R v Fanua [2023] TOSC 51; CR 136 of 2022 (3 October 2023)

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

CR 136 of 2022
REX
-v-
PITA FANUA

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mrs ‘E. Lui for the Prosecution
Mr S. Fili for the Defendant
Date: 3 October, 2023

The proceedings

1. On 12 July, 2023, the Defendant was found guilty by a jury after a three-day trial, of one count of causing grievous bodily harm, contrary to section 106(1) and (2)(b) of the Criminal Offences Act.

The offence

2. The Defendant is 48 years of age and resides at Ha’afeva, Ha’apai with his wife and 8 children.
3. The victim, Tu’ipulotu Tafolo, is married to the Defendant’s adopted daughter, Mele Kafo’atu Tafolo (“Kafo’atu”). They lived in a separate house on the same compound. They have 4 children. The eldest two of their children were born before their marriage and customarily adopted by the Defendant and his wife.
4. The Defendant, the victim and their respective families are all members of the Free Church of Tonga.
5. On 14 August 2020, the Free Church of Tonga of Ha’afeva held its “misinale^[1]” and subsequent feasting. Afterwards, the boys from the church gathered at the beach for drinks. The victim accepted an invitation to join them.
6. Around 10pm, the victim returned home for food. He returned to the group and later returned around midnight when the drinks finished.
7. Around midnight, Kafo’atu was at the Defendant’s home with her mother. They heard some noise and Kafo’atu went to investigate. She found her husband sitting outside. He was drunk and asked after their two elder children. She told him they were with her parents. He said he wanted them returned and they started to argue. Kafo’atu’s mother, yelled out that he does not have any control over those children because they were born before their marriage.
8. The argument between Kafo’atu and the victim became heated to a point where he lunged at her. She ran to the town officer’s home for help. When she did not find him there, she and his wife went looking for him.
9. Upon their return they saw the victim fighting with one of the Defendant’s step sons. Around the same time, at least 5 members of the community police turned up. Kafo’atu pleaded with them to take her husband where he would be safe as he was inebriated. The boys disregarded her words and attacked the Defendant. He fell to the ground and they kept on attacking him. His nose and mouth were bleeding. They dragged him to the house he and Kafo’atu occupied and sat him on their bed.
10. Meanwhile, the Defendant had received a call from his wife to return home. On his return Kafo’atu tried to calm him down. She begged with him not to do anything and to leave the victim alone, promising to report him to the police.
11. The Defendant said he had had enough and told Kafo’atu to be quiet. The Defendant entered the house occupied by the victim and Kafo’atu and delivered a blow to the left side of the victim’s face with the fishing torch he held in his right hand.
12. The victim said the vision in his left eye blacked out when the blow landed. Kafo’atu said she saw a depression on the left part of her husband’s face where the defendant struck him and blood shooting out of his left eye after the hit.
13. Kafo’atu pleaded for help but received no assistance from the defendant. Others helped her take the victim to the hospital at Ha’avefa and later by boat to Fusipala Hospital at Pangai. There he was examined by Dr. Lander Maile and was found to have sustained fractures to his face with possible blindness in his left eye. The victim was transferred to Viola Hospital for x-rays and further examinations.
14. On 24 August 2020, at Vaiola Hospital, Dr. Duke Mataka attended to the Complainant. He reported that the victim had sustained a mid-face “Lefort 2” fracture and a perforated globe of his left eye. On 25 August, 2020, an operation was undertaken for evisceration of his left eye.
15. He opined that the injuries sustained resulted from the use of a heavy force applied to the face with a hard object and that the perforation of the victim’s left eye resulted in permanent blindness and permanent disability (total blindness).

Crown’s submissions

16. The Crown submits the aggravating features of the offending were:
    1. the seriousness of the offence;
    2. the Defendant’s non-guilty plea thereby exerting trauma on the victim and his wife to relive the tragic events of 14 August, 2020 in court;
    100. the permanent blindness caused to the victim’s left eye;
    4. absence of any provocation;
    5. Defendant’s action fuelled by anger;
    6. use of a weapon to inflict the injury;
    7. the Defendant’s failure to offer assistance after injuring the victim;
    8. the Defendant is the victim’s wife’s relative;
    9. the Defendant’s disregard to the injuries inflicted by others;
    10. no apology had been offered by the defendant to the victim.
17. The Crown submits the following as mitigating features;
    1. the Defendant is a first-time offender;
    2. the Defendant’s family has apologized to the victim.
18. The Crown referred to the following comparable sentences:
    1. Rex Ma’afu Ledger, CR 7 of 2022 – the Defendant pleaded guilty to causing grievous bodily harm to the Complainant when he struck the Complainant’s right eye with a beer can causing permanent blindness to the Complainant’s right eye. The Defendant had previous convictions for assault and domestic violence, his actions were premediated, use of a weapon (beer can), assaulting the Complainant at his own home, the Complainant was intoxicated and helpless, and causing permanent blindness to the Complainant’s right eye. A starting point of 5 years’ imprisonment was imposed in line with Cato J’s approach in Pou’uhila. The Defendant was sentenced to 4 years imprisonment with the final 18 months suspended for two years on conditions.
    2. Rex v Vunga Fusikata, CR 313 of 2020 – the Defendant pleaded not guilty to causing grievous bodily harm to the Complainant when he repeatedly punched the Complainant’s left eye causing him permanent blindness. The Defendant’s actions were premediated, he was intoxicated, he assaulted the Complainant, he was not remorseful, and he did not cooperate with Police. A starting point of 5 years imprisonment was imposed with a 6 months deduction for his late guilty plea. He was sentenced to 4 years and 6 months imprisonment with the final 18 months suspended for two years on conditions.
    100. R v Sione Lolohea, CR 85 of 2020 – the Defendant pleaded guilty to causing grievous bodily harm contrary to section 106(1) and (2)(b) of the Criminal Offences Act. He was intoxicated when he assaulted the Complainant by striking him on his face with a piece of timber causing permanent blindness to his left eye. The Complainant was asleep at the time of the offending. A starting point of 6 years imprisonment was imposed. For the Defendant’s guilty plea, remorsefulness, apology and restitution of $2,000.00 to the Complainant, 2 years were deducted by way of mitigation. He was sentenced to 4 years imprisonment with the final 12 months suspended on conditions.
    4. R v Misa [1991] Tonga LR 69 – the Defendant was found guilty and convicted of causing grievous bodily harm when he struck the Complainant’s face with a torch causing injuries to his eye. He was sentenced to 4 years imprisonment with the final 42 months suspended for three years on conditions.
    5. R v Mumuhu Pou’uhila, CR 104 of 2017 – the Defendant pleaded guilty to grievous bodily harm contrary to section 106(1) and (2) of the Criminal Offences Act. The Defendant threw a brick at the complainant hitting the right side of his face causing him to fall to the ground. The Complainant’s right eye was permanently blind and he underwent surgery for a compound depressed fracture to the left temporal bone of his skull. A starting point of 5 years was imposed with a deduction of 18 months for the Defendant’s guilty plea, young age, good character, he was remorseful and apologized to the Complainant. The Defendant was sentenced to 3 years and 6 months imprisonment with the final 18 months suspended on conditions.

Victim Impact

19. The victim has forgiven the Defendant but has not forgotten what happened to him. The incident caused total blindness in his left eye, pain in the eye when he bows down and sporadic memory loss. Despite the defendant’s family apology, no personal apology has been offered by the defendant to him.
20. The Crown submits that a custodial sentence is appropriate with a starting point of 5 years imprisonment to be lifted to 6 years imprisonment for the defendant’s not guilty plea, seriousness of the crime and the use of a weapon.
21. The Crown accepts the defendant is entitled to have a portion of his sentence suspended and recommends the final 18 months is suspended with an addition 12 months for the unjustified delay in the Police prosecuting this matter.
22. The resulting proposed sentence is 5 years 6 months imprisonment with the final 30 months suspended for 3 years on conditions.

Defendant’s submissions

23. Mr Fili, for the defendant, submitted the mitigating features in favour of his client were:
    1. he is a first-time offender;
    2. he is a person of good character^[2];
    100. he is remorseful;
    4. the Defendant’s family had reconciled with the victim and the victim wrote a letter dated 30^th November 2022 asking the Supreme Court Judge to withdraw his complaint;
    5. the Defendant gave $440 to the victim and his wife to help them with their kids;
    6. the Defendant cooperated with Police as he admitted to the offending but claimed self-defence.
24. Mr. Fili proposed a sentence of 4 years imprisonment with 6 months to be served and the balance of 3 ½ years suspended as in Mila.

Pre-sentencing report

25. The defendant is 48 years old. He is an only child. He married Sisi Fanua who, according to a supplementary received on 30 August, 2023 on my request, had 5 children from a previous marriage. Her husband died and she married the Defendant. They have 3 children of their own. The Katalina is 23 years of age and lives at Kala’au with her husband. Lea’aliki is 20 years old and lives with the Defendant. Tivise is 18 and attends Ha’apai High School together with Akanesi who is 17 and Aisea, 15. Tevita, 13 and Telesia 10 attend the Ha’afeva Government Middle School. Then there is the victim’s wife whom the Defendant raised from a young age.
26. The defendant had a good upbringing but dropped out of school after completing class 6 at primary school. He helped his parent by fishing, farming crops and cattle. He has continued to rely on those means to take care of his family, including his parents. He is of good health.
27. The probation officer reported that he accepted the summary of facts.
28. The town officer of Ha’afeva described the accused as a joyful free spirited individual. His church Minister described the accused as a good and helpful member of the community and church.
29. The defendant’s version of the offending is that he was having kava when his wife called and said something had happened to his father. When he arrived, he could hear “terrible” noises coming from the victim’s house. He saw his father sitting under a mango tree with his bowed and blood dripping from his brow.
30. His wife told him that the victim had “gathered” his father and had come to strike him but his father said nothing. The defendant went and spoke to the victim but he was belligerent. He went back and was talking with his parents but the noise from the victim did not stop. He went back and attempted to stop him but the victim “crowded” him and that’s when he struck in self-defence.
31. The probation officer acknowledged the defendant: is a first time offender; pleaded guilty; apologised to the victim and was accepted; is the sole bread winner for his family and if he was imprisoned his family and the community would suffer as he is the hardest working member of the community. For these reasons, she recommends a fully suspended sentence on conditions.

Starting Point

32. The maximum statutory penalty for causing grievous bodily harm is 10 years imprisonment.
33. The courts approach to these types of offences was recently cited in CR 87 of 2023 R v Kali referring to Siokatame Tupou v R [2019] TOCA 8 where the Court of Appeal said:
    

“...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.”

34. Although the weapon used this instant was a torch and not a machete, the injuries inflicted by the defendant’s torch caused a life altering impact on the victim and in my view falls within the category of “fearsome weapons” as coined in Mila. Accordingly, a custodial sentence is the appropriate sentence here.
35. At the trial Mr. Fili for the defendant raised lawful justification and asserted self-defence. The jury did not agree.
36. What is supported by evidence is that the Defendant was not in the area when the fighting occurred. The victim had been beaten by at least 5 men prior to the offending. He was bleeding from his nose and mouth and was defenseless at the time of the offending. Attempts by Kafo’atu to stop the Defendant were ignored indicating his determination to commit the act of violence as he did on the victim.
37. In his sentencing submissions Mr. Fili introduced a fresh lawful justification argument, that is, the victim attacked the Defendant’s elderly parents provoking the defendant to act as he did. The Defendant repeated the said allegations to the probation officer. Not only is the argument inappropriate at this stage of the proceedings but no evidence was called in support and are rejected.
38. Further, I have considered the pre-sentencing report with some concern in relation to the recommendation for a fully suspended sentence. That was obviously predicated on a mistaken understanding of the proceedings and facts. The defendant did not plead guilty nor had he apologized to the victim.
39. Although the offending involves members of the same family and any period of incarceration will affect them, any sentence imposed must reflect the need to protect people, members of the public whether they are related or not and the appropriate penalties legislated by Parliament.
40. For those reasons, I set a starting point of 5 years. I lift the starting point by 12 months for the brutal attack on the victim as he was bleeding and suffering from injuries from an earlier group attack, his rejection of attempts by Kafo’atu to dissuade him and his failure to assist obtain medical attention for the victim, resulting in a final sentence of 6 years imprisonment.

Mitigation

41. The Defendant cooperated with the police and conducted a crime free life up until this incident. Accordingly, I deduct 12 months from the sentence resulting in a final sentence of 5 years imprisonment.

Suspension

42. As for the considerations for suspension discussed in Mo’unga v R [1998] Tonga LR 154 despite his age, the parties agree that the Defendant’s circumstances favour suspension. I accept that.
43. Attached to the Defendant’s submissions were letters Tevita, the Defendant’s 13-year-old son, the Defendant’s mother, the school Principals of Ha’afeva Government Primary School and Ha’apai High School, the town officer, his church Minister and District Officer pleading for mercy on behalf of the Defendant and speaking of his positive attributes.
44. I have given considerable thought to the words from the defendant’s mother, children and teachers. However, the fact that the offender was the breadwinner for his family, was not, and is rarely likely ever to be, on its own proper reasons for suspending a sentence.^[3] Further, it is recognized and accepted that if the Defendant goes to prison, the family will suffer and that unfortunately is an all too frequent consequence of criminal offending.^[4] Having said that, I am satisfied that the Defendant’s adult children can step up to the duties previously undertaken by him for his elderly parents and younger offsprings.
45. Against the attestations to the defendant’s positive attributes and the suffering his family will experience, the court must consider them against the seriousness of the offence, the grievous injury suffered by the victim, lack of remorse indicated by the absence of an apology after 3 years, the maximum statutory penalty, the principles of punishment, deterrence and the interest of the public that persons who commit serious criminal activity as here are appropriately punished. For those reasons, I accede to the Prosecution’s submission and suspend the final 30 months of the defendant’s sentence.
    

Result

46. The defendant is convicted for causing grievous bodily harm and is sentenced to 5 years imprisonment. The final 30 months of his sentence is suspended for a period of 2 years from the date of his release from prison on the condition that during that period he is to:
    1. not commit any offence punishable by imprisonment;
    2. be placed on probation;
    100. contact the probation office within 48 hours of his release and thereafter according to directions provided by the probation officer;
    4. complete an anger management course as directed by the probation officer.
47. 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
48. In the result, and subject to those conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 30 months in prison.
49. The Defendant is to be given credit for any time spent in custody on remand for the charges the subject of these proceedings.
    

NUKU’ALOFA	P. TUPOU KC
3 October, 2023	ACTING LORD CHIEF JUSTICE TUPOU

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^[1] Annual church collection of funds
^[2] Evidenced in the letters from leaders of Haapai community
^[3] See R v Vake [2012] TOCA 17,
^[4] R v Motulalo [2000] Tonga LR 311