R v Vaka [2022] TOSC 61; CR 36 of 2022 (21 July 2022)

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

CR 36 of 2022

REX

-v-
Hausia VAKA

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Mr. J. Lutui, DPP for the Prosecution
Mr. S. Fili for the Defendant
Date of Sentence : 21 July 2022

1. Mr. Vaka was convicted after trial of causing grievous bodily harm contrary to section 106 (1) & (2) (b) Criminal Offences Act.
2. On the 22^nd of November 2021 he attacked ‘Atieli Tulikihau by striking his left hand with a machete. Mr. Tulikihau had gone to his allotment to find that his pineapple plants had been destroyed. They had been trampled and hacked at using some type of bladed instrument.
3. The next door plot is the ‘api of Mr. Vaka. He has a fale there, land that he attends and a roadside market.
4. He came to the land after Mr. Tulikihau and his father were already in possession of their plot. There has been tension between Mr. Vaka and his neighbours ever since.
5. When Mr. Tulikihau found his crops destroyed and saw Mr. Vaka on the neighbouring plot, he asked him if he had done this. Mr. Vaka said he had and added “Ko e hia au ʻi homau feituʻu” (I am the baddest guy in the village).
6. He already had the machete in his hand and challenged Mr. Tulikihau to a fight.
7. Mr. Tulikihau told him to throw it aside if he wanted a fight.
8. In the end Mr. Tulikihau turned and started to leave. This is when Mr. Vaka hit Mr. Tulikihau using the flat of the machete blade and knocked him to the ground.
9. Mr. Tulikihau fell face down and as he landed, turned to his side, but Mr. Vaka was upon him and hacked at him. Mr. Tulikihau thought the blow was aimed at his head, instinctively stretched out his left arm to defend himself and the machete tore open his hand.
10. Mr. Tulikihau went straight to hospital for treatment. Even so, the wound became infected. His flexor tendon could not be repaired because of this and he has, in turn, lost the use of all his fingers on that hand.
11. The laceration was 2 cm wide and 10 cm long. It ran so deep that Mr. Tulikihau’s thumb had to be amputated by the doctors.
12. At trial Mr. Vaka indulged in a pretence that he was attacked first by Mr. Tulikihau with a pole.
13. Even had this been the case, his actions were out of all proportion in resorting to a machete attack.
14. But in point of fact I found that account to be untrue and dishonest. I note he still clings to it now, which does him no credit at all.
15. What he did was attack a defenceless man on the ground and aimed a machete blow at his head, which in turn caused these life changing injuries.

Victim impact report

16. Mr. Tulikihau has lost the use of his left hand. With it, his confidence and hopes for the future have been diminished.
17. He was hospitalised from 22^nd November to 16^th December 2021 and underwent a major operation.
18. He has lost the use of his dominant hand completely and is having to learn to write again.
19. He used to support his family working in the bush with his father, but this has been ended.
20. Formerly he worked as a panel beater and can not carry on that trade.
21. He feels self-conscious when he finds people looking at him and worries about ever finding a wife.
22. It is a sign of his bravery and character that he has forgiven Mr. Vaka and wants to move on with his life.

Crown’s submissions on sentence

23. The Crown submits, when looking at the authorities, that a starting point of 6 ½ years ought to be adopted and that some suspension is merited.

Defendant’s antecedents

24. Between 2003 and 2012 Mr. Vaka has been convicted 5 times for 6 offences.
25. In 2003 and 2005 there have been convictions in the Magistrate’s court for offences of assault which were met with sentences of fines and compensation.
26. Two offences of theft; in 2004 which was accompanied by an offence of unlawful entry into a building by night merited a total of 6 month’s imprisonment. In 2012 for theft he was received to a fine.
27. Before that he had committed a robbery for which he received a sentence of 18 months’ imprisonment, the last 6 of which were suspended.
28. The trajectory of his offending is increasing and his sentences have started to become more severe.
29. His record is of a persistent offender who has a disregard for the law and relies on violence to get his own way.

Comparable sentences

30. Tupou v Rex AC 16/2018. The appeal judges noted that a sentence of 6 ½ years was within the appropriate range for a machete attack. In upholding the sentence in that case, they expressed their outrage at the inflicting of serious injury with a weapon as well as the prevalence of doing so with machetes, here in Tonga. In that case a machete was used to cause the victim multiple lacerations to his left arm, forearm and left hand that resulted in a reduction of movement and use of both that hand and two of its fingers.
31. R v Aisake CR 19/2019, Paulsen LCJ imposed a starting point of 7 ½ years for a machete attack on a police officer who had attended a residence to deal with a husband who had sought out his estranged wife and refused to leave her parents’ address. He struck the officer with the machete on the head. He suffered a depressed fracture to the skull that required emergency surgery. He recovered, but was left with mild nerve damage to the left side of his body.
32. R v Fakaanga 172/2021. Lord Chief Justice Whitten QC imposed a starting point of 7 ½ years where a machete attack during a drunken brawl caused the loss of three fingers on the victims left hand and ultimately the amputation of that hand.
33. It is important to dwell on what Whitten LCJ stated in that case, that the features he had in mind in reaching the starting point he did were based on factors including :
    1. The serious injuries including the loss of the left hand;
    2. Repeated use of a machete;
    3. Premeditation, and
    4. The seriousness of the offending in the context of the statutory maximum sentence.

Maximum sentence

34. For an offence of causing grievous bodily harm the maximum sentence is 10 years’ imprisonment.

Aggravating features

1. Use of a machete;
2. Attacking a defenceless man on the ground;
3. Attempting to cause more serious injuries than were actually inflicted, and
4. The loss of use of the victim’s dominant hand.

Mitigating features

1. The defendant has not been convicted of an offence for some 10 years.

35. When I weigh the aggravating and mitigating features up, it appears to me any distinction between this case and that of R v Fakaanga (ibid) is one without a difference when looking at, inter alia, the harm done and it being an attack on a defenceless man on the ground.
36. I therefore adopt a starting point of 7 ½ years.
37. Mr. Vaka not only contested the case but persists in suggesting he was in some way justified in what he did.
38. I am afraid I can see no reason to discount the starting point.

Suspension

39. As for any suspension, I have considered the Mo’unga principles: [1998] Tonga LR 154. Those are focussed on rehabilitation.
40. It is quite true that Mr. Vaka is not particularly young, nor has he taken responsibility for what he has done. He denied the offence in police interview. He maintains his claim he was in some way justified in what he did.
41. Yet, I feel that there must be some hope for him when he faces the long prison sentence he does.
42. I balance the need for rehabilitation against the defendant’s record of previous convictions and the escalating use of violence he has shown over these last 20 years. His previous convictions I have not taken into account at any other stage in the sentencing exercise, but I do here.
43. I conclude 1 year ought to be suspended, but that must be suspended for 3 years.
44. During the term of suspension he must abide by the following conditions :
    1. To report to his probation officer within 48 hours of release from his sentence;
    2. Be placed on probation;
    3. Not to commit any offence punishable by imprisonment, and
    4. Satisfactorily undertake any such course his probation officer requires of him.

Total sentence

45. 7 ½ years’ imprisonment, the last 12 months suspended on the above conditions.
46. That sentence will be back dated to his first remand on 23^rd June 2022.
    

N. J. Cooper

J U D G E

NUKU’ALOFA

21 July 2022