R v Fangupo [2023] TOSC 6; CR 120 of 2022 (25 January 2023)

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

CR 120/2022

REX
-v-
MAAMALOA FANGUPO

SENTENCING REMARKS

BEFORE: JUSTICE P. TUPOU KC

Appearances: Mr. F. Samani for the Prosecution
Defendant in person
Date: 25 January, 2023

The charges

1. On 22 November 2022, the Accused pled guilty to serious causing bodily harm, contrary to sections 107(1), (2) (c) and (4) of the Criminal Offences Act.

The offending

2. On 3 June 2022 at around 9pm, the complainant Koli Mafile’o Valu, Henele Tausala and Ryan Tualau were drinking alcohol at Henele’s residence at Ha’ateiho. They were in his living room. The defendant joined them about an hour later.
3. As the night progressed and the defendant became intoxicated, he also became loud. The complainant challenged the defendant to a fight, during which the complainant punched the defendant’s jaw.
4. The defendant then walked to the kitchen and returned to the other men in the living room. Unknown to the others, he had obtained a small knife with a yellow handle from the kitchen and had it with him on his return.
5. Without knowing the defendant was armed with a knife, the complainant motioned as if to strike the defendant twice.
6. On the third motion, the defendant attacked the complainant. The complainant clung onto the defendant’s chest while the defendant delivered with his right hand what was then believed to be hammer fist strike to the complainant’s back.
7. When they parted, the complainant’s back was bleeding profusely from multiple lacerations.
8. It was then discovered that the defendant had attacked the complainant with the small knife with the yellow handle he had earlier obtained from the kitchen after the first altercation. Henele identified the knife was from his kitchen.
9. The defendant left the residence as the complainant was rushed to the hospital.
10. The complainant had sustained 6 stab wounds to his back. The lacerations were approximately 1.5 to 2.5 cm in length, and 0.2 to 0.5 cm in depth. Fortunately, the wounds were not deep enough to injure any vital organs.

Crown’s submissions

11. The Crown submits the following as aggravating features:
    1. The defendant has previous convictions;
    2. The defendant did not cooperate with the Police;
    100. The defendant had used a dangerous weapon to commit the offence;
    4. The offence was premeditated;
    5. The complainant was stabbed six times;
    6. The attacks outweighed the level of provocation exhibited by the complainant.
12. The Crown submits the following as mitigating features:
    1. The defendant pled guilty at the earliest opportunity;
    2. There was some degree of provocation.
13. The Crown referred to the following comparable sentences:
    1. Rex v Lemeki Pasina CR 15/2022 – the defendant was charged with one count of serious causing bodily harm. In that case, the defendant had arrived in a vehicle with 3 others at the complainant’s work place. The complainant was outside. The defendant told the complainant to get into his vehicle and when he refused, a fight broke out where the defendant pulled out a knife and stabbed the complainant twice. The complainant sustained two injuries as a result. A laceration to his left shoulder which was 4cm wide and 1 cm deep and his left forearm which was 3cm wide. The defendant did not cooperate with the police but pled guilty on arraignment. He had multiple similar offending and another involving drugs. A starting point of 3 years and 6 months was fixed. For his early guilty plea, remorse and apology to the complainant, 12 months was deducted in mitigation. He had not cooperated with the police, possessed a poor criminal record and had previously been awarded suspended sentences but did not take the opportunity to rehabilitate himself. Final sentence was 2 years and 6 months imprisonment.
    2. Rex v Sinela Fifita CR 158/2019 – the defendant was charged with one count of serious causing bodily harm. During an argument with the complainant, the defendant attacked with a knife. The complainant sustained injuries to his chest, shoulder and nose. A starting point of 4 years imprisonment was fixed. A deduction of 1 year was awarded in mitigation for his good record since 1997 and having started a family well after the offending. The sentence was suspended in full on conditions plus 100 hours of community service.
    100. Mo’unga v R [1998] Tonga LR 154 - set down a guideline when considering the suspension of a sentence being;
         1. Where the offender is young, has a previous good record or has had a long period free of criminal activity.
         2. Where the offender is likely to take the opportunity offered by the sentence to rehabilitate him or herself.
         3. Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender.
         4. Where there has been cooperation with the authorities.
14. A victim impact report was not available at the time of this sentencing.
15. The Crown proposes a starting point of 4 years imprisonment based on the number of injuries inflicted and the location of those injuries to vital organs on the human body. It was submitted that the injuries to the back were more serious in comparison to the injury to the chest in Fifita above. I am assuming this is because there was one stab to the chest there while there were 6 stabs to the back here. A deduction of 1 year is proposed for the defendant’s guilty plea and the element of provocation involved.

The Crown suggests that the defendant is entitled to some suspension and proposes that the final 6 months of the final sentence be suspended for his young age and the fact that there was some diminution of culpability through the complainant’s provocation.

Pre-sentence Report

16. On 22 November 2022, a pre-sentencing report was ordered to be filed by the 20 December, 2022. I have received a letter dated 20 January, 2023 from the Probation Division explaining they have been unable to provide a report because the defendant failed to attend their office. However, the office was able to make contact with the Ha’ateiho Town Officer, Tomasi Pakalani who said that the defendant moved around between his parents families. The town officer, also informed the Probation Officer that the defendant is “...a very problematic youth, especially when intoxicated.”
17. I have asked the defendant if he wished to address the court this morning before his sentencing and he has declined that opportunity.

Starting point

18. The maximum statutory penalty for serious causing bodily harm is a term of imprisonment for any period not exceeding 5 years.^[1]
19. Having regard to the maximum penalty, the seriousness of the offence, the use of a knife as a weapon, the comparable sentences, the premeditated nature of the offence shown by the defendant walking away from the scene to obtain the material knife, the defendant’s refusal to offer assistance to the victim after his offending^[2], the principles of denunciation, deterrence and the Crown’s indicative sentence submission of a starting point range of 3 years to 3 years and 6 months imprisonment, I adopt a starting point of 3 years and 6 months imprisonment.

Mitigation

20. I have considered the Defendant’s early guilty plea as him taking responsibility for his actions, his lack of relevant convictions as well as the provocation involved in his offending and deduct 12 months in mitigation. This results in a final sentence of 2 years and 6 months imprisonment.

Suspension

21. As to whether any or the whole of the final sentence is suspended, I turn my mind to the guidelines in Mo’unga^[3]. The defendant was 28 years old at the time of the offence. In the absence of any information regarding his education, upbringing, employment and general life experience I am inclined to lean towards accepting he is young. He has no relevant previous record and previous convictions were relatively minor.
22. I note the comment of Mr. Pakalani above^[4] and find it short of sufficient detail to make anything of it. Therefore, it goes no further than just a statement made in passing, which I will ignore for the purposes of this sentencing. However, I will note here, that without a pre-sentencing report to assist the court in assessing the circumstances of the offender and the offending because he elected not to take advantage of that opportunity, that is on him.
23. Returning to the issue of suspension, in Hu’ahulu v Police [1994] Tonga LR 93, Ward LCJ opined 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.”

24. Here, I highlight and emphasize the view of Gibson J in R v Gilmore (1080) 2 Cr. App.R (S) 201^[5] that;

“...the learned judge was right to call it a terrible offence... He took with him a sharp knife... He attacked the victim without any provocation whatever and inflicted the grave wounds to which reference has been made...It must be plainly understood ...that whatever may be the situation...the use of knives...will not be tolerated.”

25. To give effect to the objectives of punishment, specific and personal deterrence to the defendant, general deterrence and the community’s condemnation of criminal conduct of this kind, I suspend the final 12 months of the defendant’s sentence only. I note this is consistent with the Crown’s indicative sentencing submissions.

Result

26. The defendant is convicted for causing serious bodily harm and is sentenced to 2 year and 6 months imprisonment. ;
27. The final 12 months of the defendant’s sentence is suspended for a period of 2 years on the following conditions resulting in a total term of imprisonment of 1 year and 6 months. The defendant is;
    1. Not to commit any offence punishable by imprisonment;
    2. Report to the Probation Office within 48 hours of his release;
    100. Live where directed by his Probation Officer;
    4. Not use or consume alcohol/drugs;
    5. Not associate with drug users or known offenders;
    6. Attend a course on alcohol abuse under the direction of his Probation Officer;
       
28. The defendant must be warned that failure to comply with these conditions will result in the suspension being rescinded, in which case, he may be required to serve the balance of his sentence in prison.
    

P. Tupou KC
JUDGE

NUKU’ALOFA
25 January, 2023

---

^[1] s.107 (4) (a) of the Criminal Offences Act.
^[2] which I have considered as an aggravating factor.
^[3] Ibid. para.13(c)
^[4] At para.15
^[5] Endorsed by Hu’ahulu, ibid. and Rex v Pasina- CR 15/2022 ibid.