R v Saafi [2023] TOSC 65; CR 145 of 2023 (7 December 2023)

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

CR 145/2023

REX
-v-
Hotili Niutupu’ivaha Saafi

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J
Counsel: DPP Mr. J. Lutui for the Prosecution
The defendant for himself
Date of: 7 December 2023

The recommendations in the report on Gender Based Violence^[1] have been reviewed and considered in passing this sentence including the need to anonymise those made victims of gender based violence.

1. Mr. Niutupu’ivaha Saafi falls to be sentenced for two offences. Serious bodily harm and common assault. These offences both arise from events on 4^th March 2023.
2. Mr. Saafi had been in a relationship with Miss X. They have children together. But they were separated by March 2023.
3. In an attempt to rekindle their relationship Mr. Saafi asked a friend of Miss X’s to arrange a meeting. In time this took place and that was 4^th March 2023. Miss X did not want a relationship with the defendant. Miss X and her friend had to do some shopping. They got into a car to leave whereupon, uninvited, Mr. Saafi got into the back seat of their vehicle.
4. They drove into town and Mr. Saafi remained in the car. So that he could be returned to his home without any of the women having to be left alone with him, Miss X remained in the vehicle with her friend as they returned him to his home in Lavengatonga.
5. Once at Lavengatonga Miss X opened the rear car door for Mr. Saafi to leave and that is when he attacked her, grabbing her around the throat and strangling her.
6. She managed to escape, but only momentarily, for he caught up and punched her first aiming at her face and then to her left eye, jaw, arm and stomach. He threatened to beat her until she died and also harm their children.
7. She was taken to hospital and treated by Dr Kasalaine Fisi’ilose who noted the following injuries
   1. Small laceration on left upper eyelid with no subconjunctival bleeding:
   2. Swelling of left jaw;
   3. A small piece of chipped-off her left lower molar.
8. Previous convictions

OFFENCE	SENTENCING DATE	COURT	SENTENCE
Theft	20 June 2012	Magistrate Court	3 months imprisonment
Theft	30 January 2014	Magistrate Court	3 months imprisonment fully suspended for two years
Housebreaking Theft	5 March 204	Magistrate Court	Both concurrent sentences – 6 months imprisonment
Theft	16 January 2015	Magistrate Court	Fine of $100.00 to be paid within 2 weeks or 2 weeks imprisonment
Drunkenness	21 January 2015	Magistrate Court	Fine of $100.00- or 2-weeks imprisonment
Drunkenness	23 June 2015	Magistrate Court	Fine of $100.00- or 2-weeks imprisonment
(1) Serious Housebreaking (2) Theft	3 June 2022	Supreme Court	(1) 20 months imprisonment with the final 6 months suspended for two years on conditions. (2) 10 months imprisonment

9. The Crown make the following submissions

AGGRAVATING FEATURES

1. The Accused is not a first-time offender.
2. The Accused’s actions were unprovoked.
3. The Accused’s actions were in a continued pattern. He strangled the Complainant’s neck, chased and caught her, then repeatedly punch the Complainant’s left eye, jaw, arm and stomach.
4. The Accused did not stop assaulting the Complainant on his own volition. The assaulting stopped because the Complainant managed to escape from him.
5. The Complainant was defenceless.
6. The Complainant is the Accused’s ex-partner whom she trusted to the extent that she agreed to meet him on this day. To discuss any possibility of getting back together. However, this trust is breached with no protection offered by the Accused.
7. The Accused did not cooperate with the Police.

MITIGATING FEATURES

1. The Accused’s early guilty plea.
   

These are the features the Court has taken into account:

Aggravating features

1. Assault on a vulnerable victim
2. Targeting of the face
3. Sustained attack
4. The attack took place after the defendant intruded into a private area where he was not meant to be.

Mitigating features

1. His guilty plea

Pre-sentence report

10. The report sets out the defendant is 29 years old, has a number previous convictions, though mostly older offences, a history of alcohol and illicit drug use and has in the past been abusive and violent to the woman who he attacked in this case. That was often in the context of being intoxicated.
11. This is important to note, because in the pre-sentence report Mr. Saafi attempted to deflect the reasons for his violence. He claimed that she was being unfaithful, keeping their children from him.
12. By raising contentious factors like these, it shows Mr. Saafi is not truly remorseful, but trying to shift the blame to his former partner, the victim of his violence. This Court is quite clear about what he was attempting to do and does not accept for one moment that what he told the probation officer could ever be a reason for acting as he did.
13. He is assessed as being at a high risk of re-offending.
14. It is recommended that there be a partial suspension of his sentence in the hope he re-habilitates.
15. Mr. Saafi was the subject of a suspended sentence at the time of this offence. He had only been released from prison just days before committing this offence.
16. The penalty for serious causing bodily harm is in section 104(4) of the Criminal Offences Act. The maximum penalty is a term of imprisonment not exceeding five years.
17. The penalty for common assault is in section 112 of the Criminal Offences Act. The maximum penalty is a fine not exceeding $5,000.00 or imprisonment for a period not exceeding one year, or both.
18. The Crown’s submissions as to comparable sentences are these:
19. R v Fale’one Sitiveni Hafoka, CR 90 of 2021
    
    • (a) The Accused pleaded guilty to causing serious bodily harm.
      
    • (b) On or about 28 November 2020, at Veitongo, the victim was at a Chinese shop asking customers for money to buy food for his soccer team when one of the soccer boys showed up crying. He said that he had been beaten up by drunk boys at Pahulu Hafoka’s residence. The victim then went with others to the residence to find out why the boy had been beaten up. When they arrived, the Defendant and two other boys were angry at the victim. The victim and the soccer boys then returned to the Chinese shop. The Defendant followed, approached the victim from behind and punched him in the face, causing him to fall down. The Defendant then punched the victim again while he was on the ground.
      
    • (c) The victim suffered two fractured lower left premolars and a bilateral fracture of the left and right body of the mandible (i.e., cracked teeth and a broken jaw).
      
    • (d) On 3 December 2020, due to the severity of his injuries, the victim underwent surgery to have his teeth removed and his jaws aligned with wire. He was discharged from hospital three days later.
      
    • (e) The Accused was 23 years old, apologised to the Complainant, cooperated with the Police and is a first-time offender.
      
    • (f) The Complainant was unable to eat solid food while at the Hospital. He is missing two of his left molars and is unable to open his mouth widely. At the date of sentencing, the victim was still unable to eat solid food.
      
    • (g) In consideration of the seriousness of the offending, the injuries sustained by the victim and their ongoing impacts on his quality of life, that intoxication affecting self- control is an aggravating factor, a starting point of 2 years and 2 months imprisonment imposed.
      
    • (h) For the Accused’s early guilty plea the starting point is reduced by 6 months, resulting in a sentence of 20 months imprisonment.
      
    • (i) The Accused was sentenced to 20 months imprisonment with the final 10 months suspended for two years on conditions.
      

Rex v Fuatapu Puamau, CR 5 of 2018

(a) The Victim was a female security guard and she was on duty on the night of the offending. The Accused, who was drunk, was causing a disturbance on the road, so the Victim told him to go home and threatened to call the Police. At this time, the Accused walked over to her and punched the Victim on her mouth causing her to fall to the ground and lose consciousness. As a result of this assault the Victim lost three of her teeth which two other teeth had to be wired to stay in place.
(b) The Accused pleaded guilty to his indictment at the earliest opportunity. He was a first-time offender and he cooperated with the authorities. He was remorseful and he was also a young offender, being only 20 years old. The Victim was left in permanent disfigurement having lost some of her teeth, and remained in considerable pain when eating with her teeth that required wiring.

20. The offending before the Court is gender based violence and domestic abuse. Neither of the cases referred to deal specifically with these significant factors.
    

Victim impact report

21. Since the offence Mr. Saafi has repeatedly telephoned the victim. He offered an apology, but that was to try to persuade her to drop the charges.
22. During the attack, he told his victim it was revenge for not being in a relationship with him.

Sentence

23. I consider that terms of imprisonment for both offences are appropriate and that they should run consecutively.

Consecutive or concurrent sentences

24. Consecutive sentences are generally only appropriate for unrelated offences; Kolo v Rex [2006] TOCA 5 at [11].
25. In this case there was a sustained attack, with the victim chased, then punched to the face and the body. She received injured to her teeth and her face. She was the strangled.
26. Because of the sustained nature of the attack on a vulnerable victim I consider it essential to mark every part of the attack with a sentence of imprisonment, to denounce and punish such behaviour.
27. I have considered the case of R v Fate, Fate and Palu, 317 to 319 2020. Lord Chief Justice Whitten KC considered in that case the correct starting point for an offence of common assault, where the first defendant had attacked a man, striking him to his head and causing him to blackout. For that offence a starting point of 6 months imprisonment was arrived at, before any necessary adjustments for youth, guilty plea and previous good character.
28. A starting point of 3 years is merited. This is increased to 3 years and 6 months for the aggravating features as well as the repeated contact of the victim after the offence
29. This is reduced by 13 months for his early guilty plea.
30. Reductions in sentenced for early guilty pleas are a standard feature of cases this Court. It encourages defendants to plead guilty, avoids trials and avoids witnesses having to attend court.
31. That gives a sentence of 2 years and 5 months’ imprisonment.
32. For the offence of common assault 6 months. This reduced by 30 % for the early guilty plea; 4 months’ imprisonment.
33. The sentence in count 2 is to be served consecutively to that in count 1. That gives 2 years and 9 months.
34. I activate the 6 month suspended sentence that was breached and order that must be served before the sentence for the instant offence.

Totality

35. I have gone on to consider whether the overall sentence of, firstly count 1 and count 2 being consecutive is appropriate, then, whether that sentence served after the suspended sentence is excessive. In both cases I conclude it is not because (i) the history of violence to the victim as set out in the pre-sentence report 197/2021, (ii) the history of offending (iii) the fact of this being gender-based violence, (iv) the fact of offending so soon after being released on licence.

Suspension

36. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
37. Those principles, as set out in that case, aim to promote rehabilitation.
38. The considerations advanced were whether the defendant was young, of previous good character, or passed long time without offending; whether the defendant would take the opportunity to rehabilitate.
39. I note that Mr. Saafi is assessed as a high risk of re-offending, he has continued to contact the victim even trying to persuade her to drop the charges. To probation he gave contentious reasons for his violence behaviour that tended to deflect the blame on to his victim.
40. For all these reasons I conclude that no portion of his sentence should be suspended.
41. This offence he committed 19 days after his release, that is to say less than 3 weeks after his early release.

Total sentence

42. 6 months suspended sentence is activated in whole.
43. At the conclusion of that sentence Mr Saafi is to serve 2 years and 9 months’ imprisonment.
44. During his time in custody he is to complete a life skills course with a focus domestic abuse prevention.
45. The 84 days he has served on remand will count towards his sentence.
    

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

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^[1] ICAAD Human Rights Innovation. Track GBV: Pacific Regional Analysis and Tonga Country Report 2000-2021