R v Vea [2023] TOSC 8; CR 130 of 2022 (27 January 2023)

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

CR 130 of 2022

REX
-v-
SEMISI PELEKETI VEA

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Fifita for the Prosecution
The Defendant
Date: 27 January 2023

The charge

1. On 13 December 2022, the Defendant pleaded guilty to causing grievous bodily harm, contrary to s 106 of the Criminal Offences Act.

The offending

2. On 6 August 2022, ‘Alifeleti Uasi, a 20-year-old male, was drinking alcohol with Kalonikali Maea at the latter’s residence in Halaleva. At one stage, Kalonikali went to buy cannabis from the Chinese shop at Houmakelikao. When he returned from the shop, he told ‘Alifeleti that the shop owner thought that ‘Alifeleti was a police officer. ‘Alifeleti found out that Ualani Vea, the Defendant’s brother, told the Chinese shop owner that ‘Alifeleti was a police officer, and he was furious with him.
3. ‘Alifeleti and Kalonikali then went to the Defendant’s residence in search of Ualani. The Defendant, who was at home, noticed ‘Alifeleti in front of a Chinese shop on the other side of the road, so he walked over to him. The Defendant asked ‘Alifeleti where his brother was, to which, ‘Alifeleti responded that he did not know. The Defendant told ‘Alifeleti to wait there. The Defendant then crossed over to some tanetane shrubs along the front of his home and retrieved a machete and concealed it behind his back. He then walked back to ‘Alifeleti and asked him why he had repeatedly annoyed his family. The Defendant then struck at ‘Alifeleti’s head with the machete three times. ‘Alifeleti used his left arm to block the strikes, resulting in severe injury to his forearm. The Defendant’s neighbour and mother stopped the Defendant from continuing to assault ‘Alifeleti who was then rushed to the hospital.
4. Over the next four days, ‘Alifeleti received treatment for his wounds. Dr Tu’ipulotu confirmed that the most serious of the lacerations to the victim’s arm was deep enough to chip the radial bone.
5. On 10 August 2022, ‘Alifeleti lodged a complaint with police. The Defendant was subsequently arrested and, when interviewed, admitted to the offending.

Crown’s submissions

6. The Crown submits the following as aggravating features of the offending:
   • (a) use of a machete;
   • (b) the Defendant’s actions were premeditated;
   • (c) the Defendant struck the Complainant three times with the machete;
   • (d) the strikes were aimed at the Complainant’s head;
   • (e) one of the lacerations to the Complainant’s left forearm was severe; and
   • (f) the Defendant acted in reprisal because the Complainant had, on recent occasions, gone to the Defendant’s house whilst intoxicated and abused the Defendant’s family members.
7. The Crown submits the following as mitigating features:
   • (a) plea of guilty at the first opportunity;
   • (b) first-time offender;
   • (c) co-operation with Police;
   • (d) the Defendant is only 18 years of age (17 at the time of offending);
   • (e) remorse and apology.
8. The Crown relies on the following comparable sentences:
   • (a) Toki (CR 106/2009) - the Defendant was convicted after trial of causing bodily harm and common assault. He had handcuffed the victim and then punched, kicked and stomped on him. Ford CJ referred to Hu'ahulu v Police [1994] Tonga LR 93, where it was stated that:

"The fundamental point is 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 offender. The likelihood of going to prison becomes a virtual certainty if two or more people take part in a joint attack on one person or in any case where the victim is kicked whilst he is on the ground and when a weapon of any type is used."

(b) Kaumavae Fakaanga (CR 172/2021) - The Defendant changed his plea to causing grievous bodily harm at the close of the Crown’s case at trial. He had used a machete on the Complainant, as a result of which, the Complainant lost a hand and had to be hospitalized for 2 to 3 months, which caused additional financial hardship. A starting point of 7 ½ years imprisonment was imposed with 6 months deducted for the late guilty plea. The final year of the resulting sentence was suspended for 2 years on conditions.
(c) Siokatame Tupou (AC 16/2018) - the Appellant appealed against a sentence of 6 years imprisonment for attacking two men with a machete causing one of them very serious injury. He had pleaded guilty to causing grievous bodily harm and serious bodily harm. The Appellant was 21 years of age and had consumed alcohol before committing the offence. He had been in a fight with one of the victims. He then went home for about 10 minutes and grabbed a machete before returning to repeatedly assaulting the victims. The Court of Appeal confirmed the starting point of 6 ½ years and resulting sentence, of which, the final 2 years were suspended.

9. The Crown submits the following as an appropriate sentencing formulation:
   • (a) a starting point of 5 ½ years imprisonment (distinguishing the instant case from the sentences imposed in of Fakaanga, ‘Aisake and Mafi because of the Defendant’s age, the injuries inflicted on the Complainant are less serious and have fully recovered without any permanent injury, no sustained attack, and no intoxication);
   • (b) reduced by 18 months in mitigation for the Defendant’s early guilty plea, cooperation with Police and good previous record;
   • (c) resulting in a sentence of 4 years imprisonment;
   • (d) of which, the final 3 years should be suspended on the usual conditions including courses in alcohol and drugs awareness and anger management.

Victim impact statement

10. The Defendant and his family apologised to ‘Alifeleti which he accepted. The injuries on his left forearm have healed and he has fully recovered. Dr Tu’ipulotu confirmed that the injuries will not affect the normal function of ‘Alifeleti’s arm.
11. ‘Alifeleti expressed the desire to be present at the Defendant’s sentencing to ask for the Court’s mercy and to offer moral support.

Pre-sentence report

12. The Defendant is the second of six children. He was raised in a ‘decent’ Mormon family. After the instant offending, he converted to the Assembly of God religion where he has been an active and committed member of that faith.
13. According to his mother, the Defendant was a “non-problematic teenager”. He dropped out of school during Form 4 to help her with the household duties. He is unemployed and does not hold any qualifications. He works in the bush to help support his family.
14. In relation to the offending, the Defendant told the probation officer that the incident occurred because of a previous issue between ‘Alifeleti and the Defendant’s eldest brother. On the day in question, the Defendant visited his mother who told him that ‘Alifeleti had been repeatedly annoying her and his younger siblings by threatening them with abusive words. The Defendant otherwise agreed with the summary of facts.
15. The Defendant and his mother went immediately to ‘Alifeleti family to apologise, which was accepted. The probation officer observed the Defendant to be genuinely remorseful. He is regarded by his family, friends, and community as well-behaved. As such, his offending is described as "baffling", "totally out of character" and "under the influence of peer pressure".

Starting point

16. The maximum statutory penalty for causing grievous bodily harm is 10 years’ imprisonment.
17. The Court has repeatedly denounced violent crimes, particularly those involving weapons, and cautioned that for those who commit such offences, even first-time offenders, ‘the likelihood of going to prison becomes a virtual certainty’: e.g., Hu’ahulu v Police [1994] Tonga LR 93. Machetes are primarily designed for bush work. Their prevalence and availability, when wielded as inherently dangerous weapons, continues to be a matter of grave concern for the courts and the wider community: Patelesio Mafi [2014] TOSC 13; Siokatame Tupou [2019] TOCA 8. Therefore, in cases such as the present, a deterrent sentence is necessary.
18. In terms of the severity or longevity of the injuries inflicted, the offending here is not as serious as in cases such as Aisake (CR 19/2019), Fakaanga [2022] TOSC 33 or Vaka [2022] TOSC 61 where significant permanent deficits resulted and for which starting points of 7½ years were set. There are parallels between the instant case and Mafi, ibid, in which a starting point of 6½ years was set. Yet the resolved injuries here were less severe than in Fakatene [2022] TOSC 36 where Cooper J set a starting point of 6 years.
19. Other factors must also be considered such as the retributive motivation for the attack, premeditation involved when the Defendant told the victim to wait at the shop while he retrieved the machete from his front yard and the repeated strikes aimed at the victim’s head. The Defendant’s actions were clearly foolish and reflective of the lack of judgment and discipline inherent in his youth.
20. While it is no excuse, the apparent prior abuse by the victim towards the Defendant’s family may be likened to the goading by the victim’s associates in Fakatene for which Cooper J reduced the primary starting point of 6 ½ years (in line with Tupou and Mafi) by 6 months.^[1]
21. By reason of the foregoing, I agree with the Crown’s submission that the appropriate starting point in this case should be 5 ½ years (or 66 months) imprisonment.

Mitigation

22. For the Defendant’s good previous record, co-operation with police, early guilty plea and demonstrated remorse, I reduce that starting point by one third resulting in a sentence of 3 years and 8 months (or 44 months).

Suspension

23. All the considerations discussed in Mo’unga [1998] Tonga LR 154 at 157 favour some suspension of the sentence. The Defendant is very young. He had a good previous record. He fully co-operated with the authorities. There was some provocation by the victim. He has demonstrated remorse; the victim has forgiven him, and they have reconciled.
24. That the Defendant is very young (17 years of age at the time of the offending), also attracts special considerations when determining an appropriate overall sentence: Afeaki [2020] TOSC 4. One of those is Article 37(b) of the UN Convention on the Rights of the Child, to which Tonga acceded in 1995, and which provides that:

"... The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time."

25. Even though the Defendant is no longer a child as defined in the Convention (under 18 years), and Tonga is still yet to enact domestic legislation to give effect to it, I consider it appropriate to give some effect to Article 37 through the available sentencing tool of suspension^[2]: Wolfgramm [2020] TOSC 78. However, that must be balanced by the requirement to also give effect to other relevant sentencing objectives such as punishment, denunciation, protection of the community, and general and specific deterrence.
26. Before concluding, I wish to record my concern about one matter. As noted above, the Crown submitted a sentence of 4 years with the final 3 years being suspended on conditions. However, in its indicative sentence submission, filed and served on the Defendant at the commencement of the proceeding, the Crown indicated that, upon a plea of guilty, it would submit a sentence of 2 to 3 years (later firmed to 3 years) with the final 18 months suspended. No explanation was given in the Crown’s submissions on sentence for the variance. While the Crown’s indicative sentencing submission cannot bind the Court when it comes to consider an appropriate sentence, a Defendant ought reasonably be able to expect, especially if no new facts come to light between the filing of the indictment and sentencing, that the Crown’s submissions on sentence will not significantly depart from its earlier indicative sentencing submission. Otherwise, the purpose of the indicative submission, to provide a Defendant (particularly when unrepresented) with relevant information before deciding his/her plea, may be undermined and unfairness may result.

Result

27. The Defendant is convicted of causing grievous bodily harm and is sentenced to 3 years and 8 months imprisonment.
28. The final 2 years of the sentence are to be suspended for a period of 3 years from the date of the Defendant’s release from prison on condition that during the said period of suspension, 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
    • (d) complete rehabilitative courses on anger management and life skills as directed by his probation officer.
29. Any breach of those conditions is likely to result in the Defendant being required to serve the balance of his term of imprisonment.
30. Subject to compliance with the above conditions and any remissions available pursuant to the Prisons Act, the Defendant will be required to serve a maximum of 20 months in prison.

NUKU’ALOFA	M. H. Whitten KC
27 January 2023	LORD CHIEF JUSTICE

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^[1] Considering the New Zealand approach in situations where the victim’s actions contributed to the offending, as set out in Hall’s Sentencing (NZ) 1.5.7 (d); R v Taueki CrA188 (1) .001.
^[2] Ss 24(3) of the Criminal Offences Act which permits the Court to suspend the whole or part of a sentence for any period up to 3 years.