R v Naulumatua [2022] TOSC 55; CR 194 of 2021 (15 July 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

CR 194 of 2021

REX

-v-

‘OSAIASI NAULUMATUA

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mr T. ‘Aho for the Prosecution

Mr S. Tu'utafaiva for the Defendant

Date: 15 July 2022

The charge

1. Upon his arraignment on 11 January 2022, the Defendant pleaded not guilty to one count of causing serious bodily harm, contrary to ss 107(4)(a) of the Criminal Offences Act. On 31 May 2022, at the commencement of his trial, the Defendant changed his plea to guilty.

The offending

2. On the evening of 12 June 2021, the Defendant and the victim, Musa’ati Falase, were drinking with others at the Tali’eva Bar. When the bar closed, the Defendant returned to his residence with his girlfriend and a friend. When they arrived, Musa’ati was already there with another mutual friend, Penisoni, drinking alcohol. About 30 minutes later, the Defendant’s girlfriend went into his room to sleep. Penisoni went out to urinate. When he returned, he saw Musa’ati lying on the living room floor. The Defendant told him that Musa’ati had gone into his room and tried to touch his girlfriend and so the Defendant punched Musa’ati three times.
3. The Defendant then placed Musa’ati in his van and went back to drinking. Around 4 a.m., the Defendant and Penisoni finished drinking. Penisoni waited till after curfew to return home. Around 7 a.m., Penisoni drove Musa’ati to his residence at Kolofo’ou. When they arrived, Penisoni and Musa’ati’s house mate, Uatesoni Koloi, carried Musa’ati to his room. Uatesoni cleaned Musa’ati before putting him in bed and kept going to check on him. When Uatesoni checked on him the fifth time, Musa’ati was dead.
4. Upon medical examination, Musa’ati was found to have dilated pupils, bruising and swelling to his left eye, abrasions on his left upper eyelid, fresh blood from the nose, blood stains on his face and lips, and generalized bruising to his clavicle, neck, upper, mid and lower back.
5. On 23 June 2021, an autopsy revealed, among other things, extensive sub-dura haemorrhaging and blood clotting covering the entire brain surface. The cause of death was marked intracranial haemorrhage with associated swelling of the brain, consistent with the head coming into direct contact with a blunt hard object such as wood, concrete or metal.
6. When he was apprehended by Police, the Defendant did not co-operate and chose to remain silent.

Crown’s submissions

7. The Crown submits the following as aggravating features of the offending:
   • (a) the force used by the Defendant was excessive;
   • (b) the Defendant was intoxicated; and
   • (c) although there was “no connection between the punches and the deceased’s death”, a life was still lost.
8. The Crown submits that the mitigating features are the Defendant’s guilty plea, albeit late, and his lack of previous convictions.
9. 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....”

(b) Taliai & Vea [2018] TOSC 56 – Vea took a hammer to a fight and hit the complainant on the head with it. A starting point of 42 months’ imprisonment was set, reduced by 15 months for mitigation, resulting in a sentence of 27 months’ imprisonment, with the last 6 months suspended on conditions.
(c) Pekipaki (CR 72/18) – the Defendant used an object to strike the complainant’s forehead with. He was sentenced to 27 months’ imprisonment with the final 12 months suspended.
(d) Viliami Fa’aui (CR 70/17) – the Defendant struck the victim with his fist, an empty alcohol bottle and a bucket of paint, which caused injuries to the victim’s eye and mouth. The Defendant was sentenced to 2 years’ imprisonment with the final 12 months suspended.
(e) Siokatame Tupou [2019] TOCA 8 – the Defendant used a machete to inflict serious injuries. The Court of Appeal agreed with a starting point of 4 years’ imprisonment. An additional count of grievous bodily harm resulted in a total of 6 years’ imprisonment with the final 2 years suspended.

10. Here, the Crown proposes the following sentence formulation:
    • (a) a starting point of 2½ - 3 years’ imprisonment;
    • (b) discounted for his guilty plea and clean record; and
    • (c) partial suspension.

Presentence report

11. Upon his re-arraignment, directions were given for the filing of submissions on sentence and a presentence report by 1 July 2022. The Defendant was also directed to attend the Probation Office within 48 hours to arrange for the preparation of his presentence report.
12. The Defendant did not file any submissions. Further, on 30 June 2022, the Senior Probation Officer informed the Court that the Defendant failed to attend their office as directed and therefore it had not been possible to prepare a report.
13. As stated in similar cases such as R v Hufanga [2021] TOSC 80:

“9. Such directions are made for the benefit of Defendants who are to be sentenced, particularly those who are not legally represented. The resources of the State in the form of the free service provided by the probation office in preparing presentence reports are valuable and limited. The reports greatly assist the Court to understand a Defendant’s background and personal circumstances and often provide an insight into the reasons for the offending from the Defendant’s perspective. Probation officers are also in a unique position to assess the genuineness or otherwise of any remorse expressed by a Defendant.
10. However, if a Defendant chooses not to attend the probation office for the preparation of his/her report, he/she can only be taken to have waived the benefit of a report. In those cases, and save for exceptional circumstances, the Court must proceed to deal with the matter, on the day directed, with whatever information is properly before it. That a judge may offer a Defendant an opportunity to make oral submissions if he or she wishes to either shortly before or on the day of sentencing will rarely be an effective substitute for a presentence report. It may also interfere with the judge’s preparation of sentencing remarks.
11. In the end, these are matters for a Defendant to decide. Failure to attend the probation office, such as has occurred here, can also often be a poor reflection of a Defendant’s attitude to the offending and acceptance of responsibility and thereby devalue any professed remorse.”

Defence submissions

14. Mr Tu'utafaiva did not file submissions on sentence when directed. He filed them by email to the Registrar yesterday. The Registrar was away ill and therefore, the submissions were not brought to my attention until this morning when Mr Tu'utafaiva announced his appearance. The matter was stood down for me to consider the submissions.
15. Mr Tu'utafaiva submitted, relevantly and in summary, that:
    • (a) the victim’s death should not be regarded as an aggravating feature because “[T]he Crown accepts that there was no connection between the punches by the Defendant and the death of the deceased, but for reasons not appearing in its sentencing submissions it submits the fact that there ‘was subsequently loss of life’ is an aggravating feature”;
    • (b) the comparable sentences relied on by the Crown may be distinguished from the instant case as they all involved the use of weapons;
    • (c) for the three punches to the victim’s face, an appropriate starting point is 2 to 2 ½ years imprisonment;
    • (d) the sentence should be fully suspended because the Defendant:
      • (i) co-operated with police by admitting to the three punches;
      • (ii) pleaded guilty, albeit not at the first opportunity, mainly because he says that there was no blood on the deceased’s face;
      • (iii) was initially charged with manslaughter on 14 June 2021, the Autopsy Report was issued on 25 June 2021, but the Crown did not reduce the charge to serious bodily harm until 3 November 2021;
      • (iv) was affected by alcohol on the night of the offending, although “the Defendant is required to have self-control when consuming alcohol”;
      • (v) has no previous criminal convictions;
      • (vi) is 38 years old;
      • (vii) is a Fijian national;
      • (viii) is married with two young children but separated from his wife who lives in Fiji with their youngest child;
      • (ix) has custody of his 10 year old daughter who is in primary school;
      • (x) is currently in a de facto relationship; and
      • (xi) has been in Tonga for about 4 years on a work visa which is renewable biannually and is currently employed by Cowley’s Bakery as a baker and pastry chef.

Starting point

16. The maximum statutory penalty for causing serious bodily harm is 5 years’ imprisonment.
17. This is yet another sad and tragic case where a violent, alcohol fuelled, outburst has resulted, at least indirectly, in the death of the victim. On 8 March 2022, Mr Lutui, the Director of Public Prosecutions, explained that the decision to lay the charge of causing serious bodily harm was reached after consideration of the appropriate prosecution tests and thresholds by which his office concluded that there was insufficient medical evidence to prove, to the required standard, a causal nexus between the punches admitted by the Defendant and the injuries to the victim’s skull and brain which led to his death.
18. In my view, the Defendant is very fortunate not to have been charged with manslaughter. Despite the somewhat understandable reticence felt by the Prosecution in advancing a case for a more serious charge, experience from similar cases^[1] strongly suggests that a likely scenario was that the punches to the victim’s face rendered him unconscious and/or caused him to fall with his head hitting the ground.
19. I do not consider that justice would be served by merely sentencing the Defendant on the basis of him having punched the victim three times to his face and ignoring the fact that the victim died not long after the altercation. While he was not charged on the basis of that result, the reality of the victim’s death must be considered as part of the seriousness of the offending. The information before me in respect of the medical examination and subsequent autopsy does not reveal any congenital defect, disease or other mechanism by which the victim could have died due to a cause or causes entirely independent of the Defendant’s punches. In that regard, I note Mr Tu'utafaiva’s submission that the Defendant cooperated with the authorities by admitting to having punched the victim. However, the material before me does not include any explanation by the Defendant to the police (and I do not know whether he was asked) as what happened to the victim immediately after the blows were landed, such as whether he was rendered unconscious or fell to the ground and hit his head as a result of the punches.
20. In any event, the statutory maximum penalty for the lesser charge of causing serious bodily harm of only five years imprisonment ensures that the Defendant is not sentenced for a more serious offence for which he was not charged.
21. As Ward LCJ in Hu’ahulu v Police, ibid, opined, anyone who commits an offence of serious violence, even a first offender, runs a very serious risk of being imprisoned. After “weighing up all of the objective and subjective circumstances”, as Andrew J did in Mohokoi [2008] TOLawRp 23, I too “can only conclude that the seriousness of the offence and all of the circumstances mean that a sentence of imprisonment is warranted.”
22. In considering the terms of that sentence, the Court is conscious of the almost catastrophic effect a significant term of imprisonment can have on a first offender such as the Defendant. However, there are other interests to be considered including the effects of the offending on the victim and his family (who can occasionally be overlooked in cases of this kind) and the interests of society as a whole: R v Wollaston (1986) 8 Cr.App.R.(S). 360. The prevalence of this kind of violence which inevitably carries with it the risk of serious injury, if not death, requires that any sentence passed must have inbuilt a measure of deterrence: R v Silver and Gosling (1982) 4 Cr.App.R.(S). 48.
23. Having regard to the seriousness of the offending, the comparable sentences and principles referred to above, and the sentencing objectives of punishment, denunciation and specific and general deterrence, I set a starting point of three years’ imprisonment.

Mitigation

24. For the Defendant’s late guilty plea and good previous record, I reduce the starting point by 10 months, resulting in a sentence of two years and two months (or 26 months) imprisonment.

Suspension

25. The considerations for suspension in Mo’unga [1998] Tonga LR 154 at 157 produce a mixed result. Those against suspension are that the Defendant is not young and, according to the summary of facts (to which the Defendant has pleaded guilty), he did not co-operate with the authorities. Those in favour of suspension include his good previous record and, if his account to Penisoni is accepted, the presence of some provocation in the victim approaching the Defendant's girlfriend while she was sleeping. I have given some weight to the involvement of alcohol in determining culpability and to the Defendant’s personal and family circumstances. His late guilty plea is also some indication of his acceptance of responsibility and presumed remorse.
26. As noted above, the seriousness and prevalence of this type of violent offending in Tonga demands effective deterrence. That sentencing objective would not be served by full suspension of the sentence here.
27. On balance, I consider it appropriate to order that the final 10 months of the sentence be suspended on conditions as set out below.
    

Result

28. The Defendant is convicted of causing serious bodily harm and is sentenced to two years and two months (or 26 months) imprisonment.
29. The final ten months of the sentence is to be suspended for a period of one year, on condition 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 and thereafter as directed by his probation officer;
    • (d) abstain from consuming alcohol; and
    • (e) complete rehabilitation courses on drugs and alcohol and anger management as directed by his probation officer.
30. Failure to comply with any of the above conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of his prison term.
31. The Defendant is to be given credit for time served on remand in custody.

NUKU’ALOFA	M. H. Whitten QC
15 July 2022	LORD CHIEF JUSTICE

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^[1] For example, see R v Maile [2021] TOSC 119.