R v Taufa [2024] TOSC 19; CR 64 of 2023 (26 March 2024)

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

CR 64/2023

REX

-v-

Christopher TAUFA

Sentencing remarks

BEFORE: THE HONOURABLE COOPER J
Counsel: Miss Kafa for the Prosecution
Mr. Taufa was unrepresented.
Date of: 26 March 2024

ORDER OF COOPER J
DATED 26 MARCH 2024

SENTENCE:

1. 30 months’ imprisonment, the last 6 months suspended on conditions.
2. The sentence is backdated to the date of Mr. Taufa’s first remand; 8 August 2023.
   

Reasons for the sentence imposed

1. On 8 January 2024 Mr. Christopher Taufa appeared for his trial. He was unrepresented.
2. He faced a two count indictment alleging attempted murder and, in the alternative, grievous bodily harm.
3. On his application the case was adjourned overnight to allow him more time to study the committal papers. On 9 January, following discussions with Crown, he was re-arraigned on count 2 and entered a guilty plea.
4. The victim in this case was Mr. ‘Afa Hingano ‘Ahokava. At the time of the events we are concerned with, 23 December 2022, Mr. Taufa and Mr. ‘Afa Hingano ‘Ahokava were neighbours. At approximately 1700 hrs that day, they started drinking together at Mr. ‘Afa Hingano ‘Ahokava’s fale.
5. Mr. Taufa became violent and struck Mr. ‘Afa Hingano ‘Ahokava with a piece of wood to his head. Mr. ‘Ahokava then tried to run away but he was struck again, that was all he knew of what happened to him.
6. His sister Ofoi, who was nearby at her fale, came when she heard noise of the fracas. She found Mr. Talanoa with blood on his hands and face so she fled and got her father, Kepueli ‘Ahokava.
7. When Kepueli ‘Ahokava arrived, Mr. Taufa told him he had killed his son. This led to an altercation between Kepueli ‘Ahokava and Mr. Taufa, it seems someone intervened to break that up, but in the meantime the police had been called.
8. Mr. Kepueli ‘Ahokava found his son lying on the ground, apparently unconscious, with bloodied face. The bruises around his eyes had caused them to swell shut and blood was coming from his nose, his eye brows and lips were injured. He noticed a piece of timber he described as a piece of 4 x 2, that had nails sticking out of it which was blood stained, found next to a siale mohe branch.
9. His son was urgently taken to hospital.
10. Mr. ‘Afa Hingano ‘Ahokava was not discharged until 27 December.
11. Dr. ‘Isileli Tu’ipulotu provided a medical report dated 16 January 2023. Mr. ‘Ahokava was found to have the following injuries:
    
    1. bruising to mouth and chin with swelling of left cheek;
    2. small wound at mid chest level;
    3. left eyebrow laceration, the length of his eyebrow, “deep to the bone”; and
    4. intracerebral bleeding to the head.
12. On 14 January 2023 Mr. Taufa was interviewed by the police. He admitted attacking Mr. ‘Afa Hingano ‘Ahokava, hitting him with both the branch and the piece of timber, as well as striking him to his chest, foot and stomach.

Guilty plea

13. Mr. Taufa’s plea came on the first day of trial. The Crown took some time on that day to consider his offer for a plea to count 2. From this it is clear to me that it was the first time this had been considered, as such it was the first time it was available to Mr. Taufa. I reiterate, that he was unrepresented. Given these circumstances I conclude that it is right to treat his plea as having been made at the first available occasion. The offer to drop count 1 in exchange for a plea to count 2 had never been available before to him up until then. He had no legal representative to advance his interests in any negotiations with the Crown’s lawyers.

Victim impact statement

14. None has been provided.

Crown’s submissions

Mr. ‘Afa Hingano ‘Ahokava’s injuries

15. It is quite plain the Crown’s case was that Mr. ‘Ahokava had not only sustained serious injuries, but the attack has been extreme.
16. They perhaps rely on that statement Mr. Taufa made to the victim’s father, that he had killed him, as a reflection of his then state of mind.
17. In the Crown’s sentencing submissions, under aggravating features, they have submitted Mr. ‘Ahokava “...sustained significant head injury with associated intracerebral bleed. He also had a left eyebrow laceration. He was admitted to the hospital on 23 December 2022, and he spent 4 days in the hospital, until he was discharged on 27 December 2022.”
18. Dr. ‘Isileli Tu’ipulotu provided a medical report for trial the Crown relied on. The Doctor had not been asked what was meant by a “significant” head injury, nor what an “intracerebral bleed” was, how severe a bleed it had been and whether it had been life threatening.
19. The Doctor did not give any opinion as to the extent Mr. ‘Ahokava’s life had been put in jeopardy, if at all. The Doctor did not appear to have been asked, because he gave no opinion as to the degree of force that caused the injuries.
20. These were all essential for the Crown to build their case in respect of the allegation of attempted murder, but were entirely absent.
21. The Photographs were not clear. The piece of timber with the nails said to have been a weapon Mr. Taufa used was not photographed, nor the Mohe branch. The medical report made no reference to puncture wounds consistent with nails or that any injury was or could have been so caused.
22. There was no statement relating to a forensic examination of that piece of wood, or of the stick said to have been used as a weapon.
23. For a case alleging offences of this gravity, a forensic examination of the weapons was essential.
    
    • How extensive was the blood staining on any weapon?
    • What type of staining was it?
    • Was there evidence of contact blood staining?
    • Had there been observed airborne transmission of blood droplets?
    • If so, how wide a spread?
    • If that was observed, at what distance from the site of the contact staining did that occur?
24. All of these basic questions are fundamental in building both a picture of the ferocity of an attack as well as building a case for trial. This material would also inform the Court when it comes to sentence.
25. Because there was no evidence of a forensic examination of the weapons there was a significant gap in the evidence. As noted above, there were no photographs of them at all. The medical report assisted in providing only a rudimentary description.
26. What of the injury to Mr. ‘Ahokava’s eye brow? It was said to be “deep to the bone”.
    • Was the bone exposed?
    • How deep was the wound, how long was it?
    • We know he received nylon sutures, though not how many.
    • What sort of force would the Doctor expect was required to cause that injury?
    • Was it consistent with being hit with either the piece of timber or the stick?
    • If so, which and why did the Doctor conclude that?
27. These gaps in the evidence are in no way Dr. Tu’ipulotu’s fault. That cannot be stressed enough. Without being carefully and systematically required to provide an opinion covering the fundamental inquiries as to type of injury, nature of causation and opinions as to gravity, he would not know to respond in that detail.
    

Pre-Sentence report

28. Mr. Taufa is 38 years old, divorced, has no children and at the time of the offence lived in Nualei managing his own plantation. He grew up, the only child to stay at home and support his mother, all his siblings married and moved on.
29. There was a time that he worked employed by a local fishing company.
30. Mr. Taufa told the Probation Officer of his great shame and regret in committing the offence.
31. He was assessed as being at a high risk of re-offending and as a high risk to the community.
32. He apparently told the Probation Officer that he blamed the victim for marijuana plants missing from his plantation and other missing property and this led to the dispute and attacking the victim.

Crown’s sentencing submissions

33. They have submitted the following cases as providing guidance:
    • (1) Sione Lolohea (CR 85/20) a starting point of 6 years, on a count of grievous bodily harm, where the defendant struck his sleeping victim blinding him.
      
    • (2) Soane Patita Toutai’olepo [2020] TOSC 3The court set a starting point of 4 years was set on a count of grievous bodily harm where the defendant used a rock to strike the victi, knocking him unconscious. He was caused a compound depressed fracture to the left temporal bone which required surgery.
      
    • (3) Rex v Mo’ale Vi (Unreported, Supreme Court, CR 55 of 2017, 31 August 2017, Cato J). An offence of grievous bodily harm. The victim was a fireman, so public servant. He was attacked while he slept by the defendant; it was revenge for a previous dispute earlier that same day. The defendant accused his victim a fractured skull when he beat him with a lead pipe to the head. A starting point of 4 ½ years was imposed.
      
    • (4) Mumuhu Pou’uhila (CR 104/17) – The defendant threw a brick at the victim, hitting his face, blinding him in one eye. On a count of grievous bodily harm, a five year starting point was set.
      
34. On the evidence before me, Mr. ‘Ahokava was:
    • knocked unconscious
    • received a cut to his eyebrow that was cleaned and closed with sutures,
    • suffered an intracerebral bleed
    • Was treated in hospital for 4 days during which time he suffered from dizziness and vomiting.
35. Whether Mr. ‘Ahokava’s head injuries were caused by the branch or the piece of timber has not been explained.
36. There were no witnesses. Mr. ‘Ahokava told police he was hit to the eyebrow with the piece of “4 x 2” timber. How reliable was his recollection when he was apparently knocked out shortly after? Mr. Taufa disputed that was the weapon.
37. In interview Mr. Taufa stated he hit the victim to the eye brow with the stick. He also admitted hitting Mr. Ahokava with the piece of wood that contained the nails. He accepted he had used it to strike him to the stomach, chest and foot.
38. He accepted he punched his victim all over his face.
39. Admitting using a piece of wood with nails in it as a weapon, is in no way the same as admitting to using the nails in a piece of wood as part of the weapon a victim was struck with. There is a significant difference.
40. He was not asked, nor did he admit to causing any particular injury with a weapon. Though it can be deduced the chest injury was caused by the piece of timber because he admitted using that to strike his victim to the chest.
41. The photograph booklet has pictures of Mr. ‘Ahokava in hospital. They clearly show bruising to one of his shoulders, his head bandaged and his mouth bloodied and lips swollen. There is a laceration to his forearm and a chest wound.
42. There is no evidence that he received any permanent injury.

Previous convictions

43. The Accused has one previous conviction on his record from the Forensic Department of the Ministry of Police as follows –
44. CR154,155/2021 – he was sentenced on 19 November 2021 at the ‘Eua Magistrates Court to a total fine of $500.00 for unlawful possession of drugs utensils, and drunkenness.
45. The Cases the Crown have referred to all involve far more serious injuries being caused than there is evidence of in this case.
46. Given the state of the evidence before me, I have gone on the consider the following cases:

Sione Kivalu & others (CR 162-164/2019) – Kivalu was charged with causing serious bodily harm. His co-offenders were charged with common assault. They all pleaded guilty to the offending which was instigated by school rivalry. For Kivalu, a starting point of 2 years’ imprisonment was imposed.

Ma’afu Makasini (CR 2/16) – the Defendant pleaded guilty to one count of causing serious bodily harm. During an argument fuelled by intoxication, the Defendant hit the victim from behind with a rock to his head, rendering him unconscious and then kicked him to the mouth. He was sentenced to 18 months’ imprisonment fully suspended for two years, probation for 18 months and alcohol and anger management courses.

Soane Patita Toutai’olepo [2020] TOSC 3 (CR174/2019) – the Defendant pleaded guilty to grievous bodily harm. In another incident involving school rivalry, the Defendant, who was 18 years of age at the time, threw a large rock at the victim which struck him on the left side of his head rendering him unconscious with a compound depressed fracture to the left temporal bone of his skull which required surgery. A starting point of 4 years’ imprisonment was imposed.

Sentence

47. Any offence that involves using a weapon to attack another person to their head will almost certainly have to attract a prison sentence it being so serious.
48. A 3 year starting point is appropriate in this case. That must be increased by 6 months to reflect the fact that two weapons were used, the branch and the stick and the repeated nature of the attack.
49. For his guilty plea a 30 % reduction is merited in this case, because that was the first time the Crown had considered his offer of a plea on the basis of accepting count 2 and not proceeding against him on count 1.
50. Therefore, 42 months reduced by 12. That gives a sentence of 30 months’ imprisonment.

Suspension

51. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
52. Those principles are aimed at promoting rehabilitation.
53. The key points being whether the defendant was young, of previous good character, or passed long time without offending; whether the defendant would take the opportunity to rehabilitate.
54. While Mr. Taufa is 37, he has only one previous conviction and pleaded guilty. A portion of his sentence ought to be suspended.
55. I conclude that the last 6 months of his sentence should be suspended for 12 months on the following conditions:
    1. report to probation within 48 hours of his release;
    2. live where directed;
    3. be placed on probation, and
    4. complete courses in life skills and anger management and drug rehabilitation.

Conclusion

56. 30 months’ imprisonment, the last 6 months suspended on the above conditions.
57. His sentence is backdated to his first remand 8 August 2023.
58. Any breach of those conditions or by committing a criminal offence during the term of the suspended sentence will lead to being resentenced and sent to prison.
    

NUKU’ALOFA	N. J. Cooper
26 March 2024	J U D G E