R v Latu [2024] TOSC 5; CR 47 & 48 of 2022 (8 March 2024)

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

CR 47 & 48 of 2022

REX
-v-
1. PENTIKETO LATU
2. TALIAI TAPUELUELU

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mrs. S. ‘Eliesa for the Prosecution
Mrs. S. Ebrahim for the Defendants
Date: 8 March, 2024.

The charges

1. On 24 November 2023, the Defendants were found guilty and convicted of one count of serious causing bodily harm, contrary to section 107(1), 2(c) and (4) of the Criminal Offences Act.

The Offending

2. In summary, on the evening of 26 June, 2021, the victim ‘Isileli Latu (“Isi”) an officer of His Majesty’s Armed Forces, walked pass the Neiafu Fire Station intoxicated. He got involved in an altercation with a third person who ran from him and into the fire station.
3. ‘Isileli followed calling out and inciting a fight. He caused quite a commotion despite being directed by the firemen on duty to leave.
4. The First Defendant is Police Officer Penitiketo Latu (“Latu”), who was on duty that evening and heard the commotion outside the fire station. The police station is located next door. Latu came out and took control of ‘Isi. Once inside the charge room, Latu told ‘Isi to face the wall in order for him to be searched. ‘Isi resisted and Latu scuffled with him.
5. Also inside the charge room were the Second Defendant, Police Officer Taliai Tapueluelu (“Tapueluelu”) and Officer Hopoi. They were on the same shift with Latu.
6. Latu said that ‘Isi was hard to control. Tapueluelu joined in the scuffle, wound his right arm across ‘Isi’s neck and then brought up his left arm to hold ‘Isi in a choke hold. ‘Isi fainted and fell to the floor. He was dragged inside the adjoining room, referred to during the trial as the watch house.
7. While ‘Isi laid unconscious and defenceless inside the watch house, Latu and Tapueluelu administered kicks to his head around his jaw and mouth area causing him serious injuries. The doctor described ‘Isi’s injuries as: a trismus (when patient has restricted capacity to open their mouth), odynaphagia (difficulty in swallowing), bilateral fracture (fracture on both sides of the jaw), displaced unfavourable fracture of the right body and left angle of the mandible (when plasm and tissue are pulling the bone away), in a favourable fracture, (meaning the skin and tissue can still hold the bone together), step in the occlusion 44 and 45 (fracture on right teeth 44 and 45- where when the patient bites), malocclusion on the left molars (teeth not touching) and parsthesia of the left angle of mandible towards L lower mandible (numbness of that area).
8. The Defendants then placed ‘Isi in the shower to wash the blood off him and his clothes. Then he was dragged and placed inside a prison cell until around 11pm, when he was taken to the Prince Ngu Hospital.
9. On 29 June 2021, ‘Isi was referred to Vaiola Hospital in Tongatapu for treatment. He was attended to by Dr. Po’ese who said that ‘Isi’s injuries were consistent with a blunt object applied to the face with force. In his experience such injuries, especially unfavourable fractures were rare. He had seen 2 or 3 in his working life. He recalled one occasion where the injuries were sustained as a result of a motor vehicle accident.
10. The treatment ‘Isi received was an open reduction internal fixation which involved putting in screws to stabilise his jaw and insertion of plates to assist with healing. There were on-going reviews thereafter to ensure progress.
11. During the trial, ‘Isi said that the plates and wires had all been removed and most things were back to normal except for bouts of forgetfulness.
    

Crown’s submissions

12. The Crown submitted the aggravating factors to be:
    1. The offending constituted a serious breach of the Defendants’ duty as police officers;
    2. This was a group attack;
    100. Targeting of the victim’s head;
    4. The Defendants’ wearing police officer boots when they committed the offending;
    5. The victim was unconscious at time of offending;
    6. The serious injuries sustained by the victim; and
    7. The Second Defendant’s admission to the offending after trial.
13. The mitigating features for the Defendants were;
    1. They are first time offenders; and
    2. Their remorse.
13. The Crown referred to the following comparable sentences:
    1. R v Hafoka (CR90/2021, 15 June 2021, LCJ Whitten KC) –the Accused pleaded guilty to causing serious bodily harm. He punched the victim’s face causing the victim to fall to the ground then he punched the victim again. The victim suffered two fractured lower left premolars and bilateral fractures to his left and right mandible (cracked teeth and a broken jaw). He underwent surgery to have his teeth removed and jaws aligned with wire. A starting point of 2 years and 2 months imprisonment was imposed, reduced by 6 months for mitigation. The final 10 months of the Defendant’s sentence was suspended for 2 years on conditions.
    2. R Fuatapu Puamau (CR5/2018, unreported, 18 August 2018) – it was not clear from the summary provided what the charge against the Defendant was, the plea and starting point. No copy of the decision was provided.
    100. R v Ma’afu Makasini (CR2/2016, unreported, 2 September 2016) – the Defendant pleaded guilty to one count of causing serious bodily harm, contrary to section 107(1), (2)(b) and (3) of the Criminal Offences Act. The Defendant and victim engaged in an argument. They were both intoxicated. When they parted ways, the Defendant hit the Victim with a rock injuring his head causing him to pass out. He continued to kick the Victim’s mouth twice breaking his right jaw and front braces. The Defendant was sentenced to 18 months imprisonment, fully suspended on conditions.
    4. Hu’ahulu & Anor v Police [1994] Tonga LR 93 – the Appellants both pleaded guilty to one count of causing bodily harm, contrary to section 107 of the Criminal Offences Act. No record as to the extent of the victim’s injury was provided. They were both sentenced to 9 months imprisonment.

The first appellant used a broken bottle on the victim’s face and the second appellant used a stone on his victim’s face.

They both appealed seeking a fully suspended sentence. The first appellant appealed on the ground that the punishment imposed was too severe and he was acting in self defence. The second appellant appealed on the ground he was a useful member of society. The Court squashed the 9 months imprisonment and sentenced the Appellants to 12 months imprisonment each and their appeals were dismissed.

5. Halalilo and Anor v Rex, AC 24 of 2022 (CR44 & 45 of 2022), 12 December 2022, Whitten P – the Defendants were police officers, convicted for common assault. They arrested the complainant who managed to escape. A chase ensued and the complainant fell. The Defendants caught up with him, kicked his head with their police boots and punched him. At some point during the attack the complainant became unconscious. The victim lost a tooth. A starting point of 8 months imprisonment was imposed, reduced by 2 months for mitigation. The last 2 months was suspended for 1 year on conditions. The Defendants appealed seeking a fully suspended sentence. LCJ Whitten KC refused the appeal stating: “To fully suspend the sentence, in this case, would have failed to give sufficient regard to or place sufficient weight on other relevant factors such as the seriousness of the offending and the particular circumstance of aggravation (namely, the Applicants being police officers), the effect on the victim and the sentencing objectives of denunciation and both general and specific deterrence.”^[1]

Victim Impact Report

14. The victim is currently abroad on the seasonal fruit picking scheme. He explained he was free of pain and discomfort in his jaw. He still experiences shocks from his hand to his head and temporary black-out visions.
15. He confirmed that Latu apologized to him which he accepted. He did not receive an apology from Tapueluelu.
16. The Crown submitted the following sentencing formulation:
    1. That a custodial sentence is appropriate with a starting point of 3-4 years imprisonment consistent with Hu’ahulu;
    2. For their lack of previous record and remorse, a discount of 12 months be given; and
    100. For the final 12 months to be suspended, leaving a final sentence of 2 years imprisonment.

Defendant’s submissions

17. Mrs. Ebrahim, for the defendants, submitted the mitigating features in favour of her clients were:
    1. Latu’s apology to ‘Isi;
    2. Their remorse;
    100. Lack of previous criminal record;
    4. Presence of element of provocation;
    5. Latu’s service in the police for 8 years and 14 years for Tapueluelu;
    6. The offending was out of character;
    7. ‘Isi’s forgiveness.
18. Mrs. Ebrahim agreed with the Crown’s suggestion of a starting point of 3 years imprisonment. She submitted it was appropriate to fully suspend their sentences on the basis ‘Isi did not wish to press charges against them.
19. Alternatively, it was submitted that that her clients were entitled to a substantial part of their sentence being suspended “...considering the Mo’unga principles” and on the basis that they are the breadwinners of their respective families, and a “lengthy imprisonment term will have a crippling effect in terms of their rehabilitation.”

Pre-Sentence Report

Pentitiketo Latu

20. Latu is 27 years of age and is the eldest of three children. He had a stable upbringing. His mother was a teacher and he accompanied her to Vava’u, Ha’apai and Tongatapu when she was posted to those islands. She passed away in March 2023.
21. He attended Tupou High School, Mailefihi Siu’ilikutapu College in Vava’u and ‘Apifo’ou College up to Form 7.
22. He married Uini of Hofoa in 2015 and they have a young family with 3 children ranging from ages 8 to 1 year old.
23. Latu was recruited to the Tonga Police Training School in 2015. He graduated in 2017. He has participated in special trainings related to illegal drugs and domestic violence. He had been in service for eight years and was ranked Police Constable prior to his suspension for this matter. Siaosi Paseka, his supervisor, spoke well of him.
24. He is a member of the Pentecost Church of Leimatu’a, but is not active. He is healthy and likes to smoke and consume alcohol with his peers.
25. Latu admitted to a history of domestic violence involving alcohol. He had previously been subject of a protection order taken out by his wife for violence against her. His wife reported he changed after that incident. The Probation Officer noted that during his interview, the Defendant admitted he still consumed alcohol with his peers.
26. He is the sole breadwinner for his family and is currently growing crops for commercial use.
27. The Defendant maintains his innocence, notwithstanding his apology to ‘Isi before and after the trial and expression of remorse and regret for committing the offence.
28. The probation officer ranked him as “moderate risk” of re-offending due to his continued alcohol abuse, violent history and inauthentic remorse. A partially suspended sentence was recommended.

Taliai Tapueluelu

29. Tapueluelu is 36 years of age and is the second of seven children. He had a difficult upbringing due to financial constraints.
30. He attended Vava’u High School and completed sixth form in 2004. In 2005, he joined the Tonga Police Training School and graduated in 2007. There, he participated in some local skills training.
31. He married Nenisi, of ‘Otea, Vava’u in 2010. They have five children, two girls and three boys ranging from 12 years to 7 months old. The three older children are in primary school. His wife described him as a hardworking and devoted family man and is the sole breadwinner for his family. He currently earns $500 a week from fishing which helps pay off his loan with MBF Bank.
32. He was ranked a Senior Constable at the time of suspension for this offending. He had previously been appointed as acting supervisor in Vava’u and Niuatoputapu.
33. He is a member of the Free Wesleyan Church of Neiafu. His church minister and town officer of Neiafu have described him as hardworking and reliable individual. He established the community police at Neiafu and contributes to protecting, promoting and maintaining peace in the community. In 2019, Tapueluelu was injured while on duty and had to undergo surgery. He has residual back pain as a result.
34. Tapueluelu admitted to the offending during his interview and expressed his remorse and regrets for taking the Court’s time in trial. He asked for mercy and leniency.
35. The probation officer ranked him as “low risk” of re-offending and recommended a partially suspended sentence.

Starting Point

36. The maximum statutory penalty for serious causing bodily harm is 5 years imprisonment.
37. The Crown in its submissions emphasized the view in Hu’ahulu 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.”

38. I agree that a custodial sentence was appropriate in this instant case. Anything less would amount to an encouragement or implicit acceptance of this kind of conduct from police officers who should be held to a higher standard of conduct and discipline.
39. There was limited assistance gained from the comparable cases cited by the Crown. For example, Halalilo was sentenced for common assault and as mentioned it was unclear what charges lay under Puamau.
40. I have gone on to consider R v Siale [2015] TOSC 13, and in particular CR 129/2014 R v Fa’apoi where the victim suffered multiple scalp lacerations as a result of having been assaulted by several persons including Mr. Fa’apoi. In that case, Cato J stated:

“Although this offending did not involve weapons, it was brutish group violence and ............ The violence was clearly premeditated. The maximum sentence for this offence is five years. I consider that a four year starting point is appropriate, in this case.”

41. In this instant, when ‘Isi was dragged into the watch house, he was already unconscious. He was no longer a threat to either the Defendants. When they were alone in that room they acted as a group and brutally administered the attack to his head causing the horrific injuries he suffered. There was no provocation from ‘Isi inside the watch house. The statutory powers of Tonga Police are for the prevention and detection of crime. This was an outrageous abuse of those powers.
42. Having regard to the seriousness of the offending, the relevant comparable sentences, the principles referred to above, the importance of imposing sentences which adequately reflect the community’s denunciation for this type of violence and the need for personal and general deterrence I set a starting point of 3 years imprisonment. For the breach of society’s expectation of protection and safety from police officers in the community and especially in their custody, the officers’ disregard of the victim’s injuries and failing to ensure he received reasonable medical care in a timely fashion and the residual impact of the injuries on the victim, I lift the sentence by 12 months, resulting in 4 years imprisonment.

Mitigation

43. For the Defendants clear criminal record, remorse and years of service in the police force, I deduct 12 months, resulting in a final sentence of 3 years imprisonment.

Suspension

44. At the outset, I am of the view that a fully suspended sentence is inappropriate in this type of offending and accept the view in Hu’ahulu that:

“To fully suspend the sentence, in this case, would have failed to give sufficient regard to or place sufficient weight on other relevant factors such as the seriousness of the offending and the particular circumstance of aggravation (namely, the Applicants being police officers), the effect on the victim and the sentencing objects of denunciation and both general and specific deterrence.”

45. As against the principles in Mo’unga [1998] Tonga LR 154;
    1. Latu is young and is a first time offender. I regard his apology, expression of remorse and regret for committing the offence, sufficient to weaken any insistence of innocence;
    2. I accept that he is likely to take the opportunity offered by a suspended sentence to rehabilitate himself;
    100. He has a history of violence and would benefit from courses on alcohol abuse and anger management;
    4. He has been described by the probation officer as “moderate risk” on the scale of re-offending”;
    5. Tapueluelu is not young but also holds a clean criminal record;
    6. Like Latu I accept, Tapueluelu will make use of any opportunity offered by a suspended sentence to rehabilitate himself;
    7. The probation officer considered him “low risk” on the scale of re-offending;
    8. I have considered all the references in Latu and Tapueluelu’s favour and have taken them into consideration; as well as
    9. The submissions that they are the breadwinners for their young families.
46. For those reasons, I consider it appropriate to suspend part of their respective sentences on conditions.

Result

47. Latu and Tapueluelu are both convicted of serious causing bodily harm and sentenced to 3 years imprisonment. The final 12 months of their sentence is suspended for a period of 2 ½ years on the following conditions, namely, that during the period of suspension, the Defendants are to:
    1. Not commit any offence punishable by imprisonment;
    2. Be placed on probation;
    100. Report to the probation office within 48 hours of their release from prison;
    4. Reside where directed by their probation officer; and
    5. Complete courses on alcohol and drug awareness, and anger management as directed by their probation officer.
48. Failure to comply with any of those conditions may result in the suspension being rescinded and the Defendants being required to serve the balance of their sentence.
49. Subject to compliance with the above conditions, and any remissions under the Prisons Act, the result is that the Defendants will be required to serve two years’ imprisonment.
    

NUKU’ALOFA	P. Tupou KC
8 March, 2024	ACTING LORD CHIEF JUSTICE

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^[1] Para.[12]