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

CR 15 of 2022

REX
-v-
MA’AKE PASINA
(a.k.a Lemeki Pasina) 

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN QC
Appearances:	Mr T. ‘Aho for the Prosecution
	Mr V. Mo’ale for the Defendant
Date:	13 May 2022 

The charge
1.	On 5 April 2022, the Defendant pleaded guilty to one count of causing serious bodily harm, contrary to s 107(1), (2)(c) and (4) of the Criminal Offences Act. 
The offending
2.	On 14 October 2021, the Complainant, Mateni Finau, was at a barber shop where he worked in Ngele’ia. When Mateni finished attending to a customer, he went outside. The Defendant arrived shortly after with three other people in a van. The Defendant got out of the van and told Mateni to get in the van and tried to pull him in. Mateni refused and the Defendant punched him. A fight broke out during which the Defendant pulled a knife from his trouser pocket and stabbed Mateni twice. Mateni continued to resist. The Defendant eventually gave up and got back in the van and left. Mateni was taken to hospital. He suffered a 4 cm wide by 1 cm deep laceration on his left shoulder and a 3 cm wide laceration on his left forearm, both of which required suturing. 
3.	When he was arrested, the Defendant did not cooperate and chose to remain silent when questioned. 

Crown’s submissions
4.	The Crown submits the following as aggravating features of the offending:
(a)	the attack was unprovoked;
(b)	the Defendant used a knife;
(c)	to stab the Complainant twice;
(d)	causing serious injuries;
(e)	which have impacted the Complainant both physically and financially.
5.	The Defendant has previous convictions including:
(a)	2003 - wilful damage - 2 months imprisonment suspended for 1 year and compensation;
(b)	2004 - housebreaking and theft - 2 years imprisonment suspended for 1 year;
(c)	2013 – theft – fined;
(d)	2016 - abetment to robbery – 2 ½ years imprisonment, final 12 months suspended;
(e)	2020 - possession of illicit drugs (Supreme Court CR 274/20) - 6 months imprisonment, fully suspended for 2 years;
(f)	2021 - theft - probation for 4 months;  
(g)	2021 – domestic violence – fined and placed on probation from 26 October 2021 to 24 January 2022. 
6.	The Crown submitted the following as mitigating features:
(a)	the Defendant pleaded guilty at the first opportunity; and
(b)	he apologized to the victim and the victim has forgiven him.  
7.	The Crown referred to the following comparable sentences:
(a)	Kalapu Felemi (unreported, Supreme Court, CR 86/21) – the Defendant repeatedly hit his younger brother with a knife causing injuries to his head, arms and thigh. Niu J imposed a starting point of 2½ years, reduced by 12 months for his guilty plea, cooperation with the authorities, and the forgiveness from his brother, resulting in a sentence of 1½ years, fully suspended on conditions. 
(b)	‘Inivenesi Helu (unreported, Supreme Court, CR 325/20) – the Defendant pleaded guilty to attacking the victim with a machete and inflicting a 7cm deep laceration which required internal and external sutures. A starting point of 3 years’ imprisonment was set, reduced by 1 year for the Defendant’s cooperation with police, early guilty plea, good previous record, and remorse. The final 12 months of the resulting 2-year sentence was suspended on conditions. 
8.	Here, the Crown proposes the following sentence formulation:
(a)	a starting point of 3½ to 4 years’ imprisonment;
(b)	discounted by 12 months for the Defendant’s guilty plea and accepted apology; 
(c)	no suspension due the Defendant’s recent conviction for violence; and 
(d)	given this is the third time the Defendant has breached the conditions of his suspended sentences in CR 274/20, that sentence should be activated so that he is required to serve that 6-month term in addition to the sentence to be imposed in this case. 
Victim impact statement 
9.	The Complainant is 27 years of age and resides in Ha’ateiho. He is married with a two-year-old son. He and his wife and child live with two other families in the same household. Prior to the offending, he was employed as a barber. However, his employer let him go due to concerns about what happened between the Complainant and the Defendant. 
10.	The Complainant had known the Defendant for two to three years prior to the offending, but not that well. The Defendant had requested, and the Complainant had agreed, to lend the Defendant $100, for which, the Defendant gave the Complainant his mobile phone as security. The following day, the Defendant asked the Complainant for his phone back even though the Defendant did not have the money to repay the loan. The Complainant refused and the Defendant left. 
11.	The Complainant believes that on the day of the offending, the Defendant attacked him because he was still angry with him for not returning his phone. 
12.	The Complainant is still affected physically by the attack. He suffers pain in his left arm when lifting heavy things, is unable to sleep on his left side and experiences numbness and weakness in the arm. During his recovery, he was not able to work and, and a result, he and his family have been reliant on remittances from family overseas. 
13.	The Defendant and his wife apologised to the Complainant and offered him $300, which his wife accepted. 
Presentence report 
14.	The Defendant grew up in an unstable environment. His parents separated. His father migrated to the USA and remained there until his death. His mother remarried. He was mostly raised by his grandparents. He was educated to form six. After high school, he migrated to New Zealand where he and his de-facto partner there had three children. The Defendant returned to Tonga in 2013.
15.	The Defendant is now 36 years of age. He is known by different names, including Lemeki Pasina or Ma’ake Tonga, and to his friends, he is known as ‘Meki.’ 
16.	The Defendant told the probation officer that when he returned to Tonga, he married in 2014, that he and his wife have had three children ranging from six years of age to one, and that he assists his wife in operating a private car dealership business.  
17.	After further investigation, the probation officer detected that the information given by the Defendant was untrue. He is not actually married but living in a de-facto relationship with his girlfriend, who is in fact legally married to another man, and the Defendant and his girlfriend only have one child together. Further, the Defendant is not employed at any car dealership business, which was thought to be owned by his girlfriend. A relative of the Defendant’s girlfriend informed the probation officer that there is no dealership business and that it was all a scam to mislead and steal customers’ money. The Defendant was otherwise unable to confirm his source of income. The Defendant’s most recent conviction, for domestic violence, was against his girlfriend, who apparently left last week for Fiji. 
18.	In relation to the offending, the Defendant told the probation officer that the Complainant stole his phone and pawned it, and that when he went to talk to the Complainant about it on the day in question, the Complainant punched the Defendant first. 
19.	Since the offending, the Defendant has visited the Complainant, apologized and given him money to help with his recovery. He told the probation officer that the Complainant regularly asked the Defendant for money and that the Defendant gave it. 
20.	The probation officer reported that the Defendant feels remorseful.  She also opined that the Defendant’s history of violence suggests he ‘may have anger issues’ and needs ‘extensive intervention’ to control his ‘negative behaviour.’  For those reasons, the probation officer recommended a partial suspension on conditions. 
Defence submissions
21.	In his submissions, Mr Mo’ale:
(a)	referred to the principles in Hu’ahulu v Police [1994] Tonga LR 93 and R v Helu (unreported, CR 325 of 2020, [29]), referred to further below;
(b)	identified the mitigating factors of the Defendant’s guilty plea, remorse and the Complainant’s forgiveness; 
(c)	stated that after he received the presentence report, which contained information about which he did not know, he “paused”; 
(d)	attached a letter said to be from the Complainant in which he confirmed his acceptance of the Defendant’s apology and his forgiveness, that they are now friends, that the Defendant often visits him and that he thinks the Defendant is ‘really sorry’; and
(e)	concluded by citing a passage from R v Vola Tau’alupe (AC 8 of 2017) where the Court of Appeal described sentencing as fundamentally a discretionary process which is highly fact-dependent, requires the application of established principles to the facts and circumstances of the particular case, and often requires a delicate balancing exercise. 
Starting point
22.	The maximum statutory penalty for causing serious bodily harm is 5 years’ imprisonment. 
23.	Regrettably, this Court has too often had to repeat the salutary comments of Ward CJ in Hu’ahulu v Police, ibid, that:
“... anyone who commits an offence of violence against another person runs a serious risk of immediate imprisonment…. The likelihood of going to prison becomes a virtual certainty if … a weapon of any type is used.” 
24.	In my view, for the purposes of sentencing, the use of knives in violent offending falls within the same category of ‘inherently dangerous weapon’ as that of machetes: Tupou v Rex [2019] TOCA 8.  
25.	As Gibson J said in R v Gilmore (1980) 2 Cr.App.R.(S.) 201:
“… the learned judge was right to call it a terrible offence … He took with him a sharp knife … He attacked the victim without any provocation whatever and inflicted the grave wounds to which reference has been made … It must be plainly understood … that whatever may be the situation … the use of knives … will not be tolerated …” 
26.	I do not accept the Defendant’s account to the probation officer that the Complainant punched him first. There is a simple reason for that. The Defendant clearly lied to the probation officer about a number of matters. Even Mr Mo’ale appeared to be taken by surprise by the contents of the presentence report to the point that he was either unable or unwilling to make any substantive submissions in his client’s favour other than pointing to the obvious mitigating factors which the Crown submissions had already identified.      
27.	Having regard to the seriousness of the offending by reference to the:
(a)	statutory maximum penalty;
(b)	comparable sentences and principles referred to above;
(c)	unprovoked nature of the attack;
(d)	repeated use of a lethal weapon; and
(e)	injuries inflicted on the Complainant,
I consider the sentencing objectives of punishment, denunciation, deterrence and protection of the community can only be served by setting a starting point of 3½ years’ imprisonment. 
Mitigation
28.	For the Defendant’s early guilty plea and demonstrated remorse, as reflected in the Complainant’s forgiveness, I reduce that starting point by 12 months resulting in a sentence of 2 ½ years imprisonment. 
Suspension
29.	Application of the considerations in Mo’unga [1998] Tonga LR 154 at 157 to the instant case do not weigh in favour of suspension. The Defendant is not young. Although he eventually pleaded guilty upon arraignment, he did not cooperate with the authorities and chose to remain silent when questioned. The offending was serious and has had a profound impact on the Complainant. The Defendant has a poor criminal record. Moreover, he has had a number of convictions in which wholly or partly suspended sentences have been imposed.  Those previous convictions include offences involving violence and have expanded, more recently, to illicit drugs. He has not taken the opportunity afforded by previous suspended sentences to effect lasting rehabilitation. He is clearly becoming a menace to society. His most recent dishonesty with the probation officer fortifies that view. In those circumstances, specific deterrence and protection of the community outweigh any waning hopes for the Defendant’s rehabilitation.
30.	For those reasons, I do not consider it appropriate to suspend any part of the sentence. 
CR 274/20
31.	Further, section 24(3)(c) of the Criminal Offences Act provides that:
In the event of the offender being convicted of an offence punishable by imprisonment committed during the period of suspension he will thereupon be sentenced to serve the term of the suspended sentence. 
32.	The instant offending was committed during the two-year suspension period imposed in CR 274/20. Accordingly, I agree with the Crown that the suspension of that sentence of six months imprisonment should be rescinded and added to the sentence to be imposed for this matter. 
Result
33.	The Defendant is convicted of causing serious bodily harm and is sentenced to 2½ years’ imprisonment. 
34.	Further, the suspension of the sentence of six months imprisonment in proceeding CR 274 of 2020 is rescinded and that sentence is to be added to the sentence imposed in this proceeding, making a total period of incarceration of three years.   
			
NUKU’ALOFA		M. H. Whitten QC	
13 May 2022		LORD CHIEF JUSTICE