R v Maloni [2024] TOSC 70; CR 119 of 2024 (4 October 2024)

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

CR 119/2024

REX

-v-

Sione Talafekau MALONI

Sentencing remarks

BEFORE : THE HONOURABLE COOPER J
Counsel : Mr. Tamau’a for the Crown
Fili represented Mr. Maloni
Date of
Sentence : 2 OCTOBER 2024

ORDER OF COOPER J
DATE OF ORDER 4 OCTOBER 2024

THE COURT ORDERS THAT

1. Mr. Maloni is sentenced to 12 months’ imprisonment fully suspended for one year.

REASONS

1. On 2 March 2024, for a joke, Mr. Sione Maloni poured gasoline over the shirt and pants of his sleeping friend, Taniela Kauvaka and set them alight.
2. Naturally this had the effect of waking his friend, his rapidly extinguishing the fire and finding that he had been burnt. I know not of the ensuing state of their friendship.
3. Mr. Taniela Kauvaka was seen at the hospital later that same day. Mercifully the burns, which were to his abdomen, were what has been described in the case summary as “superficial”.
4. Though not clear to me on the papers how they became involved, the police were notified, the would-be practical joker, Mr. Maloni, arrested and he was interviewed. He explained he was very sorry for what he had done it was more idiocy on his part than bravado and he fully admitted his guilt.
5. No doubt because the injuries were not grave and because he intended it to have been a joke (I imagine of the sort only young men truly can find amusing) he was charged with causing serious bodily harm.
6. When his case was listed before the Supreme Court he pleaded guilty to the single count.

Causing serious bodily harm

7. This offence, contrary to section 107 (1) and (2) (a) Criminal Offences Act carries a maximum sentence of 5 years’ imprisonment.

Crown’s sentencing submissions

8. The suggested tariff is one of 12-18 months’ imprisonment, with a discount of 6 months for a timely guilty plea.
9. The suggested final sentence is 12 months’ imprisonment fully suspended and a Community Service Order.
10. In assessing the suitability of the recommend sentence I have gone on to consider a number of sentences passed in the Supreme Court for offences under this same section.
11. They have included the following :
    • R v ‘Alifeleti Uasi CR 53/2020; Whitten LCJ set a starting point of 2 years’ imprisonment for an offence when rocks were thrown at a shop keeper causing a 5 cm laceration to his face.
    • R v Ma’afu Makasini CR 2/2016; an 18 month sentence fully suspended for a deliberate assault throwing a rock at the victim’s head to knock him unconscious, then kicking him in the mouth.
    • R v Ma’ake Pasina CR 15/2022; a 3 ½ year starting point for a knife attack that left the victim with stab wounds, 4 cm wide to shoulder and 3 cm wide to forearm.
    • It has not been possible to find a case that is comparable to the instant offence. R v Naufahu [2016] TOSC 18 was for grievous bodily harm (which carries a 10 year maximum sentence) were a starting point of 8 years was set, the victim in that case received burns to 35-40 percent of her body and permanent and grave scaring and injury. I do not need to say that it was for a very different act with much more serious consequences.
12. It appears to me that Crown’s submissions are entirely reasonable in the circumstances.
13. Given the Court was considering a non-custodial disposal, a pre-sentence report was not required. In order for Mr. Maloni to receive the reassurance of knowing his fate sooner rather than later appeared the best course. Mr. Maloni was asked about himself and his attitude in regards to what he had done and the salient points are summarised below.
    • This was horse-play, albeit very stupid and capable of causing serious injury.
    • Mr. Maloni has never been in trouble before.
    • He admitted his guilt to the police and pleaded guilty.
    • Plainly he is ashamed and remorseful.
    • At Court he was supported by both his parents.
    • He is young, only 20 years old.
    • He works hard helping his father at their tax allotment.
    • No serious injuries were caused and none were intended.
14. Bearing all these factors in mind I set a starting point of 18 months’ imprisonment to reflect the seriousness of what happened. The potential for real and lasting injury cannot be ignored.
15. That is reduced to 12 months to reflect the factors listed above.
16. Given his youth and remorse and good character his sentence will be fully suspended for 12 months on the following conditions:
    1. To report to probation no later than 1400 hrs today 2 October 2024
    2. Not to commit any offence punishable by imprisonment
    3. To perform 40 hours community punishment

Conclusion

17. 12 months’ imprisonment fully suspended for 12 months on conditions.
    

SUPREME COURT	4 OCTOBER 2024
NUKU’ALOFA	COOPER J