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R v Niua [2022] TOSC 59; CR 9 of 2022 (22 July 2022)

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


CR 09 of 2022


REX
-v-
VINCENT MAVAETANGI NIUA


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr T. ‘Aho for the Prosecution
The Defendant in person
Date: 22 July 2022


The charges

  1. The Defendant was originally charged with three counts of rape, serious housebreaking and attempted murder. At his arraignment on 12 April 2022, the Defendant refused to enter a plea. Therefore, default pleas of not guilty were entered in respect of each charge. The trial of the matter was listed to commence on 13 June 2022.
  2. On that date, the Defendant was re-arraigned, whereupon he pleaded guilty to the serious housebreaking and attempted murder (counts 4 and 5). The Prosecution accepted those pleas in discharge of the rape counts.

The offending

  1. In 2020, after messaging each other for a few years, the Defendant commenced a relationship with the Complainant. At that time, the Defendant was married to another woman with four children. By June that year, the Defendant and the Complainant were living in a de facto relationship. After a while, the Defendant started to become controlling of the Complainant and was angry and violent if she refused him sex. In October 2020, the Complainant broke off the relationship and returned to her mother in Vava'u. In November, she returned to Fua’amotu where the Defendant begged her to take him back, which she did. However, by December, the Defendant started to become violent again towards the Complainant accusing her of having relationships with other men. He also beat her when she refused to have sex with him.
  2. In January 2021, the Complainant broke off the relationship again. In April, they resumed the relationship. They broke up again in May and resumed again in June. In September 2021, the Defendant told the Complainant that he had divorced his wife and for the Complainant to sort out her birth certificate so that they could get married. The Complainant agreed.
  3. On 16 October 2021, the Defendant presented the Complainant with a bible and told her to kiss it and swear on it and they would then be married. She refused and chased him away but he kept insisting that she promise that they will be married. A neighbour intervened and told the Defendant to go away so that the Complainant could think properly. However, the Defendant refused to leave. The Complainant then threatened to call the police whereupon the Defendant left in his vehicle.
  4. Around 3 a.m. the next morning, the Defendant called the Complainant and apologised. The Complainant told him that she had had enough and that they were done. The Defendant kept trying to apologise. The Complainant fell asleep.
  5. At around 6 a.m., the Complainant felt someone strangling her with what felt like a rope. She tried to reach out to the person, but he kept tightening the rope. The Complainant heard her daughter crying and she realised then that it was the Defendant who was strangling her. She tried to defend herself by scratching his face. He eventually released his hold and she shouted at him. The Defendant kept saying that he loved the Complainant. The Complainant carried her daughter away and called out to neighbours for help. One of those who attended found the Complainant crying and saw that her neck was red. Later that morning, the Complainant filed a complaint with police.
  6. On 18 December 2021, the Complainant was medically examined although by that time there were no visible signs of injury except that she reported still feeling some discomfort around her neck and upper shoulders.
  7. On 20 October 2021, police searched the Defendant's wife's residence at Veitongo and found an electric cable which the wife said the Defendant had told her he had used on the Complainant.
  8. On 21 October 2021, police interviewed the Defendant during which he admitted to breaking into the Complainant's house and attempting to murder her.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits the following as mitigating features:
  3. The Crown was unable to find any comparable domestic cases for attempted murder but referred to the principles in the UK decisions of Brewer (1987) 9 Cr App R (S) 44, Drinkald (1988) 10 Cr App R (S) 380, Dean (1990) 12 Cr App R (S) 527 and Grant (1992) 13 Cr App R (S) 4, and the Western Australian decision in Bell v The Queen (1992) 62 A Crim R 66. The Crown also referred to Chapter S 43.14 to S 43.19 of Archbold Criminal Pleading Evidence and Practice 2022 Ed. on the sentencing tariffs for Attempted Murder in England, which also carries a maximum sentence of life imprisonment. Those principles are considered below.
  4. Here, the Crown proposes the following sentence formulation:

Victim impact report

  1. The Crown submitted a victim impact report which provided the following information.
  2. The Complainant, who was 37 years of age at the time of the offending, was married in her 20’s and lived with her former husband in Hawaii. They separated in 2012. She returned to Tonga in 2017 and lived with her parents. Her father passed away in 2018.
  3. She met the Defendant in April 2020 through Facebook. They got to know each other and eventually met in person. He lied to her about his age and that he was not married, which is why she agreed to start a relationship with him. At first, the Defendant “was a gentleman, showed no violence and cared for her so much. She was really in love with him.” Later in their relationship, he became controlling and got angry if she refused to have sex with him.
  4. The Complainant described the circumstances of the offending in accordance with the summary provided above.
  5. The ordeal has affected her and she now lives in fear of her life. She covers up her windows with copper and her doors remain shut at all times. When she wants to use the outdoor bathroom, she needs someone to accompany her. She is very scared of the Defendant and never wants to see him again. She has been attending church often and has been encouraged by her prayer group to move on from what has happened. She believes that with time and prayer, she will be healed.
  6. The Complainant considered that alcohol changed the Defendant’s behaviour. That is because whenever he beat her, he was intoxicated. But when he was in his “right mind”, he was a "very kind person". That was the reason she kept accepting him back.
  7. In December 2021, the Defendant texted the Complainant and apologised. His children then later approached her and apologised for their father’s actions. She accepted their apology and she has forgiven the Defendant.
  8. The Complainant accepted that during their relationship, the Defendant spent a lot of his income on her, her mother and her daughter. She considered that a normal part of courtship.
  9. The Complainant asks the Court to show mercy in sentencing the Defendant. She believes that if he stops drinking alcohol, he is a good person.

Presentence report

  1. The presentence report provided the following information.
  2. The Defendant is 51 years of age. He is the youngest of eight siblings. He was educated for two years at Tonga College. He grew up in a loving family home and was spoiled by his parents for being the youngest.
  3. As noted above, the Defendant was married with four children. He is now divorced and resides at Vaini. His only source of income is from fishing and occasional contract work. At one point, he had a business farming pigs in Ha’apai. That ended when he and his family moved to Tongatapu for his children to attend high school. He later returned back to Ha’apai to resume that business while his wife and children remained in Tongatapu. Loneliness led him to start messaging the Complainant.
  4. The Defendant’s daughter described him as someone who “did not leave a good impression” on her and her siblings and that “it will take a long time to heal” from all the Defendant’s affairs and his violence towards their mother whenever she questioned him about the affairs. In that regard, she also described the Defendant as a “ladies’ man” who used to tell them that “his affairs are his alone and no one has a say in it.”
  5. The Defendant’s wife described being married to him as “hard” because she always felt like “the second woman” in his life. The most painful part was when he would talk about other women and compare them to her. When she complained about his behaviour, he would “snap” and beat her.
  6. The Veitongo town office also described Defendant as a good person within the community but that “behind closed doors he is a different person.”
  7. In relation to the offending, the Defendant explained it as “a prank” because he was tired of being lied to by the Complainant.
  8. The probation officer (female) reported that during his interview, the Defendant “at first started to flirt and looked like someone on a first date”, which confirmed the description of him by his ex-wife and daughter.
  9. The presentence report included letters of support from the Veitongo town officer and the Nuku’alofa South Stake President of the Defendant’s church. The Defendant’s children also wrote that their father:
“... is important to us and he is a good person and he works hard for our family. We ask that you forgive him as he is our father and we would also be grateful for the Court’s mercy.”
  1. The probation officer concluded that the Defendant is “an overconfident person” who thinks he has an appeal that attracts women. However, despite the violence he inflicted on the Complainant and reported abuse of his ex-wife and children, the probation officer considered the Defendant to have prospects of rehabilitation and therefore recommended partial suspension on conditions.

Starting points

  1. The maximum statutory sentence for attempted murder, pursuant to ss 92(b) of the Criminal Offences Act, is life imprisonment. The maximum statutory sentence for serious housebreaking, pursuant to ss 173(5)(a) of the said Act, is 10 years’ imprisonment.
  2. An offence of attempted murder involves a deliberate, settled intention to kill the victim: R v Brewer (1987) 9 Cr.App.R.(S). 44. The offence is an extremely serious matter which calls for condign punishment: R v Haynes (1983) 5 Cr.App.R.(S) 58. A substantial element of deterrence is necessary: R v Peatfield (1985) 7 Cr.App.R.(S) 132.
  3. In Drinkald, ibid, the appellant attempted to murder his former wife by stabbing her with a knife and an axe. The victim suffered injuries to her stomach resulting in the removal of her spleen. He was suffering from acute depression at the time. The court there observed that “there could have been a soundly based defence of substantially diminished responsibility.” The Court of Appeal reduced the sentence of eight years imprisonment to six.
  4. In Dearn, ibid, the appellant attempted to murder a young woman with whom he had a relationship by tying a flex around her neck and strangling her for at least five minutes, which resulted in severe brain damage. On appeal, the sentence of 15 years imprisonment was reduced to 12.
  5. In Grant, ibid, the Defendant carefully planned the attempted murder of his wife and baby son by setting them on fire. The court considered that the domestic background against which the offences were committed was not of special relevance and sentenced the Defendant to a total of 16 years’ imprisonment.
  6. In Bell, ibid, Ipp J observed:
“It is difficult to discern a definite range from these cases. It can perhaps be said that, in England, for serious cases of attempted murder arising out of domestic relationships, a term of imprisonment of not more than 10 years will usually be imposed. But this is not an inflexible rule as is apparent from Haines, Dearn, and, to a degree, Grant. Further, it should be said, that the limitation on the term of imprisonment has not been brought about by any application of principle but simply because of a pattern of sentencing that has developed. It should also be noted that in those cases where a lesser sentence has been imposed, the offender has generally acted in the heat of the moment or under a degree of diminished responsibility.
We were also referred to Duvivier (1982) 29 SASR 217; 5 A Crim R 89, a decision of the Court of Criminal Appeal of South Australia. In this case the appellant had gone to the former matrimonial home with a rifle. He overheard his wife say that she was going to France with another man. Thereupon he shot his wife four times and seriously injured her. The trial judge, in sentencing had said:
‘So this is a case of premediated and pre-planned attempted murder, not just a sudden impulse of wild shooting under immediate provocation.’
He sentenced the appellant to imprisonment with hard labour for 10 years and this sentence was upheld on appeal. Zelling J said (at 239-240; 108):
‘Compared with other decisions of this Court such as Collingridge (unreported, Court of Criminal Appeal, SA, 10 December 1975) where the sentence was 10 years, and the case of Perry (1981) 96 LSJS 205 where the sentence was 15 years, both cases of attempted murder, one cannot say that this sentence is out of line with other sentences for this offence.’”

[emphasis added]


  1. The English guidelines set out in Archbold provide a number of steps in sentencing for attempted murder. Given the dearth of authority in Tonga on this type of offending, I consider the guidelines to be a useful consideration in formulating an appropriate sentence here.
  2. The first step is to determine the offence category, by assessment of the level of culpability (ranging from very high culpability to lesser culpability) and harm to the victim. Here, the Defendant used a cable as a weapon but not of a kind such as a knife or other conventional weapon referred to in the more serious categories of culpability. There is scant material on the question of premeditation or whether the offending was a spontaneous attempt to kill. The fact that alcohol was involved would tend to suggest more the latter. However, I do not accept the Defendant’s purported explanation that his actions were “a prank”. In my view, it is more likely that he was feeling scorned by the complainant having ended the relationship and, consistent with his egotistically controlling manner, was intent on revenge and subjugation by ending her life. His actions can only be described as appalling and sadistic. Those features of the offending correspond with the guidelines category of medium culpability.
  3. The harm, physically at least, to the victim falls within category 3, the least severe.
  4. The second step is to establish the starting point and range of available sentences. The guidelines provide a matrix between the level of culpability and harm. Here, the above characteristics of the offending coincide at a starting point of 10 years imprisonment, before further adjustment for aggravating or mitigating features, within a sentencing range of 7 to 15 years.
  5. A number of the aggravating factors in the non-exhaustive list set out in the guidelines are applicable to the offending here and therefore warrant an upward adjustment to the starting point. For instance, the offence was committed in a domestic context; there was a history of violence or abuse towards the victim by the Defendant; the offending involved an abuse of trust; it put others at risk of harm in that the victim’s child witnessed the Defendant strangling her mother and the offending appears to have been committed under the influence of alcohol.
  6. Having regard to the above principles and analysis of the characteristics of the offending and its effect on the victim, and the sentencing objectives of punishment, denunciation, deterrence and protection of the community, I set a starting point for the attempted murder of 12 years imprisonment. For the serious housebreaking, I set a starting point of 4 years imprisonment.

Mitigation

  1. For the Defendant’s belated guilty pleas (thereby saving time and resources and the Complainant from having to appear in Court to relive the ordeal), good previous record and apparent remorse (all of which are among the factors in mitigation set out in the UK guidelines), I reduce those starting points to sentences of 8 years imprisonment for the attempted murder and 3 years imprisonment for the serious housebreaking, to be served concurrently with the head sentence.

Suspension

  1. Most of the considerations in Mo’unga[1] favour some suspension. Although the Defendant is not young, he co-operated with the authorities and admitted to the allegations, he eventually pleaded guilty, and this is his first conviction. I also take account of the victim’s forgiveness, the Defendant’s previously good character within his community and his children’s plea on his behalf.
  2. For those reasons, I am satisfied that the Defendant is likely to take the opportunity for rehabilitation afforded by a partially suspended sentence.

Result

  1. The Defendant is convicted of:
  2. The final 2 years of the sentence is to be suspended for a period of 3 years, on condition that during the said period of suspension, the Defendant is to:
  3. 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.



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

[1] [1998] Tonga LR 154 at 157

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