R v 'Aho'atu [2022] TOSC 9; CR 199 of 2021 (9 March 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 199 of 2021

REX

-v-

TIMOTE ‘AHO’ATU

BEFORE HON. JUSTICE NIU

Counsel : Mrs ‘Eliesa for the Crown

: Mr Tu’utafaiva for the Accused

Plea : Guilty on 7 December 2021

Report : by Probation Officer Patelisio Pale on 31 January 2022

Submission : by Crown Counsel on 25 February 2022

: by Mr. Tu’utafaiva on 4 March 2022

Sentencing : 9 March 2022

SENTENCING

Offence

[1] Timote ‘Aho’atu, you have committed the offence of causing grievous bodily harm, contrary to S.106 (1) and (2) (c) of the Criminal Offences Act, namely, that you willfully and without lawful justification caused grievous harm to Siaosi Na’a when you shot him with a pistol causing injuries to his right arm and chest at Havelu on 5 July 2021.

[2] You pleaded guilty to committing that offence on 7 December 2021.

[3] The summary of facts states that you went to the home of one Kemio Sika at Havelu on 5 July 2021 where the victim, Siaosi Na’a, and several other boys were and you took out a pistol and shot Siaosi on his right arm and the bullet travelled through his chest and was lodged on the left wall of the chest and that it is still there up to now. The bullet missed the heart, lungs and major blood vessels. Siaosi was discharged from hospital after 5 days.

[4] You were arrested by the police sometimes after the shooting that evening and you readily admitted having committed the offence. You however told the police that you went and threw the pistol into the sea at the Faua Wharf and the police have searched but they could not find it.

No previous conviction

[5] Crown counsel says that you have no previous conviction.

Report

[6] The probation officer says that you are 44 years old and that you had lived in Australia with your wife and 4 children, aged 21, 19, 17 and 15 but that you were deported back here for domestic violence in 2016. He says that you work as mechanic for heavy machinery and that you are reliable and good at what you do.

[7] He says that you are remorseful and repentant for what you have done to the victim, to whom you have now found you are blood related. He says that you have apologised to him and have given him food and a sum of $200 and that he has forgiven you. He says that the victim has even asked that you be not penalized for what you did to him. He says that the victim admitted that he had a fight with you at a night club on Vuna Road and he had hit you and that that was the reason why you sought him out and shot him with the pistol, some 2 months or so later.

[8] The officer attaches several letters from persons who speak well of you, namely, the town officer of Havelu, the LDS Church Stake president, the Managing Director of Oregon Pacific, Officer of Bin-Go Waste Solutions, Tonga College Principal and the secretary general of the Tonga College Old Boys Association. Also attached is a letter from the victim in which he completely forgives you and apologises for what he had done to you.

Crown Submissions

[9] Crown counsel refers to 2 cases in which the victims had been shot with firearms and had received injuries:

(a) R v Langi (CR 171/2008) where the accused attempted to commit armed robbery and shot the shop owner with a .22 riffle causing serious injury. For the attempted armed robbery, he was sentenced to 8 years imprisonment, and for the causing of grievous bodily harm, he was sentenced to 6 years imprisonment, both sentences to be concurrent.

(b) R v Tavake & Kautai (CR 102-103/2016) where the accused Kautai accused the victims, Fine and Nofomuli, of stealing his tapa bark, and shot Fine in the right hand and Nofomuli close to his knee with a .22 riffle. For shooting Fine in the hand, Kautai was sentenced to 3 years imprisonment and to pay compensation of $1,500 and for shooting Nofomuli on the knee, Kautai was sentenced to 2 ½ years and to pay compensation of $1,500. The two sentences were ordered to be consecutive and that the final 2 years to be suspended on conditions.

[10] Counsel also says that she has spoken with the victim and that the victim says that he still feels some sort of pain when he wakes up in the morning and also when he is turning the upper part of his body. He said that he was admitted to hospital for a week and that the doctor told him that it was less risky to leave the bullet in his chest than to try and remove it. He said that he was only given antibiotics to take for the pain.

[11] Counsel says that the victim says he has forgiven you wholeheartedly and he hopes that you get a light sentence.

[12] Counsel says that, considering the sentences of Tavake and Kautai, an appropriate starting point for your sentence is 5 years imprisonment and that a further year be added to it in view of the aggravating features in your case. Those aggravating features are that you used a pistol, which is illegal to possess or use in Tonga. Secondly, you shot the victim in the chest area and at close range and you were doing so by way of revenge and by taking the law into your own hands. So that you have a total of 6 years.

[13] But that from that total, she says that 1 ½ years be deducted in view of your early guilty plea, your previous clean record and your apology to the victim, leaving a balance of 4 ½ years.

[14] She says that you are deserving of suspension of part of your sentence in accordance with the guidelines laid down in Mo’unga v R [1998] Tonga LR 154 because of your previous clean record, your guilty plea and your demonstration of rehabilitation by apologising to the victim. She, however says that because of the seriousness of your offence the sentence must reflect that, particularly the condemnation by society of the use of arm as a weapon to inflict grievous bodily harm.

Your Submissions

[15] Your counsel, Mr. Tu’utafaiva, has submitted on your behalf that the starting point for considering your sentence should be 4 years, and not 5 years as the Crown has submitted, because you fired only one shot and it was aimed at only the victim’s shoulder and not his head or heart, and the injury caused was only “soft tissue injury”, as described by the doctor.

[16] As to Crown counsel’s submission that an extra year be added to the starting point because of the aggravating features she refers to, he says that there is nothing extraordinary in those features to warrant such additional year.

[17] As to Crown counsel’s submission that you be only given a partial suspension of your sentence, he says that it is appropriate to consider that the sentence be suspended in total because Crown counsel has said that you are a man “worthy of suspension,” and that, he says, you would benefit from a course of anger management because he says you have a major problem controlling your anger. He also refers to the following features in your favour:

(a) you have no criminal conviction in Tonga;

(b) you have apologised properly to the victim with food and money and it has been accepted by the victim;

(c) you are truly remorseful;

(d) you cooperated with the police;

(e) you have pleaded guilty;

(f) the victim has asked for mercy for you;

(g) you have a job, and

(h) you were remanded in custody for this offence for 3 months.

A starting point

[18] The maximum sentence for the offence you have committed is 10 years imprisonment. Sentences which have been imposed by the Court for such offence have ranged from about 3 years to 6 years. I consider that a fair starting point for your offence is half way between those 2 sentences, that is, the starting point for considering your sentence should be 4½ years.

Aggravating features

[19] Certain features of your offence may have aggravated your offence so that it is appropriate to add to that starting point. Crown counsel has said that another year be added to the starting point because of the aggravating features, which she says, are the fact that you used a pistol to inflict the grievous bodily harm in this case, a pistol being illegal to possess or use in Tonga altogether, and because you shot him at close range in the chest area and because you did that by way of revenge and thereby took the law into your own hands.

[20] I have to be careful about that aspect of this case. You have not been charged with or convicted of possessing or using a pistol at all, and I must not sentence or penalise you as if you are so convicted. You have not been convicted of using, discharging or possessing any firearm at all. All I can accept is that you have caused grievous bodily harm with a weapon.

[21] As to shooting the victim in the chest area, that has been included in the offence of causing grievous bodily harm. That is why this offence is one of causing grievous bodily harm. If the shot had only been in the leg or foot, or hand, as in the case of Kautai referred to above, the offence would have only been serious causing of bodily harm and the maximum sentence would have only been 5 years imprisonment. But in the present case your shot was in the chest area although no injury was caused to either lung or to the heart or to any major blood vessel.

[22] I therefore agree with Mr. Tu’utafaiva that there are no aggravating features which would warrant an increase or an adding of another year to the starting point.

Mitigating features

[23] Just as aggravating features may increase the sentence in the starting point, mitigating features may decrease that sentence. The first mitigating feature is that you have pleaded guilty to the offence. The other mitigating features, which Mr. Tu’utafaiva has enumerated, are also worthy of further reducing the sentence.

The imprisonment sentence

[24] I consider that taking all those mitigating features into consideration, a deduction of 1½ years is warranted, leaving a sentence of 3 years.

Suspension

[25] Now, as to suspension of that sentence, I have considered the guidelines which the Court of Appeal has indicated in the case of Mo’unga v R [1998] Tonga LR 154. They are as follows:

“(i) Where the offender is young, has a previous good record, or has a long period free of criminal activity.

(ii) Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.

(iii) Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender.

(iv) Where there has been co-operation with the authorities.”

[26] Clearly, you do not qualify under guideline no. (iii) because this offence was clearly pre-meditated and any provocation, that is, the assault made upon you by the victim some 2 months previously, would have been spent that same night and you were not coerced by anyone else to go and shoot the victim as you did.

[27] It may also appear that you do not qualify under guideline no (i) either because you are not young any more. You are 44 years of age now.

[28] However, I consider that you qualify under guidelines (ii) and (iv) because you have shown you are remorseful because you have gone and apologised to the victim and you have come and pleaded guilty to having committed your offence, and you cooperated with the police. You have demonstrated that you would rehabilitate yourself.

[29] I must, however, consider the deterrent aspect of the sentence to be imposed on you because of the way you went and committed this offence. Crown counsel has rightly pointed out how you completely disregarded the law. The law requires you to complain to the police if you felt that the victim had unfairly and unlawfully done you wrong. That law stops you and prohibits you from punishing, or killing, that person who has wronged you. If there was no such law then there would be lawlessness. There would be no law and order and there would be no freedom. Your sentence must reflect the complete rejection and condemnation by society of what you have done and the upholding of the law.

[30] I therefore consider that you must serve half of your sentence of 3 years but less the 3 months during which you were remanded in custody.

Anger management

[31] I also consider that you must take a course in anger management in order that you would be able to avoid any repeat of the offence you have committed. It is clear that you had committed domestic violence overseas and had been sent back here because of your inability to control your temper. Your counsel has pointed out your inability to control your anger.

Sentence

[32] Accordingly, I sentence you for the offence of causing grievous bodily harm, to which you have pleaded guilty, to 2 years 9 months imprisonment (33 months) but that the final 18 months are to be suspended for a period of 2 years from the date of your release, upon the following conditions:

(i) that you report to the office of the Probation Officer within 48 hours after you are released from prison;

(ii) that you undertake and complete the anger management course of the Salvation Army which the Probation Officer shall arrange;

(iii) that you shall live and work where the Probation Officer shall direct; and

(iv) that you do not commit an offence punishable by imprisonment during the period of suspension.

NUKU’ALOFA: 9 March 2022.

Niu J

J U D G E