R v Kali [2023] TOSC 44; CR 87 of 2023 (28 August 2023)

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

CR 87 of 2023

REX
-v-
‘ATUNAISA KALI

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Lutui DPP for the Prosecution
The Defendant in person
Date: 28 August 2023

Charge

1. On 17 July 2023, the Defendant pleaded guilty to causing grievous bodily harm, contrary to ss 106(1) and 2(c) of the Criminal Offences Act.

Offending

2. Feleti Hafoka and his wife Halina live in Popua in a separate house on the Defendant’s allotment. The Defendant is Halina’s father. On the afternoon of 11 March 2023, Halina left the residence. She did not come home that night. The next day, Feleti was cooking food in their backyard when he noticed Halina at her parent's house. He asked her where she had been. That led to an argument. As Feleti turned to leave the house, the Defendant attacked him with a short samurai sword.^[1] Feleti raised his left hand to defend himself and the blade slashed his wrist, resulting in a deep laceration, fracture to his Hamate bone, and damage to one of his extensor tendons. He was taken to hospital where he underwent surgery.
3. On 14 March 2023, the Defendant was arrested and charged and admitted to the offending.
4. On 18 March 2023, Feleti was discharged from hospital. His injuries took about six months to fully heal albeit with significant scarring. No other residual deficit has been reported.

Relevant previous convictions

5. On 23 March 1994, the Defendant was convicted in the Magistrates Court of bodily harm and assault, and sentenced, relevantly, to 3 months imprisonment, fully suspended for 3 years.^[2]

Prosecution submissions

6. The Prosecution submits that the offending was aggravated by the severity of the injury to the victim, the use of a dangerous weapon,^[3] the Victim was the Defendant’s son in law and the attack was unprovoked.
7. By way of mitigation, the Defendant co-operated with Police, pleaded guilty at the earliest opportunity and he has been free of crime for over two decades.
8. The Prosecution referred to the following comparable sentences:
   • (a) Kaumavae Fakaanga (CR 172/2021) – the Defendant attacked the Victim with a machete causing lacerations to his scalp and damage to the bones and nerves of his arm. As a result, his hand became infected and had to be amputated. The Defendant pleaded guilty on the last day of his trial. He had previous convictions in 2013 for similar offending. A starting point of 7½ years was set, of which, 6 months was deducted for the late guilty plea. The final year of the resulting 7 year sentence was suspended.
   • (b) Tupou v Rex (AC 16/2018) - The Defendant pleaded guilty to attacking two men with a machete, causing both multiple lacerations, fractures and damage to tendons. He was sentenced to 6 years imprisonment with the final 2 years suspended. He appealed on the grounds that the sentencing judge did not consider the existence of provocation. The Court of Appeal disagreed and held that the judge’s composition of the overall effective sentence was appropriate given the seriousness of the offending and the prevalence of the use of dangerous weapons like machetes.
9. The Prosecution submits the following as an appropriate sentencing formulation:
   • (a) having regard to the authorities on offences involving edged weapons, the number of strikes,^[4] the severity of the injuries inflicted, and the other aggravating features, an appropriate starting point is 4 years imprisonment;
   • (b) for the Defendant’s early guilty plea and cooperation with Police, a reduction of 1 year, resulting in a sentence of 3 years imprisonment; and
   • (c) having regard to the relevant factors in Mo’unga v R [1998] Tonga LR 154, even though the Defendant is not young and there was no provocation, he cooperated with the authorities and his long period free of crime and his maturity suggest that he is likely to take the opportunity offered by a suspended sentence to rehabilitate himself. Therefore, the final 18 months of the sentence should be suspended for 2 years on conditions including an anger management course.

Presentence report

10. The Defendant is 48 years of age. He is seventh of nine children. His parents and siblings are all alive and well. His father was self-employed as a farmer and his mother earned income from weaving. When he was young, the family moved from Niutoua to Popua to be closer to school, as the parents were barely able to meet the cost of transport.
11. The Defendant completed his primary education, then attended Tonga College 'Atele for four years before attending Liahona High School for one. He then worked from home as a wood sculptor. He eventually established his own business attracting local tourism.
12. The Defendant married Vai and they have 11 children, all of whom were raised and educated from his income as a wood sculptor. As they became older, the children assisted their father and contributed to the family’s income.
13. The Defendant’s talents have been recognized locally and abroad and he was invited to participate in training overseas. However, during his frequent travels abroad, his wife began an affair, and she moved out of the family home, leaving all of their children behind. The Defendant now resides in Popua, caring for his family and working from home.
14. Town Officer, Tevita Fatai, described the Defendant as a nice, hardworking father who is dedicated to his children and family and an active member of the Popua community. Halina Hafoka told the probation officer that she and her siblings stayed with their father because of how much he loved and cared for them.
15. However, the Town Officer went on to describe the family situation as "very complicated" because on the one hand, the Defendant is a person who protects his family at all costs, while on the other, the Victim’s characteristics and attitude are well known in the Popua community including being a drug addict. Thankfully, the Town officer added, the Defendant has had the patience to deal with it over the years because he loves his daughter and grandchildren.
16. In relation to the offending, the Defendant told the probation officer that this was not the first time he had witnessed Feleti, his son-in-law, “brutally abusing his daughter” and that she had been beaten by him on multiple occasions, particularly while they lived under the same roof. He described what occurred on the day in question as follows:

"I've been ignoring it for so long because when I asked my daughter to report it to the police, she didn't." This day, I was overcome with rage, especially when their children watched as he abused her."

17. Halina confirmed the Defendant’s version of events. She added that she now has a court order prohibiting her husband from contacting her. Notwithstanding, he recently took her to another location and severely beat her. She did not tell her father about it.
18. The Defendant expressed his deep regret for not solving the problem in another way. He apologized to Feleti who has forgiven him.
19. The probation officer opined:

“As a parent, the offender did what any father would do in this situation: he shielded his children from harm. However, his last resort was to slice the hands that had repeatedly hurt his daughter, which he felt had rights at the time, but it was no excuse and was illegal to do so.”

20. The probation officer assesses any risk to the community posed by the Defendant as not very high. She therefore recommended a partly suspended sentence.

Prosecution’s reply submissions

21. As a result of the above accounts about the Complainant here being an alleged perpetrator of domestic violence on his wife and the Defendant acting to defend her, on 22 August 2023, I directed that the Prosecution file further submissions and any affidavit/s in reply.
22. On 24 August 2023, the Prosecution filed a supplementary submission, which may be summarised as follows:
    • (a) Police have not been able to locate the Complainant.
    • (b) Halina Hafoka’s account in the presentence report that the Complainant physically abused her when the incident occurred was not mentioned in her signed witness statement to police (with copy attached). In essence, she stated that she returned home at midday on 12 March 2023, after been away since the previous afternoon for a birthday. She argued with the Complainant when he asked where she had been. The Defendant intervened only by telling them to stop arguing. When the complainant raised his voice, the Defendant attacked him.
    • (c) Similarly, in his record of interview (with copy attached), the Defendant did not mention the Complainant assaulting Halina when the incident occurred. The account he did give was largely consistent with Halina’s statement.
    • (d) Accordingly, the allegations in the pre-sentence report should not be given much weight and the Court should rely on the Crown’s summary of facts.
23. I record at this point that I am satisfied with the explanation provided by the Prosecution and will proceed on the basis of the summary of facts. A search of the court management system did not reveal any record of Halina Hafoka obtaining a protection order against Feleti.

Starting point

24. The maximum statutory penalty for causing grievous bodily harm is 10 years imprisonment.
25. Since at least the decision of Ward LCJ in Hu’ahulu v Police [1994] Tonga LR 93, this Court has repeatedly held that:

“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.”

26. That approach was endorsed in Siokatame Tupou v R [2019] TOCA 8 where the Court of Appeal stated:

“... Offenders inflicting serious injury with a weapon must ordinarily expect to serve a term of imprisonment. That is particularly so given the prevalence and availability of machetes.”

27. The seriousness with which the Courts have, and must, view offences involving serious injury inflicted by edged weapons, must be applied here even though the offending involved members of the same extended family and notwithstanding the likely suffering to the victim’s wife and other members of the family living on the same allotment by the incarceration of her father.
28. However, the instant offending is not as serious as the comparable sentences referred to by the Crown nor in other recent decisions such as R v Pouono [2021] TOSC 106. There, the Defendant was drinking alcohol with others when he got into an argument and ensuing fight with one of the males. After they calmed down, the victim went to purchase another bottle of alcohol while the Defendant went home, grabbed a chopping knife and returned to the drink up with it. Without warning or any further provocation, the Defendant then struck the victim with the knife on his nose. Then, as the victim grabbed his bleeding nose, the Defendant struck again, this time severing the victim’s right index finger from his hand. The victim was taken to hospital for treatment. The Defendant was arrested and admitted to the offending. For that, a primary starting point was set of 5 years’ imprisonment.
29. Here, I note in particular, that while the victim’s injuries took quite a while to heal, he has not been left with any known permanent loss of function or lasting pain. Had that been otherwise, the starting point would have been significantly higher.
30. Therefore, I agree with the Prosecution submission that the appropriate starting point is four years imprisonment.

Mitigation

31. For the Defendant’s early guilty plea, thereby sparing the victim and his wife (among others) having to give evidence at a trial, and his long period free of crime, I am prepared to allow a full discount of one third, resulting in a sentence of 32 months imprisonment.

Suspension

32. The non-exhaustive considerations for suspension discussed in Mo’unga v R [1998] Tonga LR 154 reveal here that the Defendant is not young, and he does a previous albeit very old conviction for violence. Against that, the Defendant fully co-operated with the authorities. While I am not satisfied that there is any evidence of genuine provocation or basis for self-defence, I tend to the view that the Defendant acted out of a misguided belief that he had to defend his daughter from her husband during their verbal altercation and anger when the Complainant raised his voice at him.
33. Despite the Defendant’s positive attributes and, as noted above, the likely impacts on his family by his incarceration, I do not consider that full suspension here is warranted or legally supportable. The approach consistently taken by the Courts when dealing with offending involving machetes and similar weapons reflects the expectations, and need for protection, of the community as well as Parliament’s directive in legislating a maximum penalty of 10 years imprisonment.
34. On the other hand, the Defendant’s personal circumstances as conveyed by the presentence report provide confidence that he is likely to take the opportunity offered by a partly suspended sentence to rehabilitate himself.

Result

35. The Defendant is convicted of causing grievous bodily harm and is sentenced to 2 years and 8 months (or 32 months) imprisonment.
36. The final 16 months of the sentence are to be suspended for a period of 2 years from the date of the Defendant’s release from prison on condition that during that period he 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 and thereafter as directed by his probation officer; and
    • (d) complete an anger management course as directed by the probation officer.
37. Failure to comply with those conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of his prison term.
38. In the result, and subject to those conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 16 months in prison.
    

NUKU’ALOFA	M. H. Whitten KC
28 August 2023	LORD CHIEF JUSTICE

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^[1] Known as a Wakizashi.

^[2] CRS 82-83/1994

^[3] Referring to Hu’ahulu v Police [1994] Tong LR 93.

^[4] The summary of facts is silent on this, but photographs of the injuries filed by the Prosecution with a medical report appear to indicate only one deep laceration.