R v Ledger [2022] TOSC 75; CR 7 of 2022 (29 August 2022)

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

CR 7/2022

REX
-v-
MA’AFU LEDGER

SENTENCING REMARKS

Before: Justice P. Tupou KC
Appearances: Ms. A. Fifita-‘Aholelei for the Prosecution
Defendant in person
Date: 29 August, 2022

The charge

1. On 3 May 2022, the Defendant pleaded guilty to one count of causing serious bodily harm, contrary to section 106 (1) and (2)(b) of the Criminal Offences Act.

The offending

2. On or about 8 May, 2021, the Defendant, the Victim and one Fakava’inga were drinking at the Victim’s home. The Victim allegedly lunged at Fakava’inga and the Defendant intervened to stop him as Fakava’inga was older than the Victim. The 62 year old Victim threatened to beat up the 40 year old Defendant. The Defendant, struck the Victim with a beer can, on the right side of his face hitting his right eye and ran off. The Victim was referred to Vaiola Hospital from Ha’apai and the medical opinion was that the injury sustained was consistent with “blunt forced trauma to the right eye resulting in permanent blindness in that eye.”

Crown’s submissions

3. The Crown submitted the following as aggravating factors:
   1. the defendant has prior convictions for assault and domestic violence;
   2. his actions were premeditated;
   100. he used a weapon (can of beer) to strike the Complainant,
   4. he ran off after the assault without regard to the Complainant’s injury;
   5. he assaulted the Complainant at his own home where he did not expect to be assaulted;
   6. Complainant was intoxicated,
   7. The complainant’s right eye is permanently blind,
   8. The defendant has not apologized to the complainant.
4. The Crown submitted the following mitigating factors;
   1. the Defendant ’s early guilty plea;
   2. He cooperated with the Police;
   100. The defendant struck the complainant only once;
   4. The assault resulted when the defendant intervened to stop the complainant from lunging at an elderly man.
5. The Crown referred to the following comparable sentences:
   1. Rex v Toki, CR 106/2009 –the accused handcuffed the victim, punched, kicked and stomped on him. For the causing of bodily harm count, the accused was sentenced to 2 years imprisonment.
   2. Rex v Vunga Fusikata, CR 313/2020 –the accused repeatedly punched the victim on the left eye leaving him permanently blind in that eye. A starting point of 5 years was set with a final sentence of 4 years 6 months after mitigation. The last 18 months was suspended for 2 years on conditions.
   100. Rex v Sione Lolohea, CR 85/2020 – the intoxicated accused struck the victim with a piece of timber while he was asleep causing permanent blindness in the victim’s left eye. A starting point of 6 years was set with a final sentence of 4 years imprisonment after mitigation with the final 12 months suspended.
   4. Rex v Misa [1991] TLR 69- the accused struck the victim with a torch causing grievious injuries to his eye. He was sentenced to 4 years’ imprisonment to serve 6 months and 3 years and 6 months suspended.
   5. Rex v Mumuhu Pou’uhila, CR 104/2017 – the accused in this case threw a brick at the victim’s face. The victim had to undergo surgery for a compound depressed fracture to the left temporal bone of his skull and was left permanently left blind in the right eye.

Victim Impact Statement

6. In addition to the Prosecutions comments, the Victim also wrote to the court. His letter stated that he avoids public gatherings, shameful of the disfigurement to his face. Due to the blindness in his right eye, he is no longer able to provide for his family as the work that earned him money such as mechanical works, construction and deep sea fishing is now no longer possible. Physically, his left eye has also been affected. He experiences pain and water running from it now and then. He is now required to wear glasses to do small tasks. He said that he is frustrated that he will suffer from this injury for the remainder of his life.

Pre-sentence Report

8. The Defendant is 42 years old. He grew up in Kolofo’ou, Tongatapu and completed 6^th form at ‘Apifo’ou College. His mother served as an education officer with the Ministry of Education and his father worked for Shell, the oil company. He had a good upbringing but his father was an alcoholic and the children including the defendant developed similar habits.
9. The Defendant married Viola Folau in 2007 and they had 3 children. They divorced in 2015 due to domestic abuse for which the Defendant was convicted at the Magistrates Court. Viola returned to Ha’apai with the children, now aged, 14, 12 and 9. The defendant followed them to Ha’apai and is said to help in looking after them at weekends and supports them financially.
10. He resides with Fr. Tomu’ale Lakalaka, a Catholic Priest, at his residence at Ha’ato’u. Fr. Lakalaka observed that the Defendant’s use of alcohol was main the agent in his offending and since the incident his alcohol intake has been less frequent.
11. The Defendant is remorseful and his attempts to apologize to the victim has not been welcomed. He has previous convictions for common assault and domestic violence in the Magistrates Court.

Starting point

12. The maximum statutory penalty for causing serious bodily harm is 10 years’ imprisonment.
13. The Crown proposes a starting of 5 years with 12 months deducted for mitigation and for the last 18 months to be suspended for a period of two years on conditions.
14. The Defendant explained to the Probation Officer that he committed this offence because the Victim kept threatening to beat him up and that he saw the Victim lunging at an elderly man. He told the Victim not to treat elderly people like that. I find this explanation by the Defendant illogical, for the simple reason that he himself went on to attack the Victim, a 62-year-old man, 22 years his senior.
15. Further, I consider the relevant comparable sentences to be Rex v Sione Lolohea, Rex v Misa and Rex v Mumuhu Pou’uhila in that they all involved the use of a weapon and the victims suffered permanent blindness in an eye.
16. Therefore, having regard to the seriousness of the offence, the maximum statutory penalty, and the sentencing principles of punishment and deterrence, I adopt the approach taken by Cato J in R v Po’uhila, ibid, and set a starting point of 5 years’ imprisonment.

Mitigation

17. I do not consider the Crown’s submission that the Defendant striking the Victim once as a mitigating factor as it took that one strike to inflict the permanent facial disfigurement and blindness the Victim will now bear for his lifetime.
18. But I do consider that the Defendant ’s early guilty plea, expression of remorse and I accept he had, several times made efforts to apologize to the Victim as mitigating factors in his favour. For those reasons, I deduct 12 months from the above starting point, resulting in a sentence of 4 years’ imprisonment.

Suspension

19. Having regard to the principles set out in Mo’unga [1998] TLR 154 at 157, it is accepted that the Defendant is not young and he has relevant previous convictions.
20. However, he cooperated with the authorities and despite the Crown submitting the offence was premeditated, I accept that the Defendant and the Victim were intoxicated and the attack was a spontaneous but unwarranted reaction by the Defendant to the Victim. The argument did not involve the Defendant and had he stayed out of it, he most probably would not be here today.
21. Fr. Lakalaka and the town officer of Ha’atou speak well of the Defendant and they told the Probation Officer that he is genuinely a good person but needs help. The Defendant has agreed to participate in a rehabilitation program for alcohol abuse training and anger management.
22. I find the Defendant’s move to Ha’apai after his divorce to be close to his children, commendable. I believe that he is genuine when he says he was sorry that his children will suffer the consequences of his actions if he is imprisoned.
23. Having regard to all the relevant circumstances above factors, I believe that the Defendant will take the opportunity a suspended sentence offers to rehabilitate himself and I suspend the last 18 months of his sentence.

Result

24. The Defendant is convicted of causing serious bodily harm and is sentenced to 4 years’ imprisonment.
25. The final 18 months of the sentence are to be suspended, for a period of 2 years from the Defendant's release from prison, on condition that during the said suspension period, 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) complete the rehabilitation program for alcohol abuse training and anger management he agreed to undertake.

26. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his sentence.
27. I order that the Defendant serve his sentence at the Fale’one Prison at Ha’ato’u, Ha’apai
    

P. Tupou KC
JUDGE

NUKU’ALOFA

29 August 2022