in any way.”

  1. The victim, Mr Halafihi added that “on the day this matter was set for trial”, 2 December 2021 at which the Defendant changed his plea to guilty:

“... the Accused approached him to stand up in Court and inform Your Honour that he has forgiven the Accused. However, there was never any apology made.”

  1. This information came as a surprise to me because the Defendant led me to believe that he was sorry, he had apologised to the victim and his family and that was the reason that they had forgiven him.
  2. The Crown’s sentencing submissions and victim report are in stark contrast to the Defendant’s statements.
  3. In the circumstances of these two very different versions about the existence of remorse or an apology, I find that I prefer the version of the victim and his father and do not accept the Defendant’s profession of remorse to be sincere.
  4. It appears that for the first time since chopping his victim on the head with his helepelu on 20 March 2021, just prior to the first day of trial, with the victim and prosecution witnesses gathering for Court, the Defendant became worried about the prospect of a long prison sentence, changed his mind about his not guilty plea, and in an effort to make himself look good for his sentencing, approached his victim and asked him to indicate to the Court that he had forgiven him because some sort of apology had been made.
  5. This means that the purported apology occurred nearly (9) months after he had attacked Mr Halafihi and put him in the hospital.
  6. It is one thing for the victim to say he has forgiven the assailant, but quite another to tell the Court ‘I have apologised to him’, when he has not.

Further Analysis After Questioning Defendant on 21 January 2022

  1. Following the above complicating factors, I considered it in the interests of justice to put to the Defendant the victim and his father’s contradictory statements. I did this in court this morning.
  2. I explained to the Defendant my understanding of his submission that he was remorseful for what he did, that he had apologised to the victim and his family, to which he answered affirmatively.
  3. I explained that the victim and his father had confirmed that he had not apologised to them and that as a matter of fairness I wanted to put this to him.
  4. I asked him when he had apologised, to which he answered, not long after the incident.
  5. I asked him if he had apologised to both the victim and the family, to which he affirmed he had apologised to both.
  6. I explained to the Defendant and to Crown counsel that this was serious, needed consideration and impacted upon my draft sentence decision.
  7. I explained that I was prepared to accept the veracity of Crown’s submission of the victim’s 15 December interview content and that I did not propose to put the victim or his family to any more time and trauma of returning to Court.
  8. It was also important to confront the Defendant with the victim and his father’s statements and ask him for his response.
  9. I adjourned the hearing until 12 noon to consider and complete this decision.

Analysis

  1. Having considered the different versions, I find the victim and his father’s version more credible than the Defendant’s. I believe them and not him.
  2. This is a very cynical approach intended to manipulate the Court’s perception of the Defendant. It is not welcome in a justice system which must protect its honest, innocent, non-violent, law-abiding citizens. Regardless of how sorry Mr Pese says he is now; it appears that he has been merely acting in a somewhat desperate self-preservation to avoid a heavier sentence.
  3. I find that his manipulative behaviour speaks much louder than his verbal expressions of fakatomala (remorse).
  4. Sincere remorse felt by a convicted person is usually a good indicator that they have insight into their offence, have some empathy for the impact on their victim and that they take full responsibility for it. Absence of remorse is sad and provides the Court another insight into the state of mind of the Defendant.
  5. These factors are important in considering the weight I give to the Defendant’s grounds he seeks through community references for mitigating his sentence.

Starting Point

  1. The maximum statutory penalty for causing serious bodily harm is 5 years’ imprisonment.
  2. 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.”

  1. The Court also observed in R v Finau [2020] TOSC 8:

“In Siokatame Tupou [2019] TOCA 8, the defendant was sentenced to an effective term of 6 years’ imprisonment with the last 2 years suspended after pleading guilty to attacking two men with a machete causing grievous bodily harm to one of them and serious injury to the other. Alcohol had been involved leading to an argument and a fight between the defendant and one of the victims. The victim apologized and the defendant accepted the apology. However, he then went to his home, obtained a machete, and returned to the place where the victims and others were still drinking. He then carried out a sustained attack on the first victim, attempting to strike him on five occasions with the machete and then once more after he fell. The defendant then chased the other victim and hit him repeatedly about the head with the machete after he fell. When he got up and tried to run away, the defendant chased him, caught him and continued hitting him with the machete. The attack only stopped when the defendant’s younger brother took the machete away from him. The less serious injuries, constituting the serious bodily harm charge, included multiple lacerations to that victim’s left arm, forearm and hand, which all healed with no long term complications. In his sentencing remarks, Cato J observed that a machete is an inherently dangerous weapon, particularly in the hands of a drunken offender. The Court of Appeal agreed and noted, relevantly, that the starting point of four years for the serious bodily harm charge was within range for this offending given the use of a weapon, the seriousness of the injuries inflicted and the sustained nature of the attack. In also declining to interfere with the period of suspension, 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.’”

  1. Further, as stated in R v Whyte [1987] 3 AII ER 416 (CA) at 418:

“A man who is attacked may defend himself, but may only do what is reasonably necessary to effect such a defence. Simply avoiding action may be enough if circumstances permit. What is reasonable will depend on the nature of the attack. If there is a relatively minor attack, it is not reasonable to use a degree of force which is wholly out of proportion to the demands of the situation. But if the moment is one of crisis for someone who is in imminent danger, it may be necessary to take instant action to avert that danger.”


"It is perfectly plain that on any view the use of an already prepared knife, the blade having been extended, in circumstances such as this, could not possibly be reasonable under any circumstances."

  1. Having regard to the seriousness of the offending, the Accused’s obvious premeditation and other aggravating features, the injury sustained by the victim, the comparable sentences submitted by the Crown, and the Court’s discretion, I consider the appropriate starting point to be 3 ½ years’ imprisonment.

Mitigation

  1. For the Defendant’s guilty plea, albeit late, I reduce the starting point by 6 months’ imprisonment, resulting in a sentence of 3 years’ imprisonment.

Suspension

  1. On the question of suspension, there are two primary matters to be addressed here. The first is the asserted apology made and forgiveness by the victim and his family. I find that in the circumstances of the diametrically opposed versions between the Crown’s report on their direct advice from their 15 December 2021 interview with the victim himself and what the Defendant stated in Court at his re-arraignment on 2 December 2021, I prefer the victim’s version. This impacts on sentence and whether or not there is a prospect of rehabilitative factoring.
  2. In respect of suspension, the principles in Mo’unga [1998] Tonga LR 154 at 157 do not weigh in favour of the Defendant. At 38 years of age, Mr Pese is not young. He did not cooperate with the police when first questioned. He has a history of violence and a lack of control of his anger. It appears that he has had counselling for alcohol problems in the past. In considering whether to suspend all or part of the sentence, I take into account his guilty plea, although late, the seriousness of the offending, the need for effective deterrence to provide safety to our communities, the effect on the victim, and the personal circumstances of the Defendant. I am therefore left with a degree of scepticism that the Defendant, in my view, is likely to take any opportunity offered by the Court by a suspended sentence to rehabilitate himself.
  3. Further, in relation to the information recorded by the Probation Officer of the Defendant being the sole breadwinner, it is important to note that the Courts have repeatedly explained as stated in R v Fekau [2021] TOSC 108: “that such a consideration attracts very little weight and is not, and is rarely likely ever to be, on its own, a proper reason for suspending a sentence. For a detailed discussion, see R v Wolfgramm [2020] TOSC 78 at [46] to [49]. In short, any suffering experienced by the Defendant’s family during his incarceration will be a direct result of his decision to commit ... crime ...”
  4. This may appear to be a stark result because the Courts do not lightly make a decision to remove a breadwinner from a family. However, the Court is duty-bound to balance all aspects of each particular case on its merits to do justice.
  5. Taking all those into consideration and for those reasons, I do not find it appropriate that any part of the Defendant’s sentence be suspended.
  6. By way of concluding this both specifically for Mr Pese, but also for the general public to consider, I make the following comments.

Fakatokanga ke tukua e fakapo’uli

[General Statement]

  1. ‘Oku ‘ikai taau mo e kakai lotu ‘o e fonua koeni ke tau ‘ita o to’o ha me’a tau o taa’i ha ‘ulu ‘o ha tokotaha, neongo e me’a na’e hoko ke fakatupu e ‘ita kiate ia.

[It is not becoming of faithful people of this nation that we become angry, take a deadly weapon and strike the head of another, regardless of what happened to make one angry.]

  1. ‘Oku ‘ikai ke totonu ke tau foki ki he taimi fakapo’uli ‘o e ono’aho ‘o fa’iteliha peheni.

[it is not right that we return to the dark ages of ancient history and behave disruptively like this.]

  1. Ko e me’a fakamamahi ‘aupito ki he kau fakamaau kotoa ke mau toutou sio meimei fakamahina kihe kau talavou mo matapule na’e puke he polisi he na’a nau fakapo’uli o taa’i ha taha ‘aki e helepelu.

[It is very painful for all judges that we regularly see almost monthly, youths and men arrested by the police because they had lost their temper and hit someone with a machete.]

  1. Pea ‘oku mau ongo’i ‘aupito ‘a e u lavea fakamanavahe mo fakatu’utamaki ‘oku fa’a hoko ki hotau kakai, ‘o hange ko e tu’usi e fo’i tuhu, pe ko e taa ‘o fasi e hui, tu’usi e nima, pe ko e taa’i e mui ‘ulu ‘o mafahi.

[We also solemnly note the horrifying and dangerous injuries which are being inflicted on our people, like cutting off fingers, strikes breaking bones, cutting off hands and striking the back of heads and nearly breaking the skull with this injury.]

  1. Ko e fakatokanga eni ki he faka’iloa mo e kau tangata kotoa pe o Tonga.

[This is a warning to the Defendant and all the people of Tonga.]

  1. ‘Oku tapu ‘aupito mo e ta’efakalao ke to’o ha helepelu o taa’i ‘aki ha tokotaha ‘i ha fa’ahinga ‘uhinga pe tatau aipe pe koho ‘ita pe ko ho’o lotomamahi. ‘Oku anga’imanu mo ta’e taau ke fai pehe ha tangata’i fonua o e fonua tui faka-Kalisitiane koeni.

[It is strictly forbidden and illegal to take a machete and hit someone just because you are angry or aggrieved. It is animalistic behaviour not becoming for a citizen of this Christian nation to behave like this.]

  1. Na’e langimama’o ‘a e Tama Tu’i ko Siaosi Tupou I ke tau mo’ui tau’ataina mo nonga ‘i he molumalu ‘o e Konisitutone.

[The vision of His Majesty King Siaosi Tupou I that we would live free, safe in the shelter of the Constitution.]

  1. Ko e tafa’aki e taha ‘o e tau’ataina ko ia, ko ‘e tau fatongia ke tau takitaha fakalelei’i ma’u pe hotau loto ‘o feinga ma’u pe ke tau fai totonu, pea ta’ofi atu mo e mo’ui fakapo’uli ‘i he kuonga maama ko eni kae ‘ako’i fakalelei e fanau mo e ngaahi makapuna ke nau tupu ‘o poto.

[The other side of that freedom is the duty for us all to properly nurture our own intentions, do right, cease acting in anger frenzy, so we may live well in an enlightened future and properly teach our children and grandchildren so that they may grow up wise.]

  1. ‘I he ngaahi makatu’unga koia, ko ha tokotaha pe te ne to’o ha helepelu o taa’i ‘aki ha taha, ‘oku ‘i ai leva ‘a e mafai ‘a e Fakamaau ke tu’utu’uni ke fakahu e tokotaha ko ia ki pilisone ke ngaue popula.

[It follows that for anyone who takes a machete and hits another, there is a discretion for judges to put that person in prison.]

Result: Sentence

  1. The Defendant is convicted of causing serious bodily harm to the victim and is sentenced to 3 years’ imprisonment.
  2. Upon his release, the Defendant will be placed on probation for 12 months after release and will report to his Probation Officer within 48 hours of release;
  3. After his release, the Defendant will undertake 40 hours of community service as directed by his Probation Officer.
  4. The Defendant will attend an anger management course as directed by his Probation Officer.



NUKU’ALOFA
Tu’inukutavake Barron Afeaki
21 January 2022
ACTING LORD CHIEF JUSTICE

[1] See: Encyclopaedia Britannica https://www.britannica.com/science/occipital for information and definition

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/to/cases/TOSC/2022/5.html