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R v Fonokalafi [2022] TOSC 92; CR 68 of 2022 (21 October 2022)

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


CR 68 of 2022


REX
-v-
SOLOMONE FONOKALAFI


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mrs E. Lui for the Prosecution
Ms M. Mangisi for the Defendant
Date: 21 October 2022


The charge

  1. The Defendant appears today for sentencing on one count of causing serious bodily harm contrary to ss 107(1), (2)(b) and (4) of the Criminal Offences Act (“the Act”).

Procedural background

  1. At his arraignment on 14 July 2022, the Defendant was charged with and pleaded not guilty to three counts of rape and causing serious bodily harm. The Complainant in respect of all counts was the Defendant’s wife.
  2. The trial of the matter was listed to commence on 5 September 2022. During her evidence at trial, the Complainant volunteered that she had made up parts of her complaint to police in order to get the Defendant into more trouble. The matter was stood down for the Prosecutor to take instructions. When the trial resumed, the Prosecution withdrew the three rape counts and was granted leave to amend the particulars to the serious bodily harm charge. The Defendant was then re-arraigned and pleaded guilty to the remaining charge.

The offending

  1. In 2021, as a result of continuing problems in their marriage, the Complainant left the family home. On 19 November 2021, the Complainant was staying with her one-year-old son at a guest house at Pahu. While walking along the road, the Complainant noticed a white taxi stop in which the Defendant was seated. He told her repeatedly to get in the car. When the Complainant asked the Defendant where they were going, he told her they were going to town to talk because he was going overseas for seasonal work. The Complainant got in the vehicle.
  2. Instead of going to town, and despite the Complainant’s repeated objections, the taxi driver drove the two to their residence at Fou’i.
  3. Once inside the house, the Defendant became angry because he had been told that his wife was living with a man. When the Complainant denied the accusation, the Defendant began swearing at her. The Defendant then told the Complainant to remove her clothes and to lie on the bed so he could see her body. Out of fear, she complied. The Defendant then tied the Complainant’s hands and feet and told her to remain silent. He left the room and returned with cello-tape which he used to tape her mouth.
  4. The Defendant then beat the Complainant’s feet and hands with a hammer.[1] The Complainant suffered excruciating pain and struggled to breathe.
  5. Later, the Defendant left the residence to pick up their son from Pahu. While he was gone, the Complainant managed to seek assistance from neighbours, and she was rushed to hospital. When she was examined, the Complainant’s limbs were reported to be grossly swollen and x-rays revealed several fractures (open, comminute and displaced) to her hands and feet.
  6. When he was apprehended, the Defendant cooperated and admitted to the offending.

Previous convictions

  1. The Defendant has previous convictions, spanning from 1995 to date, for drugs, theft and housebreaking and violence. The more serious and relevant include:

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. In a section entitled “Victim impact report”, Counsel recorded that the Complainant did not want to proceed with this matter and that she considered that “everything was her fault”. The Nukunuku police station reported that the Complainant and Defendant have a long history of domestic disputes, although whenever those matters had proceeded to court, the Complainant had withdrawn her complaints. Counsel noted that during the Complainant’s evidence in this matter, the same pattern emerged.
  4. The Crown relies on the following comparable sentences:
“...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. The likelihood of going to prison becomes a virtual certainty...when a weapon is used.”
(b) Ma’ake Pisina (CR15/2022) – the defendant, who also had prior convictions, pleaded guilty to stabbing the complainant twice with a knife. A starting point of 3 ½ years imprisonment was set, which was reduced to 2 ½ for mitigation.
(c) ‘Inivenisi Helu (CR325/2020) – the defendant pleaded guilty to assaulting the victim with a machete injuring his right arm. A starting point of 3 years imprisonment was set, which was reduced by 1 year for mitigation including a good previous record. The final 12 months of the 2 year sentence were suspended on conditions.
(d) Semisi Pulu (CR176/2020) – the defendant, who had prior convictions, pleaded guilty to punching the complainant’s face and then repeatedly hitting him with a garden hoe causing a fracture to his elbow. A starting point of 3 years imprisonment was set, which was reduced to 2 years for mitigation, with the final year suspended on conditions.
  1. Here, the Crown submits the following sentencing formulation:

Presentence report

  1. The Defendant is 45 years of age. He is the eldest of four children. He had a good upbringing until his early teens. When he was 15, his father was incarcerated. His mother started a new relationship and emigrated with her partner to the United States. His father later remarried. As a result, the Defendant has nine step-siblings. His parents’ separation took a toll on him which led him to drop out of high school at Form 2.
  2. In 2002, the Defendant and Complainant married and they produced five children. The Defendant told the probation officer that his wife introduced him to drugs and drug dealing. During their marriage, both used and supplied illicit drugs through their own different networks. The Defendant also blames his wife for having extra marital affairs due to her association with drugs. He said that she often left their home for days, weeks and up to a month without him knowing her whereabouts. Those issues have never been resolved. Since this incident, the two have separated without hope of reuniting. He is also estranged from most of his immediate family, although he has the support of his religious community.
  3. The Defendant has been employed as a carpenter for the past three years. His employer described him as hardworking.
  4. In relation to the offending, the Defendant told the probation officer that he had an agreement with his wife that if she was ever to leave home without his knowledge, he could punish her. Before the day in question, the Complainant had been away from home for about a month. According to the Defendant, he did not hear from her until the day in question when she called for money and to conspire to commit a crime. When the Defendant drove to pick her up, the complainant thought that he had agreed to the proposed crime. However, once the Complainant entered the taxi, he told the driver to go straight to Fo’ui. The Defendant admitted to the ensuing assault as detailed above. However, the Defendant said that on the basis of their earlier agreement, the Complainant consented to him beating her.
  5. The Defendant told the probation officer that since this offending, his life has been very difficult and he is trying to become a better person. To that end, he has sought help from Bishop Keni Kaufusi of the Fo’ui Ward. When interviewed, the Bishop described the Defendant as having a very bad history in relation to drugs and alcohol abuse but that, since June 2022, he has been working with the Defendant to transform his life through pastoral care and that the Defendant is making positive changes. As an example, the Defendant is said to have abstained from alcohol, drugs and even cigarettes.
  6. According to the probation officer, the Defendant has accepted full responsibility for his actions and has demonstrated genuine remorse.
  7. Attached to the report were a number of references (including from those mentioned above) which I have considered.
  8. The Probation Officer recommends partial suspension on conditions including counselling in prison under Rev. Semisi Kava.

Defence submissions


  1. Ms Mangisi submitted, relevantly and in summary:

Starting point

  1. The maximum statutory penalty for causing serious bodily harm is 5 years’ imprisonment.
  2. In assessing the seriousness of the offending here, one exceptional feature is the Complainant’s apparent consent to the assault. It is significant that, according to Ms Mangisi, the Defendant always intended to plead guilty to this charge but for differences about certain particulars. In other words, it does not appear that he or his counsel ever contemplated defending the charge on the basis of the Complainant's consent. Yet, it is now raised as a purported factor in mitigation.
  3. Absence of consent is an element of any assault. While at common law, consent has been held to be a defence to certain narrow categories of intentionally inflicted harm, this case is not one of them. The issue was considered briefly by Cato J in Police v Hurrel [2017] TOSC 2 where his Honour observed:
“[12] Again, the commentary in Smith and Hogan at pages 420-422 is helpful. For some, but not all assaults, consent can be a defence to an intentional application of force for example murder. Professor Smith discusses limitations on consent to the infliction of physical harm. The law is not clearly settled, as the commentary suggests. See Brown [1992] UKHL 7; [1993] 2 All ER 75, at 79, 86, 106 119 HL, and the criticism of Smith at pg 421, at least in so far as the judgment suggests consent is negated because harm occurred regardless of whether it was foreseen. ...”
  1. Generally, a person cannot consent to being harmed. Thus, if two people willingly engage in a fist fight, their consent to being harmed (at a level greater than assault and battery) by their opponent will not be recognised in law. Consent in that circumstance will ordinarily be deemed invalid on grounds of public policy, even if the victim knows exactly what is being consented to.[3] For example, in Rex v Fangatua [2019] TOSC 49 at [72], Niu J rejected an asserted defence of consent by men agreeing to fight.
  2. However, there are some exceptions[4] such as properly conducted games and sports[5] (but not where the aggressor acts outside the rules[6]); reasonable surgical interference; cosmetic enhancements including tattoos, branding and piercings;[7] and ‘horseplay’ (where consent may be implied).[8] Consent to being harmed for sexual pleasure will not be valid.[9]
  3. Recently, in R v M(B) [2018] EWCA Crim 560, in which R v Brown, ibid, was cited with approval, the UK Court of Appeal opined:
“New exceptions should not be recognised on a case by case basis, save perhaps where there is a close analogy with an existing exception to the general rule established in the Brown case. The recognition of an entirely new exception would involve a value judgement which is policy laden, and on which there may be powerful conflicting views in society. The criminal trial process is inapt to enable a wide-ranging inquiry into the underlying policy issues, which are much better explored in the political environment.”
  1. Here, there has been no suggestion, and nor could there be, that the Complainant’s consent to the injuries inflicted by the Defendant as punishment for her marital indiscretions ought be regarded as a new exception to the general rule. The Defendant’s actions, regardless of his wife’s conduct, were cruel and barbaric. Such behaviour has no place in Tongan society or its marriage norms. That view is consistent with public policy as expressed by Parliament when it enacted the Family Protection Act which seeks to prohibit domestic violence in all its various forms.
  2. For those same reasons, I do not regard the Complainant’s consent, which was obviously misguided, as providing any form of mitigation at this stage of the sentencing exercise.
  3. On the contrary, the fact that the Complainant was the Defendant’s wife is, as was submitted by the Crown with apparent acceptance by Ms Mangisi, a serious circumstance of aggravation not least because of the breach of trust involved. That she had also breached the Defendant’s trust by confessing her infidelity cannot excuse nor does it diminish the seriousness of the offending.[10]
  4. The Defendant’s use of a hammer after he tied the Complainant’s hands and feet and taped her mouth are also grave circumstances of aggravation.
  5. Having regard to those features of the offending, the protracted nature of the assault, the significant injuries suffered by the Complainant, the Defendant’s previous convictions for violence, the statutory maximum penalty and the comparable sentences and principles referred to above, I set a starting point of 3 years and 4 months (or 40 months) imprisonment.

Mitigation

  1. For the Defendant’s guilty plea and remorse, I reduce that starting point by 8 months, resulting in a sentence of 32 months imprisonment.

Suspension

  1. The considerations discussed in Mo’unga [1998] Tonga LR 154 at 157 favour some suspension. The Defendant is not young and he has a significant criminal history including for serious violence, and for which, he received a partly suspended sentence. Against that, he co-operated with police and pleaded guilty at an appropriate time. In a limited sense, any ordeal experienced by the Complainant in giving evidence at trial was her own doing. It is here that any provocation caused by the Complainant’s infidelity may be taken into account as some diminution in culpability.
  2. In relation to Ms Mangisi’s submission to effect that the Defendant is his family’s breadwinner, I repeat what has often been stated, most recently in Police v De Feng Mo [2022] TOSC 81:[11]
“[47] The Courts have repeatedly stated ... that the ‘breadwinner submission’ is one that is constantly raised in the courts of the Kingdom, but which carries little weight in determining whether a Defendant should be sent to prison. Imprisonment will fall hard on the family the Defendant should be supporting, but this Court has commented more than once that such a factor is not the responsibility of the Court: Tukuafu v Police [2001] Tonga LR 151. Such hardship cannot be an overriding mitigating factor in cases where the objective gravity of the offences and the presence of aggravating factors call for a custodial sentence: Rex v Vake [2012] TOCA 7. Further, the fact that the offender is the breadwinner for his family, is not, and is rarely likely ever to be, on its own, a proper reason for suspending a sentence. It may be accepted that, if the respondent goes to prison, the family will suffer. That unfortunately is an all too frequent consequence of criminal offending: R v Motulalo [2000] Tonga LR 311 at 314.”
  1. In this regard, I note that according to the Defendant, the parties’ marriage has now irretrievably broken down with no present prospect of reconciling. While both are struggling with substance abuse, that may be for the best. The material before the Court did not allude to any arrangements in place for the care of the children.
  2. It is often said that when taking the above factors (and others) into account in considering whether, and if so for how long, to suspend part or all of a sentence, the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender.[12] Here, the Defendant’s efforts to combat his drug and alcohol problems and to make positive changes in his life tend to indicate that some suspension is likely to aid in his rehabilitation. However, in order to reflect the seriousness of the offending and give effect to the sentencing objectives particularly of denunciation and deterrence, I consider that only partial suspension is warranted.

Result

  1. The Defendant is convicted of causing serious bodily harm and is sentenced to 32 months imprisonment.
  2. The final 12 months of that sentence are to be suspended for a period of 2 years from the Defendant’s release from prison on condition that during the said period of suspension, he is to:
  3. 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 prison term.

NUKU’ALOFA
M. H. Whitten KC
21 October 2022
LORD CHIEF JUSTICE

[1] The indictment originally alleged that the Defendant had hit the Complainant ‘repeatedly’ with a crowbar and a hammer. The above description of the beating is in accordance with the amendments sought by the Crown.
[2] Presumably referring to his prison sentence for attempted murder.
[3] As in Brown (Anthony Joseph) [1993] UKHL 19; [1994] 1 AC 212, where the House of Lords upheld convictions for offences by a group of homosexual sado-masochists, who had engaged in acts of consensual torture with each other for the purpose of sexual gratification.
[4] As discussed in A-G ref no 6 of 1980 [1981] QB 715.
[5] R v Coney (1882) 8 QBD 534.
[6] R v Billinghurst [1978] Crim LR 553.
[7] R v Wilson [1996] Crim LR 573. However, compare R v M(B) [2018] EWCA Crim 560, [2019] QB 1, in which the Court of Appeal rejected the submission that valid consent could be given by adults to acts of 'body modification' such as tongue splitting, ear removal or nipple excision, performed without anaesthetic by a tattooist with no medical training. Lord Burnett CJ noted that, whereas tattooing and piercing are (like boxing) long-accepted practices, 'deeply embedded in our law and general culture', body modifications of the kind under consideration are not, and such extreme and dangerous operations, which can easily lead to infections, cannot properly be considered analogous to mere tattooing.
[8] R v Jones [1987] Crim LR 123; R v Aitken [1992] 1 WLR 1006.
[9] R v Brown [1993] 2 All ER 75.
[10] Compare ss 89(c) of the Act which provides that an act of adultery committed in the view of the accused person may constitute extreme provocation sufficient to reduce murder to manslaughter.

[11] Referring to R v Wolfgramm [2020] TOSC 78.
[12] Motulalo [2000] Tonga LR 311; Vake [2012] TOCA 7 referring to Misinale [1999] TOCA 12.

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