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

CR 107 of 2021

REX
-v-
Mikaele Hoponoa PAHULU

Sentencing remarks

BEFORE:	THE HONOURABLE COOPER J
Counsel:	Ms. H. Aleamotu’a for the Prosecution 
	Mrs. F. Vaihu for the Defendant.
Date of sentence:	7 January 2022

1.	On 18th October 2019 Mr. Mikaele Pahulu was at his place of work, the Vaiola hospital, where he was a security guard on the psychiatric ward.
2.	Nurses Sosefina Tafa and Taniela Talanoa were on duty during that afternoon started their rounds at approximately 1730 hrs. As Nurse Tafa looked at the monitor for the ward CCTV she saw a fight on the screen. A person was kicking another man and throwing him to the ground.
3.	She recognised the defendant was the attacker.
4.	Nurse Talanoa looked at the monitor when she heard her colleague’s cries and she saw Mr. Pahulu throwing the victim to the ground.
5.	Calling for help from security and staff they ran to where this was taking place.
6.	When they got there they found Mr. Pahulu sitting in a chair, the victim lying prone on the ground, face up.
7.	The victim was a man called Nafetalai Latu a 71 year old patient in the psychiatric ward.
8.	They rushed him to the Emergency Ward and he was examined at approximately 2100 hrs that day and found to have a severe head injury as well as some associated minor injuries.
9.	Mr. Latu was no doubt treated, though I do not have before me what medical intervention there was. But, the medical report of 25th October 2019 noted that by then he had regained consciousness and could open his eyes. He could no longer understand what was being said to him and had lost the power of speech. He could not feed himself and was provided nutrition through via a nasogastric tube.
10.	As for Mr. Pahulu, he was arrested on 7th November 2019 and confessed to the police what he had done.
11.	As time passed Mr. Latu was assessed again by doctors. A progress report dated 15th May 2020 noted that he could not move and still relied on nasogastric tube for feeding himself.
12.	In due course Mr. Pahulu was charged with a single count of causing grievous bodily harm. On 23rd July 2020 he was arraigned on that indictment and pleaded guilty.
13.	28th August 2020 he was sentenced to 3 years’ imprisonment the final 18 months suspended.
14.	On 10th October 2020 Mr. Latu died. A doctor reported that the material cause of death arose from the injuries he sustained as a result of Mr. Pahulu’s attack on him.
15.	The prosecution then charged Mr. Pahulu in relation to the death of Mr. Latu.
16.	He was charged with manslaughter. 
17.	From reading the written submissions that arose in relation to the issue of whether autrefois convict should bar these proceedings and the Crown’s response to defence submissions, it appears the decision to charge manslaughter was based on the year and a day rule; it being said that the death coming more than a year and a day after the causing of the injury meant the Crown were precluded from charging murder.
The attack
18.	There is video footage of the attack. It is a single clip and is seemingly a film of the footage being played on a monitor then filmed on a mobile phone. This clip lasts for 32 seconds.
19.	It is not clear to me whether this was available to the Judge when he originally sentenced Mr. Pahulu as it is not referred to in his sentencing remarks.
20.	I have watched it over a dozen times, slowing it down to follow exactly what happened.
21.	What it shows is that there were three people present. The victim, Mr. Latu and another figure that must be Mr. Pahulu’s, though the upper part of his body is never in shot. 
22.	There was also a third person; perhaps male. Again this person’s face is never in frame. That person was wearing what looks like black jeans and trainers.
23.	It is the third person’s legs that are first seen in the clip as that figure walks left to right across the screen. That is followed by the attack of Mr. Latu by Mr. Pahulu as that third figure stands close by. 
24.	What is apparent is that not only is there no sign the third person tried to stop the attack, but that person strode off as soon as the attack was over and did not stay to offer assistance.
25.	This attack comes from off camera to the right, where that third figure had walked to.
26.	As for the attack itself; what is captured on the footage is first Mr. Latu being knocked bodily to the ground. After he landed and raised an arm to apparently protect himself and it was grabbed by Mr. Pahulu, it is quite clear that Mr. Pahulu started his attack with throwing his victim to the ground.
27.	The difference in their sizes is also clear.
28.	We know their ages are quite different. Mr. Pahulu was 40 years old at the time. Mr. Latu was 71; of course he was an in patient too.
29.	Mr. Pahulu with a large frame and stout, wearing what appear to be heavy souled shoes. Mr. Latu thin, elderly and bare footed.
30.	From that first knock to the ground, Mr. Pahulu held the left outstretched arm of Mr. Latu and used it to brace himself to lift and twist Mr. Latu around, giving Mr. Pahulu the space to apparently kick Mr. Latu so he span on the ground in a counter-clockwise direction and then he aimed a kick into Mr. Latu’s head while he was still on the ground.
31.	It was a sharp kick straight into the area of Mr. Latu’s right temple.
32.	As I have noted, Mr. Pahulu was wearing what looks like heavy shod shoes.
33.	That kick lifted Mr. Latu’s top half of his body up off the ground from the waist and his body then dropped to the floor.
34.	After that kick Mr. Latu appears to no longer be responsive. That did not deter Mr. Pahulu from continuing his attack.
35.	Mr. Pahulu then stepped along side Mr. Latu and with his right foot, drew it up and then backwards into the face of Mr. Latu.
36.	That kick made the whole of Mr. Latu’s prostate body convulse.
37.	Then two further back-kicks, with then his left foot followed by his right, both less powerful, though each connecting with Mr. latu’s head; they were still forceful enough to throw Mr. Latu’s body around on the ground.
38.	Mr. Pahulu then lifted Mr. Latu bodily to waist height and threw him on the ground.
39.	It is clear that Mr. Latu was unconscious at that time, as when he was lifted up his left leg hung limp.
40.	He was thrown with enough force that his body can be seen to bounce up from the ground on impact. Only the bottom half of his figure can be seen, so the effect on his head from being slammed on the ground can not be seen.
41.	From the moment that he is thrown to the ground the first time to the last, the figure with black jeans and trainers stood close by to the prone figure of Mr. Latu moving in and out of frame.
42.	That means Mr. Latu was flung to the ground, kicked to the head five times and then flung to the ground a final time before the figure with jeans turned and left followed by Mr. Pahulu who stepped over the inert body of Mr. Latu and left him.
Defence submissions
43.	The defence have drawn my attention to the medical condition of his wife and that she has now had to have her leg amputated.
44.	That Mr. Pahulu deeply regrets what he did.
45.	The submission is made that any sentence already served must count, indeed that he has served a long enough sentence for what he did.
46.	No reference is made to any particular case or authority to support that submission.
Victim Impact Statement
47.	The information I have is that before the death the defendant approached Mr. Latu’s family. He apologised. His wife and children went to the hospital following his remand. They brought food. They have visited very Sunday.
48.	Mr. Latu being in hospital cost his family $30.00 a day for the private room he needed.
Pre-sentence report
49.	The defendant in his pre-sentence report set out a set of circumstances that he relied on as his explanation why the assault took place.
50.	It was that Mr. Latu had struck out at him through the door to his room with a piece of metal, then later when Mr. Pahulu during his patrol entered his head into the room where Mr. Latu was, by poking it through an open space in the door he was punched by Mr. Latu. A short time later he went into the room where Mr. Latu was and sat on a chair to make notes and Mr. Latu repeatedly punched his head. It was this that caused Mr. Pahulu to be provoked to act in the way he did.

Provocation 
51.	A finding of provocation so as to mitigate a sentence requires careful analysis.
52.	I turn to the defendant’s account.
53.	He stated that there were three separate attacks on him by the defendant; all in in close succession. None were said to have caused him injury. 
54.	I ask myself how could the first alleged assault through the door into the corridor where Mr. Pahulu was have been serious enough to pose a risk or harm to Mr. Pahulu where no injuries were said to have arisen ?
55.	If it did, it is to be wondered why he would have gone into the room where the defendant was to leave himself exposed to a further assault ? Further, to have sat down and paid no heed to Mr. Latu and started making notes so as leave himself exposed to an assault yet again makes no sense.
56.	If he was making notes, this presumably was to record what had just happened were it so significant. If it was to record something else, then that initial assaults (as alleged) could not have been particularly significant. If it was to record that first assaults, where are those notes and why have they not been referred to ?
57.	That in itself makes me question the veracity of what was alleged by Mr. Pahulu in his pre sentence report.
58.	Two matters that follow: 
59.	The first is that if Mr. Pahulu is to be believed this further assault made him loose his temper and control and act in the way that he did.
60.	Why did he not “simply walk away” ?
61.	The second is the application of provocation in this case.
62.	To have reacted angrily would be one thing, but to hurl him to the ground and kick him in the head 5 times before hurling him to the ground again is something completely else.
63.	The United Kingdom’s Sentencing Council Guidelines for manslaughter by reason of provocation considered this issue in detail.
64.	At section 3, “Factors influencing Sentence” it went on to consider what they found to be the “critical factor”; it was “The degree of provocation by its nature and duration”.
65.	They concluded in assessing the degree of provocation these factors needed to be considered :
“…if the provocation (which does not have to be a wrongful act) involves gross and extreme conduct on the part of the victim, it is a more significant mitigating factor than conduct which, although significant, is not as extreme 

the fact that the victim presented a threat not only to the offender, but also to children in his or her care 
the offender’s previous experiences of abuse and/or domestic violence either by the victim or by other people 
any mental condition which may affect the offender’s perception of what amounts to provocation 
the nature of the conduct, the period of time over which it took place and its cumulative effect 
discovery or knowledge of the fact of infidelity on the part of a partner does not necessarily amount to high provocation. The gravity of such provocation depends entirely on all attendant circumstances. 

Whether the provocation was suffered over a long or short period is important to the assessment of gravity. The following factors should be considered: 

the impact of provocative behaviour on an offender can build up over a period of time 

consideration should not be limited to acts of provocation that occurred immediately before the victim was killed. For example, in domestic violence cases, cumulative provocation may eventually become intolerable, the latest incident seeming all the worse because of what went before. 

When looking at the nature of the provocation the court should consider both the type of provocation and whether, in the particular case, the actions of the victim would have had a particularly marked effect on the offender: 

actual (or anticipated) violence from the victim will generally be regarded as involving a higher degree of provocation than provocation arising from abuse, infidelity or offensive words unless that amounts to psychological bullying 

in cases involving actual or anticipated violence, the culpability of the offender will therefore generally be less than in cases involving verbal provocation 

where the offender’s actions were motivated by fear or desperation, rather than by anger, frustration, resentment or a desire for revenge, the offender’s culpability will generally be lower.”

66.	A single factor that shines a light on the essence of provocation comes at the conclusion of that guidance at point 5. “Factors to take into consideration” : 
“The intensity, extent and nature of the loss of control must be assessed in the context of the provocation that preceded it.”

67.	This chimes with the New Zealand courts’ approach in Wairau v R [2015] NZCA 215 adopting Hamidzadeh v R [2012] NZCA 550 to consider provocation in offences less than murder :
(a)	“It is no longer essential to establish that the provocative conduct of the victim would have deprived an ordinary person, with the attributes of the defendant, of the power of self-control.
(b)	Loss of control is still a factor relevant to culpability. Offending resulting from a "sudden and justified loss of self-control" may, depending on the circumstances, be viewed as less culpable than one involving a "calculated and controlled response".
(c)	A flexible approach is required; the evaluation in provocation sentencing is fact dependent. Relevant factors may include (non-exhaustively):
‘[T]he nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender's response; and whether the provocative conduct was such as to reduce the offender's culpability in all the circumstances.’
Other factors identified by the Court of Appeal in Hamidzadeh as potentially arising include whether the offending occurred through fear rather than anger, whether there is any issue of intellectual impairment involved, and whether the offender has previously been the subject of physical or sexual abuse bearing on overall culpability.”
68.	Firstly, I am very doubtful about the defendant’s account for the reasons I set out:  regarding any attack into the corridor by the victim, why the defendant then  entering the victim’s room, the note taking so as to leave him vulnerable to an attack and lack of existence of any notes dealing with this event, as alleged.
69.	There is also something the troubles me about the third person present during the attack. Had there been some immediate and sudden violent loss of control I would not expect that third person to have been casually present, rather having a demeanour of one troubled, panicked and or in some way seeming the need to interceded. None of that was apparent.
70.	But I do not take this into account as those signs are too tenuous when that third person’s person’s body can only be seen from waist down or sometimes less.
71.	But, combining those points as to credibility, or lack thereof,  and his explanation concerning the lead up to the assault, and the guidance on provocation; I am particularly guided by the detailed consideration in Wairau v R; “whether the provocation was (or remained) an operative cause of the offender's response”.
72.	Drawing all these factors together; there is a doubtful explanation as to the reasons for his provocation, combined with an assault protracted enough to involve 5 kicks to the head and twice flinging the victim to the ground. That the kicks to the head where first front and then significantly back kicks and the flinging of Mr. Latu to the ground at the end coming when he was unresponsive before walking away, stepping over his apparently inert body reveals ; the provocation , if there really was any, was of a trifling nature compared to the reaction and was not proportionate to its duration and gravity; further if there really was such provocation (which I have good reason to doubt) the clear signs are that it did not remain operative cause for the response.
73.	Those final back kicks and the last flinging of his body to the ground are so demonstrably casual acts they were simply sadistic, brutal violence. 
74.	Along side this I consider Mr. Pahulu’s lack injuries.
75.	I also bear in mind the balance of power in their relationship, the defendant a guard and a lot younger, bigger and stronger. Also, the critical issue of Mr. Latu’s vulnerability as someone just brought to a psychiatric ward within the preceding 24 hours and the confusion and difficulties that would present anyone, right down to his being there, bare footed.
76.	I have read mention in the pre-sentence report, and there is nothing to gainsay it, that Mr. Pahulu had worked a long shift and was covering for lack of colleagues to relieve him and also his lack of training.
77.	Even considering both those points and that they would have some significance I am still sure, after analysing the video footage and applying the guidance of the UK courts and especially the New Zealand approach, that there can not be said to be provocation in this case so as to justify the excuse he has put forward to mitigate his sentence.
78.	I do not accept his explanation, even had I, the provocation was so trifling compared to the response. Had it somehow justified a violent response that response then became too extensive; then too casually conducted and deliberate and cruel to be relied.
79.	It follows that the lack of training is not a significant factor in his mitigation because no one needs to be trained not to react like that, it is just barbaric.
80.	I do accept that over work and extensive fatigue may have some, limited, relevance here.
Starting point for sentence for manslaughter
81.	The New Zealand position as set out in Hall’s makes this observation
“There is no guideline judgment (or tariff case) for manslaughter sentencing. The circumstances of manslaughter vary widely and there is a corresponding range of culpability even when there is or may be an element of provocation. The nature and seriousness of different kinds of unlawful acts which cause death can vary infinitely; they may range in gravity from acts close to inadvertence or quite minimal physical contact, eg, a push, to wounding with weapons or a prolonged attack over an extended period in circumstances that fall little short of murder.”

82.	There is an overlap in my consideration of provocation and reasons for rejecting it as mitigation and the issues that arise generally to consider at sentence.
83.	Mr. Latu was 71 years old and had only been admitted to the care of the Vaiola hospital’s psychiatric ward within the proceeding 24 hours. That must have been a disorientating situation to be in that unfamiliar environment and for someone with mental health needs.
84.	Hall’s lists considerations that courts in the New Zealand must have regard to concerning the circumstances of the victim.
85.	In the instant case, that would include, (i) the vulnerability of the victim by virtue of his age, (ii) the ill treatment of a vulnerable adult (I take vulnerable here to connote his mental health difficulties and take issue with it being described in that work as a person suffering mental “retardation”), (iii) vulnerable because of his status, that is to say an in-patient in a psychiatric facility. This latter point different to the second as it relates to the hierarchy of the facility he was in and not the cause for his being detained there.
86.	I have already noted the difference clothing, height, and corresponding strength.
Sentencing comparables
87.	Kofutu’a [2010] Tonga LR 120 – the appellant assaulted the victim repeatedly punching her to head and chest believing that she had lied to him. She was struck to the ground. She went to hospital but died there. A sentence of 15 year’s imprisonment was reduced to 13 by the Court of Appeal.
88.	R v Nai & ors CR 222-226 2019. The defendant was convicted after trial of repeatedly stamping , kicking and punching the victim to the head when on the ground. It was a group attack and the defendant, Mr. Nai, said to be the leader in this was given a sentence of 12 ½ year’s imprisonment where the starting point was 14 ½ years but that was adjusted down to reflect the defendant’s previous good character, remorse and the apology made to the family.
89.	I also have considered R v Tapueluelu Cr 10/2021. Lord Chief Justice Whitten QC imposed a 14 year starting point for an attack he described as “gutless” striking the victim to the back of the head, before using a wok and stove to beat him to death. That was reduced by 2 years to reflect his guilty plea. The Learned Judge noted there were no mitigating features to reduce that sentence further.
Sentence
90.	This was manslaughter just short of murder, possibly only because that was not charged.
91.	Why murder was not charged has never been explained. 
92.	The year and a day rule, said to have precluded that charge was abolished in the United Kingdom in 1996. It would seemingly now have no application in Tonga.
93.	Therefore I struggle to understand why it was not charged in this case.
94.	Despite repeated requests of the prosecution, there has been no explanation forthcoming.
95.	To return to the sentence, I consider that this case merits a starting point of 14 years. That takes into account the vulnerability of the victim, his age, being a patient in hospital and his mental health difficulties, the serious breach of trust; Mr. Pahulu was a member of the staff who over saw the care of Mr. Latu. 
96.	It takes into account the repeated assault, his aiming at the head of the victim and using shod feet to kick into his head and face and the flinging of his body to the ground.
97.	I have also taken into account how he left his victim on the floor terribly injured.
98.	This was indeed a gutless attack.
99.	I reject, absolutely, that there was an element of provocation and see that as an excuse to attempt to evade responsibility.
100.	I have taken account of the medical condition of his wife and all possible mitigation as set out in the pre sentence report, the references that are included and the defence submissions. I have taken into account fatigue and over work, as I mentioned above.
101.	For his guilty plea I do reduce his sentence, but by no more than 10 % as he was caught red handed. I make that discount 17 months.
102.	That makes 12 years and 7 months.
103.	Because of his previous good character and some expression of remorse, albeit alongside an untruthful account of the circumstances of the attack, I reduce his sentence by a further 12 months.
104.	11 years and 7 months.

Suspension
105.	In considering the Mo’unga principles I remind myself that he was of hitherto good character and that there is hope that he can rehabilitate.
106.	Therefore I will suspend the final 12 months for 2 years on conditions:
i.	He commits no offence punishable by imprisonment
ii.	He reports to probation on his release
iii.	He completes an anger management course
107.	The time he has served in relation to time on remand and the sentence imposed for the grievous bodily harm in 2020 for this attack will count towards that sentence so he must serve the balance.
108.	That is a total sentence 11 years and 7 months, the last 12 months suspended on conditions, the time served hitherto to count.

	NUKU’ALOFA	 					        N. J. Cooper	    	   
	7 January 2022 						        J U D G E