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R v Tuita [2023] TOSC 37; CR 43 of 2022 (21 April 2023)

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


CR 43 of 2022

REX
-v-
SIOSIFA VAILIMA TUITA


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Lutui DPP for the Prosecution
Ms A. Kafoa for the Defendant
Date: 21 April 2023


Charge

  1. The Defendant appears for sentencing for manslaughter.

Offending

  1. On the morning of Saturday, 5 March 2022, ‘Alilia Lolohea was at her residence in Falaleu, Vava’u. She lived next door to the Defendant and his twin sister, ‘Alisi Tuita. At around 7:35 a.m., ‘Alilia heard a loud cry coming from the Tuita residence. When she got up and opened the door of her residence, ‘Alilia saw the shirtless Defendant running away from his residence. ‘Alilia then walked to the fence of her property where she saw ‘Alisi lying on her verandah floor.
  2. Sela Paea, who also lived nearby, also heard the commotion. She walked to the residence of her neighbour, ‘Iva Tonga, and asked if anything was happening. They then both walked towards a mango tree facing the Tuita property where they also saw ‘Alisi lying face down on the verandah. They called out to her, but she did not respond.
  3. ‘Alilia, Sela and ‘Iva could not enter the Tuita property because they were afraid of the dogs there. So, they decided to fetch the Town Officer, Simoneti Toko, to assist.
  4. Simoneti was at his residence when he was awoken by his wife, Salome, to see the three women outside. They told him to go to the Tuita residence. When they arrived there, Simoneti and Salome tried calling the Police but could not get through due to a poor network connection. When they went onto the verandah, Simoneti found ‘Alisi lying face down close to the door to the living room, in a pool of blood and with a knife lodged in her head.
  5. By this time, the Defendant had gone to the Neiafu Police Station where he spoke with Sergeant Fe’aomoeata. As a result, police attended the residence where they found ‘Alisi’s body and rushed her to hospital.
  6. Dr Mosese Taumoepeau examined the body and found that ‘Alisi died at 7:50 a.m., from a total of nine stab wounds to her chest causing aortic rupture, armpit, back, abdomen and her head where the knife was approximately 5cm into her skull.
  7. On 8 March 2022, the Defendant was examined by Dr Tatafu Tatila at the Neiafu Police Station who opined that he had suffered, but had recovered, from Alcohol Induced Psychosis, and was not relapsing. He recommended therefore that the Defendant be processed as a criminal, and not as a patient.
  8. The Defendant exercised his right to remain silent.

Procedural history

  1. By indictment dated 19 April 2022, the Defendant was charged with murder; alternatively, manslaughter.
  2. On 17 October 2022, the Defendant appeared before Cooper J. His Honour noted that the Accused had a history of mental health problems and that in those circumstances, it was imperative to understand whether the Defendant was fit to enter a plea, and if so, what he believed he was pleading to - i.e. what he thought he had done. The Defendant then gave an account in which, relevantly, he said:
  3. On that basis, his Honour considered that a trial may be required to determine whether the Defendant was legally insane at the time of the offending as provided by s 17 of the Criminal Offences Act, and if so, whether there should be a special verdict pursuant to s 19.
  4. On 19 October 2022, the matter returned before Cooper J. His Honour recorded that there seemed to be no issue as to the Defendant being fit to enter a plea. The Defendant was then arraigned and pleaded guilty to murder. In response to a question from His Honour, the Defendant confirmed the version of events he gave on the 17th. However, his Honour considered the Defendant’s plea to be ambivalent, meaning his version of events did not amount to an admission to either murder or manslaughter and, at the very least, raised a real possibility that s 17 was relevant to the case. He therefore vacated the guilty plea, entered pleas of not guilty to both counts and gave directions for a psychiatric assessment by Dr Mapa Puloka as to whether the Defendant was legally insane, as defined by s 17, at the time of the offending.
  5. At a callover on 10 February 2023, the trial of the proceeding was listed to commence on 6 March 2023. It was anticipated that Dr Puloka would have filed his report before then and be available to give evidence at the trial, if required.

Psychiatric assessment

  1. On 28 February 2023, Dr Puloka provided a forensic psychiatric report, in which he opined, relevantly, that:
  2. On 4 March 2023, the DPP advised that:

the Crown would accept a guilty plea to the manslaughter charge in discharge of the murder count.

  1. On 6 March 2023, when the matter was called for trial, Mr Lutui confirmed the above.
  2. However, before the Defendant was rearraigned, I raised the following with both counsel in chambers.
  3. With all due respect to Dr Puloka, the availability of a partial defence of diminished responsibility, and what constitutes it, are questions of law outside his expertise. He was asked for an opinion as to whether the Defendant was legally insane at the time of the offending by reference to the definition of that concept in s 17 of the Criminal Offences Act. He opined that the Defendant was not legally insane.
  4. In the UK, it has been held that, as a general rule, the Prosecution should accept a plea (and the judge should approve that acceptance) only where there is clear and persuasive evidence of each of the required elements of diminished responsibility. In Robinson v State (Trinidad and Tobago) [2015] UKPC 34 (at [29]), Lord Hughes noted that there are very many cases in practice where it is appropriate to accept a plea, though he also noted that it:
“... remains of great importance that pleas are accepted only in cases where it is proper to do so. Generally that means cases where there is no significant material dispute either of underlying fact or of medical analysis, and moreover it is clear that the defendant's mental responsibility for the killing can properly be described as substantially impaired.”[1]
  1. Here, the issue was not whether it was proper to accept the alternative plea, but rather whether, in Tonga, it was open to the Prosecution to accept it on the basis of diminished responsibility.
  2. Diminished responsibility is not provided for in the Criminal Offences Act, nor is it a creature of the English common law. The defence appears to have its origins in Scottish common law.[2] It was then adopted by England when it enacted s 2 of the Homicide Act 1957 (UK), which provides:

2 Persons suffering from diminished responsibility

(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.

(4) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to it.

  1. The only published decision in Tonga in which diminished responsibility was found to be open to reduce murder to manslaughter was in R v Puli'uvea [1997] Tonga LR 40. That finding was based on the Civil Law Act resulting in s 2 of the UK Homicide Act 1957 [then] being applicable in Tonga.
  2. However, in 2003, the Civil Law Act was amended by deleting future incorporation of English statutes as part of the Tongan legal fabric. The result is that the Courts shall apply only English common law and rules of equity where a matter is not provided for by Tongan statute and only so far as the circumstances of the Kingdom permit and local circumstances require.
  3. In Tui v R [2007] Tonga LR 135, the Court of Appeal rejected a plea of diminished responsibility on a charge of arson where the offender was said to be affected by a combination of asthma medication and excessive alcohol together with a history of alcohol induced blackouts. That rejection was based on a psychiatrist's report that the appellant knew what he was doing at the time of the commission of the offence and the fact that he was drunk was no excuse nor could it be used to mount a submission of diminished responsibility. However, the Court of Appeal did not consider, and the issue does not appear to have been raised, whether diminished responsibility is available in Tonga. In my opinion, it is not.
  4. Thus, the only partial defence currently recognised in Tonga for reducing murder to manslaughter is that of extreme provocation as provided by ss 88(a) and 89 of the Criminal Offences Act. None of the circumstances described in those provisions were suggested to apply to the instant case.
  5. Accordingly, I respectfully suggest that the Legislature give consideration to amending the Criminal Offences Act to include a partial defence of diminished responsibility.
  6. A further issue arose as to whether, in light of the Defendant’s mental disorder, the requisite mental elements within ss 87(1)(a) – intention to kill - or (b) – intention to cause bodily injury which the offender knew was likely to cause death and was reckless whether death ensued or not - could be proven beyond reasonable doubt. The Defendant’s different versions to Cooper J and Dr Puloka were also regarded as relevant to this issue.
  7. To allow counsel time to consider those matters further, the commencement of the trial was deferred to 7 March 2023.
  8. By email on the evening of the 6th, Mr Lutui advised that pursuant to instructions from the Attorney-General, the Crown maintained its acceptance of a guilty plea to the manslaughter charge, principally because, on the evidence, there would be “difficulty in proving the mental element for reckless murder”, and as such, there was “little to no reasonable prospect” of obtaining a conviction for murder.
  9. On that basis, the plea was accepted, and directions given for sentencing.

Crown’s submissions

  1. The Crown’s submissions may be summarised as follows.
  2. The offending is marked by the following aggravating features:
  3. The mitigating features are the Defendant’s guilty plea to manslaughter and his “disordered state of mind”.
  4. The Crown referred to the following comparable sentences:
  5. The Crown submits that any reliance by the Defendant on provocation by the deceased should be rejected for two reasons. Firstly, provocation, to any extent, did not inform the Crown’s decision to accept the manslaughter plea. Secondly, for the purpose of this issue, the Crown is prepared to accept the Defendant’s version of events to the probation officer that he was not aware of his actions on the day in question, in which case, he cannot seek to rely on any conduct by the deceased as amounting to provocation. Alternatively, the Crown submits that if the conduct of the deceased, by threatening the Defendant to be sent back to the psychiatric ward, is accepted by the Court as a trigger for the offending, then if that conduct be characterised as provocation, it was very minimal and very little weight should be given to it for the purposes of sentencing.
  6. The Crown submits the following as an appropriate sentencing formulation:

Defence submissions

  1. Ms Kafoa filed submissions on behalf of the Defendant which may be summarized as follows:

Presentence report

  1. The presentence report contains the following further information in relation to the Defendant and the offending.
  2. The Defendant is currently 52 years of age. He is one of three children, and as noted, the victim was his twin sister. He grew up in a good family. He and ‘Alisi were close when they were younger but gradually drifted apart when they started high school. As a result, they argued often and ‘Alisi often ‘won’ when they fought.
  3. The Defendant began drinking alcohol when he was in high school and, despite being beaten by his father for it, his consumption gradually increased over time. He dropped out of school in Form 4 and took a job with Tonga Power. Once he began to earn money, his alcohol consumption worsened to the point where alcohol was more important to him than work. As a result, he was fired.
  4. In 1995, the Defendant married. He and his then wife had one daughter. Two years later, they divorced, and the wife and daughter moved overseas due to the Defendant’s drinking habit. Thereafter, the Defendant drank almost every day. After his parents died, he began begging on the streets to fund his drinking. He lost all connection with his family’s church because of his addiction to alcohol.
  5. According to his half-brother, the Defendant is a person who does not listen to anyone and believes that what he does and knows is best. Prior to the incident, the Defendant reportedly began experiencing hallucinations of deceased people. ‘Alisi reported him to the doctor, and he was admitted to hospital
  6. The Defendant gave the probation officer the following account in relation to the offending. ‘Alisi was home when the Defendant returned after a day on the streets. She frequently scolded him and threatened him with arrest. The Defendant claimed that he was unconscious when he committed the crime and that he had no idea what he had done until the police apprehended him.
  7. The Town Officer, Simoneti Toko, recalled being with the Defendant on the day in question at Falaleu Community Police. It was during the Covid-19 Lockdown, and there was no access to alcohol. Simoneti described the Defendant as being in a good mood. He told the Defendant that when the Community Police received vests from the Government, he would make sure the Defendant got one. Simoneti also recalled seeing the Defendant at the hospital when he and his wife took ‘Alisi’s body there. He observed that the Defendant, who was receiving treatment for injuries to his fingers, did not appear to be affected by alcohol at the time.
  8. During his interview with the probation officer, the Defendant showed no signs of remorse or regret for what he had done. His attitude was expressed by his repeated statements to effect that ‘only God could justify what he did and that He is the only one who can release him from prison on sentence day, which he knows He will’. Instead, the Defendant focused on the impact of alcohol on his life and how he became tired of being threatened by ‘Alisi with being returned to the Psychiatric Ward, because when he was previously admitted, “it would take a long time for him to be released” due to the lengthy process. When the probation officer asked the Defendant whether he had anything else to say, hoping that he might express some remorse, the Defendant told the officer to mention in his report that he did not like the ‘sudden change of Judges’.
  9. The probation officer opined that from the Defendant’s time remanded in custody, he presented as a ‘normal person without any sign of alcohol addiction’ and that imprisonment will provide the Defendant with ‘boundaries, freedom from addiction, and the ability to reflect on his actions’.

Starting point

  1. The maximum statutory penalty for manslaughter is 25 years imprisonment.[4]
  2. The approach to be taken is well informed by the following observations of the Court of Appeal in Tu’itavake v R [2005] Tonga LR 348:
“[12] Sentencing in cases of provocation presents special problems to a sentencing Judge. As in all cases of manslaughter there can be no set tariff. In each case the task of the Judge is to determine the true culpability of the offender in the particular circumstances of the case.
[13] Appellate Courts in this and other countries have affirmed that sanctity of life is a fundamental value and society demands that the taking of life be met with the appropriate condemnation. But that still requires that the sentence imposed be related to the circumstances of the particular offence and the particular offender.
[14] An appellate Court must also bear in mind that the sentencing Judge, who has had the advantage of hearing the evidence, has a broad discretion as to the appropriate sentence.”
  1. Reference was also made in that case to the New Zealand Court of Appeal in R v Leuta [2001] NZCA 283; [2002] 1 NZLR 215 as affirmed in R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 at [128]:
"Culpability is higher in cases where manslaughter results from intentional harm. In such cases, the sentence imposed must reflect the need for deterrence of intentional conduct which risks serious harm or death. Other factors such as provocation or circumstances personal to the offender, which may diminish responsibility, may affect culpability significantly. Sentences in other cases where the death giving rise to liability for manslaughter as a result of intentional violence may provide guidance. But the culpability of each offender needs to be assessed in the particular context."
  1. The offending here can only be characterised as a heinous and tragic crime of extreme brutality.
  2. While the sentences in Tu'itavake and Vaomotou are of assistance, there are, in my view, important distinguishing features between them and the instant case.
  3. In Tu’itavake, the markedly reduced sentence on appeal was due, among other things, to a high degree of provocation and remorse demonstrated by a considerable degree of restitution made by the appellant to the deceased's family. The Court of Appeal also referred to the New Zealand Court of Appeal’s decision in R v Edwards (CA 371/04; 13 April 2005) where that Court discussed and referred to a ‘Consultation Paper on Sentencing of Manslaughter by Reason of Provocation’ by the British Sentencing Advisory Panel published in March 2004 in which the panel considered in detail some 42 cases between July 2000 and June 2003 where juries had returned convictions for manslaughter on the grounds of provocation and also reviewed appellate authorities. The panel concluded by summarising the following sentencing ranges (after a contested trial) to the extent that they may exist:
Case features
Sentencing range
[1]
Firearm carried and used after retaliation
12 years
[2]
Knife carried and used or great brutality
10 to 12 years
[3]
Moderate provocation and sudden retaliation
7 years
[4]
A high degree of provocation, sudden retaliation, strong mitigation
5 years
[5]
The highest degree of provocation including violent attack, even terror, evoking extreme passion
3 years or less

The offending in Tu’itavake was placed within category 4.


  1. In Vaomotou, which has closer parallels to the instant case, there was also an element of provocation by the deceased apparently having formed an association with another man although the Court noted the absence of any provocation at the time of the attack. The offender there also suffered from a form of mental disorder although that seemed to have been related to his separation from his wife and his belief that she was having a relationship with another man. The victim there was asleep at the time of the attack and there was no suggestion that she woke during it. Here, the Defendant’s reported mental disorder is due to his self-inflicted long term excessive consumption of alcohol to the point of addiction and psychiatric disorder, and not anything his sister did or did not do. By further contrast, ‘Alisi was conscious when she was suddenly attacked by her brother; she cried for help; and it may be inferred that she suffered the agony and trauma of the repeated stabbing until she lost consciousness. The fact that the last strike of the knife was into her head, and left there, also reflects extreme anger and hatred.
  2. Those comparisons highlight two issues here, namely, whether and if so, to what extent, any provocation by the victim and/or the Defendant’s alcohol related mental disorder should be considered in assessing his culpability.
  3. In relation to provocation, the Court of Appeal in Tu’itavake noted:
“[11] Sentencing in cases of provocation presents special problems to a sentencing Judge. As in all cases of manslaughter there can be no set tariff. In each case the task of the Judge is to determine the true culpability of the offender in the particular circumstances of the case.”
  1. Recently, in R v Pahulu [2022] TOSC 1 at [64] ff, Cooper J considered the United Kingdom’s Sentencing Council Guidelines for manslaughter by reason of provocation. In considering factors influencing sentence, the Council regarded the critical factor as being the degree of provocation by its nature and duration. In assessing the degree of provocation, a number of considerations were identified, including, relevantly:
  2. As his Honour noted, those considerations are consistent with the approach in New Zealand as discussed in Wairau v R [2015] NZCA 215, adopting Hamidzadeh v R [2012] NZCA 550, where it was held that it is no longer essential to establish that the provocative conduct of the victim would have deprived an ordinary person, with the attributes of the defendant, of the power of self-control. Loss of control is still a factor relevant to culpability. Offending resulting from a "sudden and justified loss of self-control" may, depending on the circumstances, be viewed as less culpable than one involving a "calculated and controlled response". A flexible approach is required. The evaluation in provocation sentencing is fact dependent. Relevant factors may include the nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender's response; whether the offending occurred through fear rather than anger; whether there is any issue of intellectual impairment involved; whether the offender has previously been the subject of physical or sexual abuse bearing on overall culpability; and whether the provocative conduct was such as to reduce the offender's culpability in all the circumstances.
  3. Tu’itavake and Vaomotou are illustrative of conduct which has been recognised by the Courts as constituting provocation for the purposes of sentencing for manslaughter. Such conduct tends to range from clear illegality such as serious assaults by the victim to some form of moral wrongdoing (actual or perceived) such as an extra-marital affair.
  4. Apart from disputing the Crown’s contention that there was no or minimal provocation by the victim here, the submissions on behalf of the Defendant did not develop or elucidate this issue.
  5. For the reasons which follow, I am of the view that the Defendant’s complaints of his late sister’s frequent scolding of him for his drinking and threats to have him returned to the psychiatric ward do not fall within the spectrum of conduct which might be regarded as provocation sufficient to reduce his culpability in any significant way.
  6. The Defendant’s history of repeated admissions to hospital between 2018 and 2020 demonstrate that he must have relapsed each time by returning to drink. Each time, his family, including ‘Alisi, took responsibility for ensuring he received the medical care he obviously and desperately required. Unfortunately, Dr Puloka’s report did not contain any explanation as to why the Defendant was released on each occasion or what, if any, medication or other ongoing treatment he might have been prescribed. The Defendant’s numerous readmissions suggest there was none (or none available) other than abstinence.
  7. Against that background, the next question is whether the Defendant’s account of what ‘Alisi said on the day in question may be regarded as accurate. I say that because the Defendant’s varying accounts of what happened tends to undermine the reliability of his recollection which Dr Puloka described as ‘selective amnesia’. The Crown also notes that if the Defendant’s version that he did not recall what happened is to be accepted, it must follow that he could not have been ‘triggered’ by anything ‘Alisi said. Conversely, and in order to consider the issue comprehensively, a number of observations may be made on ‘Alisi’s so-called threats to have the Defendant returned to hospital.
  8. Firstly, her statement must have been made in the context of the Defendant continuing to drink. If it wasn’t, then any ‘threat’ was hollow, because of the inherent unlikelihood of any doctor admitting a sober man to inpatient psychiatric care for an historic alcohol disorder if he was truly in remission. That is also consistent with reports of him begging on the streets for money to buy alcohol but is admittedly less consistent with the town officer’s account of seeing the Defendant around the relevant time not apparently affected by alcohol.
  9. Secondly, and in any event, telling the Defendant that if he continued to drink, he would be returned to hospital was hardly an act of cruelty or oppression - it was an act of love. The Defendant’s family could well have been rejected him and evicted him from their home for him to fend for himself. Instead, ‘Alisi continually reminded him of the necessary consequences if the Defendant continued to drink.
  10. Thirdly, those aspects of what was reportedly stated may well be understood by a normal person without an alcohol related mental disorder. But what of a person in the Defendant’s condition? There is scant evidence as to whether the Defendant was affected by recent alcohol consumption at the time. In other words, it may be accepted that he was likely to have been sober at the relevant time.
  11. Fourthly, Dr Puloka described the Defendant as having developed a ‘siege mentality’ to the regular threats from his sister and other family members. However, the report does not explain how that might have affected the Defendant’s interpretation of what ‘Alisi reportedly said by causing him to ‘erupt with anger’ to the point of taking a knife and stabbing her to death. The report did contain the Defendant’s account of how he had reacted in the past by drinking more alcohol or leaving the house for a time or both. That he did not do so on this occasion shows that he suddenly decided to end the threats through violence. It will also be recalled from the presentence report that the Defendant’s real interpretation of the threat of being readmitted to hospital was one of annoyance because of the time it took on each previous occasion for him to be released.
  12. All of those observations, stemming from the Defendant’s proclaimed ‘siege mentality’ lead to one obvious question: besieged by what? It seems to me that the most likely answer is that any threat perceived by the Defendant was not the prospect of having to return to hospital per se but rather that in that event he would be denied access to alcohol. It was that prospect that caused the Defendant to lose control. The only threat therefore posed by ‘Alisi was to the Defendant’s access to alcohol. And for that, he took her life.
  13. For those reasons, and for the primary reason submitted by the Crown, I do not consider that any or any significant reduction should be made to the assessment of the Defendant’s culpability on the grounds of purported provocation. I am also fortified in that analysis by the Defendant’s lack of remorse. In that regard, I prefer the probation officer’s observations as more reliable and accurate than that conveyed by the Defendant’s counsel.
  14. I turn now to the Defendant’s mental disorder. A Court is entitled to take into account a Defendant’s mental disability in determining his level of culpability: Rex v 'Ahoafi [2016] TOSC 10.[5] However, the difficulty in this case is that the basis upon which the Crown accepted the Defendant’s plea to manslaughter is almost impossible to reconcile with the objective evidence. On the one hand, the Defendant’s culpability is to be assessed on the basis that he did not know that his actions were likely to cause death; while on the other, the Defendant’s versions included him recalling his sister scolding him immediately before he attacked her and then after the attack going to the police station and telling them that she had been hurt. His recollections then vary most in relation to what happened in between ranging from complete ‘blackout’ to remembering that he inflicted two of the nine wounds, the last of which was sufficiently powerful and ferocious for the knife to penetrate the victim’s skull and brain. Those and other aspects of the Defendant’s varying accounts, including where he said he dropped the knife on the floor before fleeing the house which was clearly contradicted by it being found still lodged in the victim’s head, and as characterised by Dr Puloka as selective amnesia, has left me ambivalent about the extent to which any mental disorder played a part in the offending.
  15. Further, in my view, the effects of the disorder have, to a large extent, already been taken into account by the Crown’s acceptance of the guilty plea to manslaughter in satisfaction of the murder charge. To add any significant reduction to the Defendant’s culpability at this stage of the sentencing exercise would amount to a double concession for the same condition. I propose, however, to consider this issue further on mitigation.
  16. Having now determined those issues, and I now turn to consider a number of other comparable sentences for manslaughter involving extreme violence without any or any significant provocation as discussed in R v Maile [2021] TOSC 119 and R v Tapueluelu [2021] TOSC 140, such as:
  17. In Maile, ibid, the drunk, elderly victim tried to affectionately hug the young Defendant from behind three times, while they were walking along a road, which the Defendant was able to just shrug off. On the last occasion, the Defendant turned and punched the victim once in the face causing him to fall backwards, hitting his head on the road, which resulted in his death. A jury found the Defendant guilty of manslaughter. A starting point of 10 years’ imprisonment was set.
  18. In Tapueluelu, ibid, the Defendant and victim were heard arguing about a t-shirt. The victim was facing a stove cooking with his back to the Defendant. Without warning, the Defendant punched the victim to the back of his head causing him to fall to the floor in a sitting position. There followed a sustained attack whereby Defendant then hit the victim on the head with a frying pan, then punched and kicked the victim’s head while he was on the floor, and then as the victim was trying to shield himself with his hands, the Defendant picked up a small steel stove and bashed him with it, eventually killing him. For what was described as the grave seriousness and abject brutality of the offending, a starting point was set of 14 years’ imprisonment.
  19. After considering the maximum statutory penalty, the submissions, principles, issues of provocation and mental disorder and the comparable sentences referred to above, I have come to the view that the seriousness of the offending, marked by the extent of the brutality, lack of any real provocation by the victim or remorse by the Defendant, and thus the Defendant’s culpability, is slightly greater than that in Vaomotou, Nai, Taufahema or Tapueluelu.
  20. For those reasons, I set a starting point of 16 years imprisonment.

Mitigation

  1. The Defendant is to be allowed a discount for his guilty plea to manslaughter. I also take into account that but for Cooper J’s astute intervention, the Defendant was prepared to plead, without legal advice or representation, guilty to murder. In that regard, I commend this case to Government as yet another example of the potential for travesties of justice resulting from a lack of a full legal aid service, particularly for serious criminal prosecutions.
  2. The Defendant does not have a clean previous record. In that regard, I note the references to him being violent while drunk. Otherwise, he is not reported to have had any serious convictions for such behaviour.
  3. Finally, I allow some further discount for the Defendant’s mental disorder. While, as noted above, the evidence is unclear as to what, if any, part the addiction related disorder played in the offending, and is even less clear as to whether it would have occurred at all had the Defendant not been so afflicted, I am satisfied that it is appropriate to make some allowance for it in mitigation.[6]
  4. Taking all those matters into account, I reduce the starting point by four years.
  5. The resulting sentence of 12 years imprisonment is consistent with category 2 of the Edwards ranges, which, despite the Defendant’s guilty plea, appropriately reflects the ‘great brutality’ involved.

Suspension

  1. Few of the considerations discussed in Mo’unga v R [1998] Tonga LR 154 favour suspension here. The Defendant is not young, he does not have an unblemished record, he did not fully co-operate with the authorities, and he has expressed no remorse.
  2. Against that, however, there is no evidence of premeditation, there is some diminution in culpability by reason of the Defendant’s mental disorder, and there are some prospects for rehabilitation through enforced abstinence from alcohol while in prison and ongoing psychological and other treatment.
  3. For those reasons, I consider it appropriate to order that the final two years of the sentence be suspended.

Result

  1. The Defendant is convicted of manslaughter and sentenced to 12 years imprisonment.
  2. The sentence is to be backdated to 7 March 2023 when the Defendant was remanded in custody.
  3. The final two years of the sentence are to be suspended for a period of two years from the date of the Defendant’s release from prison on condition that he:
  4. The other suggested psychological treatments and spiritual care will be matters for discussion between the relevant providers and the Commissioner of Prisons at the appropriate times.
  5. Failure to comply with any of the above 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 April 2023
LORD CHIEF JUSTICE

[1] From Blackstone's Criminal Practice 2023, Part B Offences, Section B1 Homicide and Related Offences, Diminished Responsibility, B 1.30.

[2] New Zealand Law Commission, Preliminary Paper 41, Battered defendants victims of domestic violence who offend, 7. Diminished responsibility: http://www.nzlii.org/nz/other/nzlc/pp/PP41/PP41-7_.html

[3] The Defendant should be kept in custody at Hu’atolitoli Prison; referred to the Salvation Army as part of his psychosocial intervention; have access to spiritual teachings from the Prison Chaplin; and be admitted to the Psychiatric Unit at the Vaiola Hospital several years before he is released from Prison, where he will have access to psychological treatment.

[4] s 93 of the Criminal Offences Act.

[5] Citing Fa'aoso v R [1996] TLR 42, at 45; Taufa v R (AC 17/04).

[6] Recently, in Attorney General v Uaine Palesi Fa (AC 26/22, 6 April 2023), the Court of Appeal cited Zhang v R [2019] NZCA 507 at [137] where it was held that in an appropriate case, a pre-existing addiction may be regarded as a circumstance of mitigation.

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