R v Fetu'u [2025] TOSC 30; CR-VAV 7 of 2024 (28 March 2025)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NEIAFU REGISTRY

CR-VAV 7 of 2024

BETWEEN:

REX

-Prosecution

AND:

TEVITA TALO LAKEPA FETU’U

-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Director of Public Prosecution & Mr G Aleamotu’a Crown Prosecution

via AVL

Mr A Pouvalu for the Accused

Date: 28 March 2025

1. THE CHARGES

1. On 28 February 2025, you pleaded guilty to the following charge:
   1. Count 1: Serious Causing Bodily Harm contrary to section 107(1), (2)(b) and (4) of the Criminal Offences Act.

2. CROWN SUBMISSIONS

2. On 21 March 2025, the Crown filed their sentencing submissions to assist the Court.
3. Aggravating and mitigating factors were submitted along with the following caselaw in support;
   1. Rex v Manukailea CR 171 of 2023
   2. Rex v Hafoka CR 90 of 2021
   100. Rex v Puamau CR 5 of 2018
4. A victim impact report was also stating the extent of the injury, the treatment that was recured, the effects of healing from the injury and the impact it had on his job as the operations manager of the family business.
5. In your case the Crown recommended the following sentence:
   1. Count 1 – 20 months’ imprisonment with the final 6 months suspended for 2 years on conditions.
      100. PRESENTENCE REPORT & MITIGATION PLEA
6. A report was received from the Probation Office on 24 March 2025 where I was told about your family, upbringing and personal history.
7. You are an active member of your church, the Free Church of Tonga, you are employed by a local construction company and you a married with 1 child and another on the way.
8. I am told that you have offered reparations to the Complainant’s family and that you are remorseful for the offending.
9. The probation office states that you are at low risk of reoffending and recommend a fully suspended sentence in your case on conditions.
10. Learned Counsel on your behalf also filed with the Court a mitigation plea for me to consider, along with case laws in support and two reference letters from your community.
    4. DISCUSSION
11. You have pleaded guilty to assaulting the complainant in a bar fracturing his jaw in two places, necessitating him undergoing hospital treatment for two weeks. It is said that this was in retaliation to a previous altercation or disagreement between you two. That is no excuse. No doubt while under the influence of alcohol you behaved in a way which cannot be tolerated and what you did caused considerable suffering to the complainant.
12. In addition, it cannot be said that you do not no previous convictions because you have it appears been unable to control yourself, I suspect again whilst drinking.
13. On the other hand, I accept that you have been remorseful and are usually a man of good character who holds a respected position at your local church where you are the leader of your youth group. Your learned counsel at paragraph 3 of his helpful submission, says you are “a person to be trusted as he obeyed God and complies with the Bible.” If so, what you did was doubly reprehensible. You ought to have known better, but you did not.
14. In my judgement, a custodial sentence is inevitable. This was an unprovoked attack, you are not a first-time offender, the victim sustained serious injuries, and the assault could have been fatal.
    5. STARTING POINT
15. The starting point in your case is 30 months’ imprisonment, from which I deduct 12 months to take account of your guilty plea, your cooperation with the police and your undoubted remorse that means a remaining18 months of imprisonment.
    6. SUSPENSION
16. I have struggled to see whether the whether your sentence can be suspended in whole or in part. On the one hand there are significant aggravating features here, the attack was essentially unprovoked. You are not a first-time offender; serious injuries were sustained by the victim and the assault could have been fatal.
17. On the other hand, I accept that your remorse is genuine that you have already made some attempt at a reparation, but I have particular regard to the fact that the victim as I am informed has forgiven you and bears you no ill feeling. That is a great tribute to his character which you would do well to emulate.
18. I have had close regard to the principles of Mo’unga where some, but not all of the criteria set out there apply to you. You are not young. You do not have an unblemished character although you have been free of criminal activity for some time, and I have been persuaded that you are likely to take the opportunity of a suspended sentence to rehabilitate yourself. You have pleaded guilty, co-operated with the police and demonstrated remorse.
19. Having regard to these factors I have decided that it is just about possible to suspend the whole of your sentence being 18 months which will be for a period of 3 years but that is upon strict conditions. You must not for the next 12 months enter licensed premises or a bar. And you must not during that period drink in public. I do not think it practicable to prohibit you from drinking at home though you would be very well advised to give up alcohol altogether because when you have done so in the past it seems you are unable to control yourself. You must during the course of the next 12 months undertake a course of counselling under the direction of the probation service and you must by way of additional compensation pay the sum of $1000 TOP within 18 months.
    7. FINAL RESULT
20. For Count 1 of Causing Serious Bodily Injury, I impose a sentence of 18 months’ imprisonment fully suspended on the following conditions for 3 years;
    1. You must not commit any offence punishable by imprisonment.
    2. You are placed on probation for the period of your suspended sentence.
    100. You are prohibited in the next 12 months from entering any licensed premises, bar, and from consuming alcohol in public.
    4. You must complete a counselling course under the supervision of the Probation Office within the 12 months.
    5. You must pay $1,000 TOP compensation to the complainant within the next 18 months.
21. I hope that what has happened serves as a lesson and I never see you again, however, be in no doubt any further offending during the next 3 years will result in this sentence of imprisonment being activated.
    

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NEIAFU

28 March 2025