R v Tu'tafaiva [2023] TOSC 64; CR 82 of 2023 (5 December 2023)

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

CR 82/2023

REX
-v-

‘Akimeta Tu’tafaiva

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. F. Samani for the Prosecution
The defendant for himself
Date of: 5 December 2023

1. On the night of Tuesday 9^th August, going into Wednesday 10^th August 2022, Robynson (Lopini) Tu’utafaiva, Akimeta Tu’utafaiva, Samuela Tu’utafaiva, Luseane Maka and Talisa and others were all drinking after a relative’s 70^th birthday celebrations at Robynson Tu’utafaiva’s residence.
2. They were drinking spirits and had been doing so for some substantial time when Akimeta Tu’utafaiva got into an argument with Talisa and tried to attack her.
3. Samuela Tu’utafaiva tried to intervene leading to him and Akimeta Tu’utafaiva fighting. Samuela ended up having be restrained.
4. Akimeta Tu’utafaiva then went into the fale, grabbed a machete, Robynson Tu’utafaiva rushed him to prevent the women standing nearby from getting injured. So Akimeta Tu’utafaiva swung the machete and this injured Robynson left hand.
5. Akimeta Tu’utafaiva did not stop there. While the victim crawled outside and then ran with his sisters to hide, Mr. Akimeta Tu’utafaiva thrashed around the kitchen of the fale, striking the work surface and oven with the machete before heading outside and trying to attack the victim’s grandfather, Sione, with the machete. Sione had his back to Akimeta Tu’utafaiva at the time and was completely defenceless. Samuela Tu’utafaiva once again intervened saving Sione from injury.
6. There then followed a brawl between the two men that at some point ended and Robynson Tu’utafaiva was taken to hospital, next the police arrived.
7. In a report dated 15 August 2023, Dr ‘Isileli M. Tu’ipulotu noted following injuries to Robynson Tu’utafaiva :
   
   1. Laceration on dorsal aspect of the left-hand region on 2^nd and 3^rd knuckles; and
   2. Fractures on the left index finger and 3^rd finger.
      
8. It is convenient to note at this point that there has been lasting injury to Robynson Tu’utafaiva. Described as the complete elimination of functionality of his left index finger. This is a matter I shall return to in due course.
9. This sustained outburst armed as he was, that led to permanent injury, involved an attack on property and the attempt to strike a man, with the machete, who had his back to the defendant, has only led to a single count of causing serious bodily harm, contrary to section 107(1), 2(c) & (4) of the Criminal Offences Act, in respect of the assault on Robynson Tu’utafaiva and despite the permanent disability received.
10. Mr. ‘Akimeta Tu’utafaiva has a history of alcohol abuse and illicit drug dependency that has led to repeated violent outbursts and to his being detained as a psychiatric patient at Viola hospital from time to time since 2016.
11. He is apparently prescribed medication to attempt to control this behaviour.
12. It is not referred to in any of the material before me whether he was complying with his treatment and taking his medication at the time, or what instructions he had been given in relation to alcohol consumption, his mental health difficulties and his medication.
13. The Crown have made submissions on sentence; set out comparable sentences and made submissions on aggravating and mitigating features as follows:
    

AGGRAVATING FEATURES

1. The offence was committed with a deadly weapon^[1];
2. The Accused was intoxicated when he committed the offence;
3. The Accused is the Complainant’s own nephew;
4. If not for the Complainant’s brave and swift efforts, the Accused’s actions would have caused more dire circumstances;
5. The Complainant’s injury was severe, and has completed eliminated mobility of his right index finger, which has posed challenges to trade;
6. The Accused has not apologised to the Complainant, which poses doubts as to genuine remorse.
   

MITIGATING FEATURES

1. The Accused pleaded guilty at the earliest opportunity.
   

(1) Rex v Lemeki Pasina CR 15/2022

1. On 14 October 2021, the Complainant was at a barber shop where he worked in Ngele’ia. After attending to a customer, the Complainant went outside. Moments later, the Defendant arrived in a vehicle with three individuals. The Defendant got out of the vehicle and told the Complainant to get in and tried to pull the Complainant into the vehicle. The Complainant refused and the Defendant punched him. A fight broke out upon which the Defendant pulled a knife from his trousers pocket and stabbed the Complainant twice. The Defendant suffered a 4 cm wide by 1 cm deep laceration on his left shoulder and a 3 cm wide laceration on his left forearm. When arrested the Defendant did not cooperate with the Police, and chose to remain silent when questioned.
   
2. The Defendant was charged with one count of serious causing bodily harm, contrary to section 107(1), (2)(c) and (4) of the Criminal Offences Act. He pleaded guilty on arraignment. The Defendant had multiple previous convictions for similar offending, and also a recent conviction for drug offences.
   

100. In sentencing, Honourable Chief Justice Whitten reiterated the comments of Ward CJ in Hu’ahulu v Police [1994] Tonga LR 93 that “...anyone who commits an offence of violence against another person runs a serious risk of immediate imprisonment.... The likelihood of going to prison becomes a virtual certainty if ... a weapon of any type is used.”, and additionally the comments of Gibson J in R v Gilmore (1980) 2 Cr.App.R(S.) 201 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 ...”. A starting point of 3 years and 6 months imprisonment was adopted. The mitigating factors considered were the Defendant’s early guilty plea, demonstrated remorse and apology to the Complainant. The starting point was then reduced to 2 years and 6 months imprisonment. It was not appropriate to suspend any part of the Defendant’s sentence because he had a poor criminal record, he had been awarded a suspended sentence before and had not taken that opportunity to rehabilitate himself, and he did not cooperate with the authorities. The Defendant was sentenced to 2 years and 6 months imprisonment.
     

(2) Rex v Sinela Fifita CR 158/2019

1. On 14 January 2015, an argument escalated between the Defendant and the Complainant. The Defendant then attacked the Complainant, and stabbed him three times with a knife injuring his chest, shoulder and nose. Another individual intervened and hit the Defendant with a piece timber separating him from the Complainant.
   
2. The Defendant was charged with one count of serious causing bodily harm, contrary to section 107(1), (2)(c) and (4) of the Criminal Offences Act. The Defendant was convicted after a contested trial. Since the incident occurred, the Defendant had yet to apologise to the Complainant. The Defendant’s last previous conviction was in 1997.
   

100. Honourable Justice Niu adopted a starting point of 4 years imprisonment. There were no mitigating factors in favour of the Defendant besides the fact that his last conviction was in 1997, and that since the offending he had started a family and had five children whom were dependant on him. In light of these factors, 1 year was deducted from the starting point resulting in a final sentence of 3 years imprisonment.
     

4. The sentence was fully suspended for 2 years on the condition that the Defendant no longer commits an offence punishable by imprisonment during the suspension period. Despite the imminence of incarceration for such offences, the Defendant’s case took 5 years to be tried, and in that span of time the Defendant started a family and had five children who were dependent on him. This was a highly distinguished factor which separated this case from others of like offences where no suspension of sentence was awarded. An immediate incarceration would have seriously affected the Defendant’s newly established family whom had no involvement in the events causing the offending. Therefore, only an additional condition of suspension was added to represent a punitive element of the sentence, where the Defendant was ordered to complete 100 hours of community service.
   

(3) Tupou v Rex AC 16/2018

1. The Accused appealed against a sentence of 6 years imprisonment for the charge of causing grievous bodily harm, and 4 years imprisonment for the charge of causing serious bodily harm, to two Victims respectively.
   
2. The Accused pleaded guilty in the lower court. He attacked two individuals with a machete, causing multiple lacerations the left arm, forearm, hand, and fractures to the ulnar bone, and cuts to nerve, artery and tendons on three fingers of the First Victim (grievous bodily harm charge), and multiple lacerations to the left arm, forearm and hand of the Second Victim (serious bodily harm charge).
   

100. The appeal was rooted on the grounds that the Sentencing Judge did not consider the existence of provocation and therefore the sentence in the lower court should have been lower, and that the period of suspension should have been longer.

4. The appeal was dismissed. The Court of Appeal was satisfied that the Sentencing Judge’s composition of the overall effective sentence was appropriate which allowed for all relevant mitigating circumstances, and that the period of suspension imposed was appropriate given the seriousness of the offending and the prevalence of the use of dangerous weapons like machetes.
   

Victim impact statement

14. The following was noted in the Crown’s submissions:
    
15. The Complainant is a 20-year-old male student of Fokololo Technical Institute. He is in his third year of studies to be a metalworker.
    
16. The Complainant could not attend school in the remainder of last year’s final academic term, after the incident occurred in 10 August 2022. He resumed his studies this year, but experiences physical difficulties because his trade is at most, physically demanding. The injury he sustained has completely eliminated functionality of his left index finger. He can longer flex his left index finger towards the palm of his left hand^[2]. Sometimes he is angered when thinks of the incident, because his injury has limited his ability to perform to best at his trade.
    
17. The Complainant is just thankful that he got to the Accused on time when the incident occurred, because if he didn’t, the Accused would have hurt his mother or sisters, whom were at closest proximity to the Accused when he grabbed the machete.
    
18. The Accused has not apologised to the Complainant. The Accused came to stay with them at their residence, for a period after the incident occurred. The Complainant interacted with the Accused during that period but they never talked about the incident. However, despite that, the Complainant forgives the Accused for what happened.

Pre-Sentence report

19. Mr. ‘Akimeta Tu’utafaiva is 40 years old. Whilst he had been involved in violent episodes before as a result of his deteriorating mental health consequent to problems associated with alcohol and illicit drug addiction, he was hitherto of good character.
    
20. The probation report described him in this way:
    

Mr Tu’utafaiva had a stable upbringing, his father was an honorable church minister. He had a good education and strong support from his parents however; he had been involved with alcohol and drug abuse from a young age and could be due to associating with negative peers and there is a possibility of family trauma.

He has separated from his wife and children since 2014 and now lives with his father. He had violent episodes towards his household which has intensified leading to the offence.

He is generally healthy but suffers from his mental health issue caused by drug/alcohol problem. He was previously admitted as a patient of the Psychiatric Ward in 2016 and recently post-offence which he currently takes prescribed medication to stabilize his mental health.

He claims to have deep feeling of regret in committing the crime and hopes to undertake rehabilitation program.

Statutory maximum sentence

21. For an offence under section 107(1), 2(c) & (4) of the Criminal Offences Act the maximum sentence is 5 years’ imprisonment.

Discussion

22. If it is submitted that an aggravating feature of the offence is the permanent injury caused, then the offence of grievous bodily harm would have been more appropriate.
    
23. Why the full extent of that dangerous and violent outburst, apparently involving attacks on property and an attempt to injure another with the machete was not fully indicted is unclear.
    
24. Given that the sustained nature of the flare-up in violence by Mr. Tu’tafaiva was not the subject of any further charges, it would be wrong to sentence him for the other violent acts he committed that night. Accordingly, I ensure my sentence is limited to the offence he was charged with and no extraneous matters have influenced me.
    

The aggravating features are

1. use of a deadly weapon
2. victim unarmed
3. intoxication
4. lasting injury.
   

Mitigating features

1. remorse as demonstrated through his guilty plea
   

25. Given that the comparable sentences each involved use of a bladed article on defenceless victims, then use of a weapon and the victim’s vulnerability has already been taken into account.
26. I conclude a starting point of 3 years and 6 months is appropriate; that is to say 42 months, of which 30 % or 13 months ought to be deducted for the early guilty plea making 29 months, or 2 years and 5 months.
27. The last 12 months will be suspended for 2 years on the following conditions:
    
    1. not to commit and offence punishable by imprisonment
    2. report to Probation within 24 hours of release;
    3. be placed on probation;
    4. reside where directed.
       
28. During the time that he serves his sentence Mr. Tu’utafaiva must undertake a drug and alcohol awareness course.
    

Total sentence

29. 2 years and 5 months’ imprisonment, the last 12 months suspended for 2 years on the above conditions.
30. The 69 days served since his initial remand on 27 September 2023 count towards his sentence.
    

NUKU’ALOFA	N. J. Cooper
5 December 2023	J U D G E

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^[1] This Court have long denounced such offences in Hu’ahulu v Police [1994] Tong LR 93, where it was 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”.

^[2] A recent photograph of the Complainant’s injured hand is attached and marked Attachment 1. The photo depicts a depletion of the knuckle creases on the Complainant’s index finger due to prolonged non-flexion.