R v Hokafonu [2023] TOSC 26; CR 17 of 2023 (28 April 2023)

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

CR 17/2023

REX
-v-
SIONE HOKAFONU

SENTENCING REMARKS

Before: Justice P. Tupou KC
Appearances: J. Fifita for Prosecution
Defendant in person
Date: 28 April, 2023

The charges

1. On 9 February, 2023, the Defendant pleaded guilty to two counts of serious causing bodily harm, contrary to section 107(1), 2 (c) of the Criminal Offences Act and one count of common assault contrary to s. 112(a) of the said Act.

The offending

2. At the time of the offending, the Defendant was married to the complainant for 10 years and had 2 children with her. They lived at Houma.
3. On 2 November, 2022 the Defendant was dropping the complainant to her parents’ home at Halaleva. While there, the Defendant saw a post on Facebook on “Fanguna Online Reincarnation” alleging the complainant was having an affair with another man.
4. The Defendant told the complainant to return with him to Houma. When they arrived at their home, the Defendant pushed the complainant into the house saying he had something to ask her and he will beat her up.
5. The complainant asked what was going on and was shown a screen shot of the said Facebook post. The complainant denied the allegation was true as the Defendant grabbed an aluminium shear (described in the tongan version as an iron cutter) and stabbed the complainant’s lower back region.
6. When the complainant pushed him back, the Defendant grabbed a screw driver and stabbed the complainant’s right hand with it. She jumped at him causing him to drop the screwdriver. He grabbed a crow bar and hit her back with it. They wrestled for a while and then stopped to discuss the post.
7. The complainant admitted to kissing the guy. The Defendant grabbed hold of the crow bar again and hit the right side of the complainant’s head with it causing her to become dizzy, feel faint and fall down.
8. The Defendant continued to grab an axe and threatened her to tell him the truth, hitting her left knee with the axe. He continued to hit her until he saw blood oozing from her left knee.
9. The Defendant denied the complainant’s requests to be taken to her parents’ home to treat her wounded knee.
10. When he left for work on 3 November, 2022 the complainant fled to an election polling station at Houma and the police officers present took her to the hospital.
11. At the hospital Dr. Siosifa Teumoehenga attended to her and confirmed that the complainant sustained a deep wound with a 4-6cm laceration on the left knee; bruises on her left forearm, bruises on her back and a punctured wound on the right palm of her hand from the Defendant’s attacks.
12. The complainant lodged a complaint and on 7 November, 2022, the police seized the axe, crow bar, iron cutter and screw driver from the Defendant and complainant’s home at Houma. The Defendant admitted the offending when he was interviewed on the same day.
13. The Defendant held 3 previous convictions for common assault in 2011 and 2017.

Crown’s submissions

14. The Crown submitted the following as aggravating factors:
    1. the Defendant’s previous convictions for violent offences;
    2. the offending was premeditated;
    100. it was a continual sustained attack using three different weapons;
    4. the Defendant detained the complainant against her will; and
    5. the Defendant did nothing to ensure the complainant’s injuries was treated.
15. The Crown noted the mitigating factors to be;
    1. the Defendant’s early guilty plea and cooperation with the police;
    2. the complainant has fully recovered;
    100. the offending was prompted by the complainant’s wrong doing;
    4. the Defendant has shown remorse; and
    5. the parties are still married and live together.
16. The Crown relied on the following comparable sentences:
    1. R v Toio Lauteau (CR 183 of 2019) – the Defendant in this case hit his wife with a rock hammer on the forehead and the back of her head. She sustained serious injuries. Justice Niu, sentenced the Defendant to 3 years imprisonment with the final 2 years being suspended on conditions.
    2. R v Unise Toki ( CR 2 of 2021) – the Defendant pleaded guilty to cuasing grievous bodily harm contrary to s.106 of the Criminal Offences Act. She was in a de facto relationship with the complainant. The Defendant repeatedly hit the complainant with a machete on his head and hands while he was drunk and helpless. The offending caused serious injuries to the complainant. She had no previous convictions, pled guilty at first opportunity, was remorseful, had been forgiven by the complainanat and cooperated with the police.

She was sentenced to 2 years imprisonment and was fully suspended on conditions.

100. R v Angelina Davo Latu (CR 95 of 2022 - the Defendant pleaded guilty to one count of causing serious bodily harm when she poured a jug of boiling water on her husband’s thigh and groin area. A starting point of 2 years imprisonment was set with a deduction of 12 months in mitigation. The sentence was fully suspended for 1 year and 6 months on conditions.

17. The Crown proposes a starting point of 2 years imprisonment to be increased by 12 months to reflect the seriousness of the offending, i.e, the use of 3 different weapons ( axe, screw driver and crow bar), level of premeditation involved, detaining the complainant against her will and for the previous convictions.
18. The Crown proposed a reduction of 6 months in mitigation resulting in a final sentence of 2 years and 6 months imprisonment with the final 6 months suspended for a period of 2 years on conditions.
19. In respect of count 2 a proposed sentence of 12 months imprisonment and count 3 a sentence of 6 months to be served concurrently to count 1.

Pre -Sentencing Report

20. The Defendant is 29 years old. He grew up in a stable home and is the youngest of 9 siblings. He lives and cares for his mother and 3 other siblings at Houma. Six of the Defendant’s siblings reside abroad. Their father had passed on. They are active members of the Tokaikolo Christian Church.
21. The Defendant is currently enrolled in a 4 year Trade Certificate Program in Automotive Light Vehicles Engineering with the Tonga Institute of Science and Technology. A letter from the Deputy Principal confirmed that he has completed stages 1 and 2 and must complete 1200 hours of practical skills development training to progress to stage 3 of the course. He has been enrolled since 2020 which means he will complete the course in 2024.
22. The town officer of Houma provided a letter of support and described the Defendant as a good standing member of the community. He was in charge of the security base in his block at Houma during the covid-19 emergency period. He said that he is a kind young man, evident from his overseeing the care of his mother.
23. The Defendant and complainant’s children are aged 10 and 9. Their 10 year old daughter lives with the complainant’s mother while their 9 year old son resides with them.
24. The complainant and the town officer asserted that the Defendant has not shown any violent behavior and possess no criminal records. This is inaccurate as the records show 4 previous convictions for violence, 3 against the complainant.
25. The Defendant’s version of the offending was that he was upset about the Facebook post about his wife because of an incident that had occurred the weekend prior. While he was at work at the Hahake (eastern) district, the complainant had gone out with friends to the Billfish bar. He went and met her there and was mad because she was “not behaving”. He went back to Hahake that night.
26. On returning from Hahake that Saturday, he saw the complainant travelling in a car with a male person. He chased after them and bumped the car from the back damaging it. They argued and the complainant told him he was her sister-in-law’s cousin. They took the male person to Lapaha and returned to Houma where the offending occurred.
27. After his release from prison, the Defendant apologized to the complainant and her mother and he was forgiven. The Probation Officer was convinced that the Defendant was truly remorseful and wants to do the best by his family. He intends to complete his training and is apparently eligible for a scholarship to Australia.
28. The Probation Officer has assessed the Defendant as “low-risk” in re-offending and recommends a fully suspended sentence on conditions to include 100 hours of community work.

Starting point

29. Section.107 of the Criminal Offences Act provides that the maximum statutory penalty for causing serious bodily harm is five years imprisonment.
30. Section 112 of the said Act provides the maximum statutory penalty for common assault is a fine not exceeding $5000 or 1 year imprisonment or both.
31. Count 1 is the headcount and relates to the striking of the complainant’s left knee with the axe. It caused a deep wound with 4-6cm laceration.
32. Count 2 relates to stabbing the complainant’s right palm with a screw driver causing a “puncture wound” on the right palm of her hand.
33. Count 3 relates to hitting her with the crow bar without her consent. This hit was to the head causing the complainant to feel dizzy, faint and fall to the ground.
34. In the recent case of Rex v Kaati Luka (CR 20 of 2021), the parties were in a de facto relationship. The female complainant found the male Defendant having sex with another woman. The Defendant claimed she shouted rude comments at him that were too hurtful that angered him to a point where he could not control himself. He chased the female complainant as she tried to escape and repeatedly assaulted her. He did not stop until his mother tackled him. The complainant was hospitalized for her injuries which were extensive.
35. A starting point of 2 years and 6 months was set with a deduction of 10 months for the Defendant’s lack of previous convictions and early guilty plea, resulting in a final sentence of 20 months imprisonment. The final 8 months of the sentence was suspended on conditions for the Defendant’s youth, good record, cooperation with the police and the likelihood that he will use the suspended period to rehabilitate himself.
36. Niu J in Lauteau referred to the principles in R v Fatani [2005] Tonga LR 470, which has been endorsed by this court on numerous occasions, where McElrea J said:

“In these circumstances it is important that the sentence imposed in this case sends the right message to other men, namely that those who beat their wives and cause serious injury can expect to go to prison. In this case the deterrent aspect of sentencing is an important one – but I believe that a sentence of imprisonment is also required to denounce strongly this type of conduct on behalf of all society, and to try and protect the community by making it safer place for women and other vulnerable people”.

37. Those principles were echoed by Cato J in Rex v Naufahu (CR14 of 2016)^[1], where he said:

“The principal sentencing rationale in cases like this is the protection of victims of violence, deterrence of the prisoner and others in the community from this kind of offending towards women, denunciation of callous and cruel actions like this, and appropriate retribution.”

38. His Honour went on to say, he did not think any marital infidelity or suggestion of it on the part of the complainant reduced the objective seriousness of the offending and did not see fit to take it into account in reducing the starting point.
39. Returning to the instant case, it has to be in the worst category of cases involving domestic violence that has come before this court. The Defendant’s use of an iron cutter, screw driver, crow bar and an axe to inflict injury on the wife who has borne him 2 children and then proceeding to detain her in the house against her will, and refusing her request to have her injuries treated, is in my view, the essence of callousness and cruelty Naufahu refers to.
40. The Defendant’s conduct wholly confirms LCJ Whitten QC’s remarks in Luka that:

“Times have definitely changed; unfortunately, in relation to domestic violence, for the worse.”

41. The principles of deterrence to men or women who intend to exert violence on their partners, denunciation of such behaviour, the protection of women and vulnerable persons and providing a safer environment for them is the paramount consideration in these cases.
42. Accordingly, having regard to the seriousness of the offence and the principles referred to above, the relevant comparable cases and the maximum statutory penalty, I set a starting point of 2 years imprisonment for count 1. I add 1 year for the use of 4 different weapons and using the crow to the complainant’s head and 6 months for detaining the complainant against her will, his refusal to assist with her injuries and the embarrassment she must have been exposed to in bursting into a public polling station to seek help in her condition, resulting in a starting point of 3 years and 6 months imprisonment.

Mitigation

43. By way of mitigation, I take into account the early guilty plea, co-operation with the Police and his alleged remorse and deduct 12 months, resulting in a final sentence of 2 years and 6 months imprisonment.
44. Notwithstanding the above, I must note my reservations about the complainant’s full recovery given the possible mental and emotional trauma inflicted as a result of such a brutal attack and with sharp and heavy objects at that. Similarly, that her forgiveness may be forced on the basis that she is the complainant in 3 of the assault convictions on his record but had told the Probation officer that she did not know any “type of violence nature in his life since she knew him”.
45. I adopt Cato J’s view in Naufahu and make no deduction for the complainant’s alleged affair. I also note for the record that where the Defendant’s version of the facts differ from the summary of facts, I accept the summary of facts over the Defendant’s version of the offending on the basis that it was not disputed.

Suspension

46. The pre-sentencing report recommend a full suspension Having considered the applicable principles in Mo’unga^[2] for suspsension. I do not agree. I accept the Crown’s submission that the Defendant is entitled to have only a portion of his sentence suspended for his youth, cooperation with the police, and I suspend the final 12 months of his sentence on conditions.

Result

47. The Defendant is convicted for:
    1. Count 1 – sentenced to 2 years and 6 months imprisonment;
    2. Count 2- sentenced to 12 months imprisonment;
    100. Count 3 – sentenced to 6 months imprisonment.
48. Counts 2 and 3 will be served concurrent to Count 1.
49. The final 12 months on Count 1 is to be suspended for a period of 2 years from his release on the following conditions, namely, that during the said period of suspension, the Defendant is to:
    1. not commit any offence punishable by imprisonment during the period of suspension;
    2. be placed on probation;
    100. report to the probation office within 48 hours of his release;
    4. complete anger management courses as directed by his probation officer.
50. The Defendant is warned that failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant may be required to serve the suspended sentence.
    

P. Tupou KC

JUDGE

NUKU’ALOFA

28 April, 2023

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^[1] A case involving the more serious charge of causing grevious bodily harm.
^[2] Mo’unga v Rex [1998] Tonga LR 154