R v Lisiate [2024] TOSC 109; CR 40-47 of 2024 (3 December 2024)

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

CR 40 – 47 of 2024

BETWEEN:
R E X
-Prosecution

AND:
[1] TEVITA LISIATE
[2] MAFUA ‘I VAHA PALU
[3] MESUILAME FINAU
[4] MOANA MASIMA
[5] RICHARD ERVIN VEA
[6] SALAMANI FILITONGA
[7] SOSIFA VATUVEI
[8] VILIAMI TONGAMANA
- Defendants

SENTENCE

BEFORE: LORD CHIEF JUSTICE MALCOLM BISHOP KC

Appearances: Mrs E Lui for the Crown Prosecution
Ms A Kafoa for Mr Lisiate, Mr Finau, Mr Vea & Mr Filitonga
Mrs S Fa’otusia for Mr Vatuvei, Mr Palu & Mr Tongamana
Mr Masima in Person
Date: 3 December 2024

1. BACKGROUND

1. All each of you stand to be sentenced for “Jointly causing grievous bodily harm” contrary to Section 106 (1) and 2(a) of the Criminal offences Act.
2. This was after a trial in which you pleaded not guilty, although you each pleaded guilty to common assault which I take into consideration.
3. The trial concerned what can only be described as a brawl which took place in the centre of Nuku’alofa in the early hours of the 17th of September 2023. There was a confrontation between two groups of opposing young men, one from the village of Ha’ateiho and the other from the village of Pahu.
4. It seems the Pahu contingent had a previous confrontation with those from your village and got the better of you so that the events in question are to be regarded and I do so regard them as an opportunity for revenge.
5. The brawl itself was of relatively short duration. Both sides exchanged blows and in short you and the opposing group all participated fully and indeed with enthusiasm in the ensuing fight.
6. Tragically one of those involved from Pahu suffered injuries and died shortly afterwards. I proceeded on the basis that his unfortunate death was not connected in any way with the brawl, I do this on the basis of the unchallenged medical evidence.
   2. CROWN SUBMISSIONS
7. The Crown submissions on sentencing were filed on 29 November 2024 to assist the Court.
8. Aggravating and mitigating factors were submitted for each of the Accused with the following caselaw:
   1. Rex v Filimone & Ors [CR 59-61 of 2010]
   2. Tupou v R [AC 16 of 2018]
   100. R v Pou’uhila [CR 104 of 2017]
   4. Rex v Lolohea [CR 85 of 2020]
9. The Crown submitted the following sentencing recommendations for the Accused persons:

CR 42 of 2024 – Mesuilame Finau

10. It is submitted that this Accused is the worst offender and delivered the most brutal assault on the deceased.
11. A starting Point of 6 years is recommended, uplifted by 12 months to reflect the seriousness of the joint attack and the use of a weapon resulting in 7 years imprisonment.
12. Accounting for mitigation, 6 months is to be deducted leaving a balance of 6 ½ years imprisonment.
13. Final recommendation for this Accused is 6 ½ years imprisonment with the last 2 years suspended on conditions.

CR 40 of 2024 – Tevita Lisiate

14. A starting point of 4 years is recommended with 12 months deducted for mitigation, leaving a total of 3 years imprisonment.
15. Final recommendation for this Accused is 3 years imprisonment with the last 12 months suspended for 2 years on conditions.

CR 41 of 2024 – Mafua ‘I Vaha Palu

16. A starting point of 4 years is recommended with 6 months deducted for mitigation, leaving a total of 3 ½ years imprisonment.
17. Final recommendation for this Accused is 3 ½ years imprisonment with the last 6 months suspended for 2 years on conditions.

CR 43 of 2024 – Moana Masima

18. A starting point of 4 years is recommended with 6 months deducted for mitigation, leaving a total of 3 ½ years imprisonment.
19. Final recommendation for this Accused is 3 ½ years imprisonment with the last 9 months suspended for 2 years on conditions.

CR 44 of 2024 – Richard Ervin Vea

20. A starting point of 4 years is recommended with 6 months deducted for mitigation, leaving a total of 3 ½ years imprisonment.
21. Final recommendation for this Accused is 3 ½ years imprisonment with the last 9 months suspended for 2 years on conditions.

CR 46 of 2024 – Sosifa Vatuvei

22. A starting point of 4 years is recommended with 12 months deducted for mitigation, leaving a total of 3 years imprisonment.
23. Final recommendation for this Accused is 3 ½ years imprisonment with the last 12 months suspended for 2 years on conditions.

CR 47 of 2024 – Viliami Tongamana

24. A starting point of 4 years is recommended with 6 months deducted for mitigation, leaving a total of 3 ½ years imprisonment. The Crown further deduct a year from that balance to reflect his change of heart and asking the deceased for forgiveness resulting in 2 ½ years imprisonment.
25. Final recommendation for this Accused is 2 ½ years imprisonment with the last 9 months suspended for 2 years on conditions.

CR 45 of 2024 – Salamani Filitonga

26. A starting point of 4 years is recommended with 12 months deducted for mitigation, leaving a total of 3 years imprisonment.
27. Final recommendation for this Accused is 3 ½ years imprisonment with the last 12 months suspended for 2 years on conditions.
    100. DEFENCE SUBMISSIONS
28. Counsels for the Defendants both submitted in submissions for sentencing received yesterday on 3 December 2024, that included mitigating and aggravating features and case law to assist the Court.
29. Ms Kafoa on behalf of her clients, Mr Lisiate, Mr Vea, Mr Filitonga and Mr Finau submitted that imprisonment would not be appropriate and disagreed with the starting point set by the Prosecution in their sentencing submissions. Ms Kafoa concluded in her submissions that the most appropriate sentence should be fully suspended one on conditions.
30. Mrs Fa’otusia on behalf of her clients, Mr Palu, Mr Vatuvei and Mr Tongamana submitted that any appropriate sentence should also be fully suspended on conditions in accordance with the current guidelines in Mo’unga.
    4. PRESENTENCE REPORT
31. A presentence report was received from the Probation Office for all 8 Accused persons. Some of these reports included additional reference letters from members of the community.
32. Each individual report detailed their personal history, factors in relation to the offending and the Probation Office’s recommendation on sentencing as follows:

CR 42 of 2024 – Mesuilame Finau

33. A fully suspended sentence under the conditions to, not to commit any offence punishable by imprisonment, to live where directed by the probation officer, undergo a course on life skill and drugs & alcohol under the direction of the probation officer, and complete 150 hours of community service.

CR 40 of 2024 – Tevita Lisiate

34. A partly suspended sentence for the Accused with the conditions, not to commit any offence punishable by imprisonment, to live where directed by the probation officer and to undergo a course on life skill and drugs & alcohol under the direction of the probation officer.

CR 41 of 2024 – Mafua ‘I Vaha Palu

35. A fully suspended sentence under the conditions to, not to commit any offence punishable by imprisonment, to live where directed by the probation officer, undergo a course on life skill and drugs & alcohol under the direction of the probation officer, and complete 100 hours of community service.

CR 43 of 2024 – Moana Masima

36. A partly suspended sentence for the Accused with the conditions; not to commit any offence punishable by imprisonment, to live where directed by the probation officer and to undergo a course on life skill and drugs & alcohol under the direction of the probation officer.

CR 44 of 2024 – Richard Ervin Vea

37. A fully suspended sentence under the conditions; not to commit any offence punishable by imprisonment, to live where directed by the probation officer, undergo a course on life skill and drugs & alcohol under the direction of the probation officer, and complete 100 hours of community service.
    

CR 46 of 2024 – Sosifa Vatuvei

38. A partly suspended sentence for the Accused with the conditions; not to commit any offence punishable by imprisonment, to live where directed by the probation officer and to undergo a course on life skill and drugs & alcohol under the direction of the probation officer.

CR 47 of 2024 – Viliami Tongamana

39. A partly suspended sentence for the Accused with the conditions; not to commit any offence punishable by imprisonment, to live where directed by the probation officer and to undergo a course on life skill and drugs & alcohol under the direction of the probation officer.

CR 45 of 2024 – Salamani Filitonga

40. An appropriate sentence to include the conditions; not to commit any offence punishable by imprisonment, not to associate with the Co-Accused unless agreed upon by the probation officer, to be placed on probation and to undertake suitable counselling direct by the probation officer.
41. I take into account the contents of all the Pre-sentence Reports in considering the sentence before me.
    5. DISCUSSION
42. What is surprising about this case is that although each of you pleaded not guilty to causing grievous bodily harm, all of you admitted your involvement during your police interviews which were not challenged in the trial.
43. Three of you were unrepresented at the trial for most of it and so your attitude may have been understandable however the remainder of you had the advantage of legal representation, that being said I must conclude in your favour that in view of your youth, the seriousness of what you did deterred you from facing reality and that your plea to common assault may have been may have been animated by an acceptance of culpability.
44. My judgement was predicated on my finding that what happened here was a joint enterprise, and so the individual behaviour of each of you is less central to my sentencing assessment then your participation in the enterprise.
45. Mesuilame Finau used a sii branch to repeatedly hit the head of the deceased. Tevita Lisiate punched and kicked the victims head, Moana Masima and Richard Ervin Vea also punched and kicked the victims head, Mafua ‘I Vaha Palu, also punched and kicked the victim’s head, Sosifa Vatuvei did the same, as did you Viliami Tongamana, the same applies to you Salamani Filitonga.
46. But I repeat the seriousness of what happened was because this was a joint enterprise. Accordingly I have decided not to concentrate on your individual participation but the cumulative effect of what you all did together. That means that I must treat you all as equally culpable and accordingly your punishment should be reflect this. I also bear in mind the concept of parity.
47. You shared a common motive namely revenge on those who had got the better of you previously. You were all intoxicated to some extent and although short, the attack was brutal and reckless.
48. On the other hand, you were all young and apart from Palu and Finau, are first time offenders. You all fully accepted what you did in interview with the police which makes your not guilty plea surprising.
49. I am quite satisfied that all of you are remorseful for what happened. I observed you closely throughout the trial, you all behaved respectfully and humbly, and it was plain to me that you were all deeply ashamed about what you did.
50. I have been assisted by the sentencing comparables helpfully submitted by the prosecution and submissions from Defence Counsels and the Probation Office with pre-sentence reports, although each case is to be determined on its own particular facts.
51. It is beyond argument that a sentence of imprisonment is unavoidable. The question is whether that should be of immediate effect or whether it should be suspended in whole or in part. That is more difficult in the case of you Mafua Palu and you Mesuilame Finau, because neither of you can be said to be a previous good character.
52. You Finau were sentenced on the 2 January 2024 to 4 months imprisonment fully suspended for one year for serious wilful damage, while you Palu were ordered to pay $200 compensation for common assault this means that both of you were found guilty while you were on bail for this matter although the suspended sentence occurred later than this offence and there is therefore no breach of that order.
53. Bearing in mind that I must proceed on the basis that the death of the victim was not caused by your behaviour and having regard to the provocation which the ongoing feud must have generated in your immature minds, its short duration, your acceptance during interviews of your part and what happened and what I am satisfied is your deep and sincere remorse, I take as a starting point 4 years imprisonment.
54. From that I deduct 12 months by reason of the mitigating factors I have already outlined leaving three years imprisonment. I bear in mind that you have all had a taste of prison because you were remanded for 5 months before being given bail, so any deterrent effect of imprisonment has already been experienced.
55. I have come to the firm conclusion not without a great deal of hesitation and reflection that I can suspend the whole of that sentence. I have considered the leading case of Mo’unga and apply the criteria there set out to the current case:
    1. Youth: You are all young, from ages 18-20 years old at the time of this offence and you were all of previous good character except Finau and Palu.
    2. Prospects of Rehabilitation: This is the strongest factor in your favour. I am totally satisfied that each of you has taken proactive steps to rehabilitate himself, through the abstention from alcohol and, more importantly by becoming reformed characters in that you have embraced your religion and are now faithful followers in the faith of the church of Jesus Christ of Latter-day Saints.
    100. Diminution of Culpability: there was no premeditation, as I found in my verdict and ruling. When you left your home there was no intention of becoming involved in a fight that only happened because of the jeering by the opposing group and their challenge to you.
    4. Co-operation with the Authorities: It is accepted in all cases that you did cooperate with the police in the sense that you told them everything they needed to know to bring home the case against you. And the way which the trial was conducted on your behalf accepted that you knew you had done wrong and admitted it frankly.
56. For these reasons I suspend the whole of your 3-year sentence for the maximum term of 3 years. This means that if during the course of the next three years you commit any offence punishable by imprisonment you will serve the sentence I have just imposed in addition to the sentence for that other offence.
57. This will be on a number of strict conditions. You must undertake 100 hours community service within 12 months. And each of you must pay the sum of $2000 to the family of the deceased within 6 months. This is but a token of your expiation. I make it plain that this in no way reflect the value of the life which was lost, that is beyond price but I do so in recognition that reparation however inadequate needs to be made.
58. Some of you have jobs and can pay that fine within 6 months, others must get a job and pay. I want to make it clear to each and every one of you that the community service order I have imposed will be closely monitored.
59. Any back sliding will likely result in the sentence I have just passed being implemented. I order that the matter return to this court before the end of January to assess the extent of your undertaking. Because your intoxication played a large part in what happened I make an order that you be prohibited from entering any licensed premises for the next six months. This order will be communicated to the police who will keep a close eye on you.
60. Be in no doubt, if any of you for the next six months goes to a bar or a nightclub you will be arrested and brought before me for sentence. You must attend a life skill, drugs and alcohol misuse course misuse course as organised by the probation service and the salvation army.
    6. FINAL RESULT
61. In Count 1 for Mesuilame Finau, Count 4 for Tevita Lisiate, Count 7 for Moana Masima, Count 10 for Richard Ervin Vea, Count 13 for Mafua ‘I Vaha Palu, Count 16 for Sosifa Vatuvei, Count 19 for Viliami Tongamana, and Count 22 for Salamani Filitonga, for jointly with each other causing grievous bodily contrary to section 106(1) and (2)(a) of the Criminal Offences Act, I impose a sentence of 3 years imprisonment fully suspended for 3 years on the following conditions:
    1. You must report to the Probation Office within 48 hours.
    2. You must complete 100 hours of community service within 12 months
    100. You must each pay a sum of $2000 to the family of the deceased within 6 months.
    4. You must not enter any licensed premises serving alcohol or night club within the 6 months
    5. You must complete a course on life skills and a course on drugs and alcohol misuse on the direction of the Probation Office.
62. This matter is to be mentioned again before this Court on 31 January 2025 at 10am to follow up on the progress on these conditions imposed.
63. That concludes my sentencing remarks. I desire to say first that the presence of violent offences where drink plays a part needs to be addressed and if there is an established connection between accused consuming alcohol in licensed premises and then committing violence offences then steps may need to be taken affecting the license of those premises. I asked that the authorities bear this matter in mind.
64. A very important reason for passing what some may regard as a merciful sentence is the steps which you have all taken to reform your lives. To this end, I appeal to the elders and members of the Church of Jesus Christ of Latter-day Saints to join together to support and guide these young Accused so that they may prove worthy of the faith they now profess.
65. Finally, I desire to express my condolences to the family of the deceased.
    

NUKU’ALOFA
HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
3 DECEMBER 2024