IN THE SUPREME COURT OF TONGA

R

v

Taufa

Supreme Court, Nuku'alofa
McElrea J
CR 276/03

19 October 2004

Sentencing – mental illness – mitigating factor

The facts are set out in the Supreme Court decision reported at [2004] Tonga LR 336.

Held:

1. The maximum term of imprisonment for grievous bodily harm was one of 10 years. Without mitigating factors a sentence in the order of 7½ or 8 years imprisonment would be required.

2. The medical condition was a mitigating factor and led to a substantially reduced level of self-control, even though he was not insane. That justified a considerable reduction and taken together with the other matters put forward the conclusion of the Court was that a term of imprisonment of 4½ years was appropriate.

3. On the grievous bodily harm charges the Court ordered that the prisoner would serve a term of three years (cumulative on the existing sentence of six years). The balance of 18 months would be suspended for a period of three years on five conditions. On the charge of bodily harm, where the damage was much less severe, the sentence was one of two years imprisonment (concurrent with the 4½ years sentence).

Counsel for prosecution: Mr Kefu
Counsel for the prisoner: Mr Niu

Sentencing Remarks

This is a difficult sentencing that arises out of an incident which occurred at Malapo on 23 February 2002.

The prisoner attacked three people with a machete - his wife, his mother-in-law and a young man who was a complete stranger to him. He inflicted very serious wounds on the two women, and I will come to the fuller facts in a moment.

He was originally charged with attempted murder of the two women and in the alternative grievous bodily harm in respect of those victims, as well as bodily harm relating to the young man.

The Crown accepted that the prisoner did not intend to kill the two women and therefore it offered no evidence on the charges of attempted murder. The trial proceeded in respect of the two charges of grievous bodily harm and one of bodily harm, and I found the prisoner guilty of those charges.

The essence of the defence was one of insanity but I found that that defence had not been proved on the balance of probabilities. In essence the defence was the prisoner was legally insane because, although he knew the nature of what he was doing, he did not know that it was wrong. It was said that this was because his ability to understand or comprehend things was overwhelmed by his emotions as a result of a mental illness described by Dr Puloka as Intermittent Explosive Disorder.

The prisoner at the time was serving a sentence of six years imprisonment on a conviction for robbery. He seemed to be able to leave the prison reasonably regularly and I have already expressed surprise at the lack of security at the prison. Sometimes he seems to have left with the permission of prison staff and at other times he simply walked out.

On this day he went to see his wife and mother-in-law, being upset about rumours he had heard of his wife having an affair with another man, which she had persistently denied. He confronted her in the early hours of the morning in the presence of the mother-in-law and an argument ensued which I have described in my verdict already. In the course of that it appears to have been admitted that in essence he had been deceived by both women.

Shortly after that when he saw the mother-in-law leaving the house he told her to come back, and when she failed to return he chased her, picking up the machete that he had brought from the prison and attacking her about the head area. He stopped only when a neighbour to whose house the mother-in-law had run shouted out at him. He went back to the house and then struck the young man when he failed to open the door to let him in, and once he kicked his way in through the door and into the house he attacked his wife mercilessly with the machete about the head and shoulders and at the back of her neck, inflicting numerous and serious wounds. How she survived that, I do not know. She was taken by others immediately to the hospital, as was the mother-in-law, and fortunately the medical assistance given was sufficient to save their lives. They still show the scars of that attack.

The medical evidence did establish that the prisoner suffered from this mental illness referred to as Intermittent Explosive disorder. Dr Puloka traced its origin back to traumatic injury suffered by the prisoner as a young child, when boiling water fell on his head. It has resulted in his having explosive times when he gets frustrated by other people and he responds in a way that is quite out of proportion to what is involved.

Dr Puloka's advice was that this mental illness can be controlled although not cured with the drug Prozac, which he had prescribed to the prisoner only a matter of two weeks or so before this incident. It appears that the prison officers responsible for obtaining the medication failed to do so and as a result it appears that he was not on the medication at the time. If that medication had been obtained and supplied these events may not have occurred.

My finding against the submission of insanity amounted to saying it was not proved on the balance of probabilities that he did not know that this was wrong. However I accept that as a result of the mental illness he had a reduced level of self-control. That is not a legal defence but it is certainly a mitigating factor and I will give considerable credit for that in imposing sentence.

The maximum term of imprisonment for this offence is one of 10 years - that is, for grievous bodily harm. Mr. Niu for the defence points out his client's mitigating factors in terms of the loss of control; the absence of medication after it had been prescribed; the fact that he has not repeated such acts of violence since he has been on medication over a period of 2½ years; the fact that his wife wishes to resume their marriage when he leaves prison and that she visits him regularly still.

Mr Niu makes the submission that the prisoner could be dealt with by way of a suspended sentence of imprisonment with terms which included taking part in an anger management course, and non association with the mother-in-law, who seems to fear for her life if he is released from prison.

Mr. Niu also pointed out that the prisoner still is relatively young man, being 25 years of age, so his rehabilitation is important, and he submitted that he might not be able to cope with the continued term of incarceration.

The Probation Report helpfully provided in this case ranks the prisoner as a high-risk prisoner, but that is based on the number of previous convictions and the seriousness of the offence and other such matters. 

The Probation Officer records that the mother-in-law Kalatiola feels that she would have to leave Tonga for her own safety if the prisoner was released. The Probation Officer says that despite wanting to join his family and his wife's desire to reunite with the prisoner, the Officer believes that "if something happens again, if the accused is released then I am of the opinion that something very outrageous will happen". In other words the Probation Officer is concerned on questions of safety of other persons, and given the background to this matter that is understandable.

If somebody attacks somebody else with a machete and slashes them about the head and the neck they are very lucky that they are not on a murder charge or at least on attempted murder charge. In my view the starting point for sentencing in this case has got to be towards the upper end of the maximum sentence for grievous bodily harm, because it is about as serious as one can get without being on an attempted murder or murder charge. There were multiple wounds inflicted with a dangerous instrument on two people, not one.

The prisoner has a previous conviction on a serious matter; therefore he cannot be treated as being somebody with a blameless record acting for the first time in breach of the law.

I would have thought that without mitigating factors a sentence in the order of 7½ or 8 years imprisonment would be required.

I take into account the medical condition of the prisoner as a mitigating factor and I accept that he had a substantially reduced level of self-control, even though he was not insane. In my view that justifies a considerable reduction and taken together with the other matters put forward by Counsel my conclusion is that a term of imprisonment of 4½ years is appropriate even having regard to the medical condition.

I believe that part of that can be suspended on conditions, but I also believe that for reasons of public safety the prisoner needs to be kept in prison until there is a sustained period of a lack of any violence on his part. It is too early in my view to be able to say that the public could be safe if he was released now simply on conditions. 

Therefore the seriousness of the offending and the questions of public safety lead me to say that he will serve a term of three years and this will be cumulative on the existing sentence of six years. The balance of 18 months will be suspended for a period of three years on conditions: 

1. He will be under the supervision of a Probation Officer.

2. He will live and work where directed by his Probation Officer.

3. He is not to associate in any way with the victim Kalatiola.

4. He is to attend an anger management course as arranged by his Probation Officer.

5. He is to follow all directions of Dr Puloka or such other Medical Officer as Dr Puloka directs.

The effect of that sentence which I am imposing in respect of the two charges of grievous bodily harm is that if the prisoner re-offends during that three year period, which starts after he has served three years, then he will go back to prison and serve the remaining 18 months of the sentence. He will also serve the remaining months of this sentence if he breaches any of the five conditions that I have set out.

On the charge of bodily harm, where the damage was much less severe, the sentence is one of two years imprisonment, which is concurrent with the 4½ years sentence.