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

CR 171/2023

REX
-v-

Hemaloto MANUKAILEA

Sentencing remarks

BEFORE:	THE HONOURABLE COOPER J
Counsel:	Miss Kafa for the Prosecution 
	Mr. Fili for Mr. Maukailea
Date of:	19 APRIL 2024

ORDER OF 	COOPER J

DATE OF ORDER	19 APRIL 2024

THE COURT ORDERS THAT

Mr. Manukailea is to serve a sentence of 19 months’ imprisonment, the last 6 suspended for 1 year on conditions.

REASONS

1.	On 8 January 2024 Mr. Maukailea was arraigned on the single count of causing serious bodily harm. He pleaded not guilty. The matter was fixed for a reserve trial 5 February 2024, when it could not go ahead because the fixed trial of that week was effective.
2.	His trial was then adjourned to the fixed date of 18 March 2024. In the week of 11 March 2024 his advocate, Mr. Fili, contacted the court to indicate there would be a change of plea. He was re-arraigned on 15 March 2024 and entered a guilty plea.
Background
3.	On the night of Thursday, 20 April 2023, the victim, Paula Lolohea went out drinking in the Nuku’alofa. 

4.	At around 1:30am, on Friday morning, the Mr. Lolohea arrived at the Ciora Bar and asked the security guard, Tiasi Taufa if he could enter. However, Mr. Taufa refused stating the bar was closing. 

5.	At the same time the Mr. Manukailea was leaving the Ciora Bar, finishing off a beer that he bought inside the bar. 

6.	Tiasi Taufa started talking to the Accused as he finished his beer. Meanwhile the complainant started swearing at Tiasi Taufa saying “cunt, let me go upstairs”.

7.	When the Accused finished his beer, he walked out to where the Mr. Lolohea was standing and still swearing, and punched him on the left side of his chin, causing him to fall to the ground. 

8.	The victim felt his jaw break when he was punched. 

9.	The Lolohea was taken home, and the Accused also went his way. 

10.	The following day, he went to the Vaiola Hospital. He underwent surgery to realign his jaw. He was admitted for approximately one week and discharged on Thursday 27 April 2023. 

11.	According to Dr. Canieli Po’ese, Mr. Lolohea suffered a fracture to the left and right body of his mandible bone, which was consistent with blunt force to the face. 

12.	On 28 May 2023, Police arrested Mr. Maukailea 

13.	The following day Police interviewed him. He admitted to the offence. He claimed however that he did not intend to punch the complainant because he was too drunk. 
Crown’s sentencing submissions
MITIGATING & AGGRAVATING FEATURES
The Crown submits that the aggravating and mitigating features in this case are:

AGGRAVATING FEATURES
(1)	The Accused has relevant convictions that relates to acting as a public nuisance;
(2)	The Accused caused severe injury to the victim’s jaw (two fractures), leading to the extraction of two teeth; 
(3)	The Victim still suffers from the injury as explained in the Victim Impact Report at Part V of these submissions. This is so despite the updated medical report saying the Victim’s mandible fractures have healed;
(4)	There was no reasonable provocation by the Victim.  

MITIGATING FEATURES
(1)	The Accused, to a certain degree, did apologise to the Victim and gave him $200 to help buy some liquid food during the time he could not eat solid food; 
(2)	Guilty plea, although late; 
(3)	First time offender for offending of this kind i.e. assault/violence.

14.	Paula Lolohea stated the following in respect of the repercussions this offending has had on him:
a.	He has experienced pain and discomfort as a result of the assault even up until the date of the interview on 5 April 2024). He spent 1 week in hospital after the incident. He explained that his teeth were wired in. The wiring was removed four weeks after they were installed. 
b.	Since the incident he has only been able to eat liquid and easily digestible foods. He specifically mentioned he cannot eat beef. Chewing is difficult for him because his jaws are not exactly aligned, which means his upper and lower teeth do not bite well on solid-like foods. He was only on strict liquid food for the first 3 months, but now he can chew more varieties, but it is not 100% like what he was able to eat before the injury. 
c.	His sleep is affected until now. He cannot lie on his side otherwise he wakes in the night and feels his jaws are locked and in pain. He therefore has to sleep facing upwards.
d.	He mentioned that if he had money to buy new teeth or plate his jaws, then he would take that option. He believes it would help. 
e.	He recalls when the Defendant approached him to apologise. He recalls the first approach was about a month after the incident. The Accused went to his house with a friend of the Victim’s, as well as the Accused’s child. They apologised and gave $200. The Accused told him that he was sorry and that he was just too drunk. He told the Victim that the $200 was to buy him some milk and Weet-Bix.
f.	The second time the Accused approached the Victim was at the Victim’s office. This was after the case had first been called in the Magistrate’s Court. The Accused approached him again together with the Victim’s friend, asking if he would withdraw the complaint against him. The Victim told him that he had no authority to do so. 
g.	The last time the Accused approached him was when the Accused went over with another person Sione Vaomotou, who the Victim is acquainted with, asking again to withdraw the complaint. This was early 2024. The Victim was annoyed and told them to leave and never return. 
h.	The Victim did not accept the apology the Accused initially made because every time the Accused went to see him the Accused was always accompanied by someone. This to the Victim gave the impression that he was not truly sorry. It was as if the Accused himself could not approach him. However, at the time of the interview, the Victim was able to forgive the Accused. 
He wants the Accused to know that what he did to him was not good.

15.	Crown have submitted the following cases are relevant:
(1)	R v Fale’one Sitiveni Hafoka [2021] TOSC 97
a.	The 23-year-old defendant pleaded guilty to punching the victim’s face, causing him to fall down, and punching the victim while he was on the ground. As a result, the victim suffered fractures to his jaw and two teeth. 
b.	A starting point was set of 26 months imprisonment. That was reduced to 20 months for mitigation. The final 10 months were suspended for 2 years on conditions including an anger management course.

(2)	R v Matini Siosiua Kuli Poafa (Unreported, Supreme Court, CR 19 of 2021, 22 April 2021, Niu J)
a.	The 18-year-old defendant pleaded guilty to punching the victim while he was asleep which broke his lower jaw in two places and required surgery. 
b.	Niu J sentenced the Defendant to 2 ½ years’ imprisonment. Due to his young age and good previous record, the sentence was fully suspended for three years in conditions.

(3)	R v Puamau (Unreported, Supreme Court, CR 5 of 2018, 20 February 2018, Cato ACJ)
a.	The 21-year-old defendant, who had no previous convictions, pleaded guilty to punching a female security officer resulting in her losing three teeth. 
b.	The defendant was sentenced to 21 months imprisonment with the final 9 months suspended on conditions.

CROWN’S POSITION ON SENTENCING
16.	The Crown respectfully maintains its position in its Indicative Sentencing Submissions which is:

Starting point (range):	24 – 30 months imprisonment	
Discount for an early guilty plea:	6 months reduction	
Any further discount for mitigation (e.g. cooperation with Police):	4 months reduction	
Resulting sentence (range):	14 - 20 months imprisonment	
Suspension of sentence, in full or in part:	In part	
Conditions of any suspension (including rehabilitation programs, restitution and/or community service):	1.	Not to commit any offence punishable by imprisonment; 
2.	Report to probation within 24 hours of release; 
3.	Placed on probation; 
4.	Reside where directed by probation officer; 
5.	Undertake a course on alcohol and substance abuse as directed by his probation officer (subject to this already been undertaken during his incarceration).	
Final resulting sentence to be served:	20 months imprisonment, the final 8 months suspended on conditions above. 	

Medical report
17.	Dr. Po’ese provided a final medical report, dated 10 April 2024. 
18.	It noted that Mr. Paula Lolohiea suffered a bilateral mandibular fracture and was treated at the Vaiola hospital on 21 April 2023.
19.	The initial treatment was for tooth extraction at the fracture site. His jaw bone was realigned and fixed in place with wire. 
20.	The functional outcome was described as satisfactory with “…improved mouth opening, adequate masticatory function and speech articulation”.
21.	No significant complications were noted.
22.	Overall the treatment was said to be “satisfactory healing and functional outcome.”
Legislative framework

23.	Causing serious bodily harm contrary to section 107(1), (2)(b) and (4) of the Criminal Offences Act. The maximum penalty for this offence is one of 5 years’ imprisonment.
Comparable sentences

24.	R v Hafoka CR 90 of 2021. Lord Chief Justice Whitten KC, 15th June 2020 a starting point of 2 years and 2 months for a punch causing a fracture to the jaw and loss of two teeth, was deemed appropriate.

25.	R v Poafa CR 19 of 2021, Niu imposed a sentence of 2 ½ years for a punch of the jaw to the victim causing a double fracture. A sentence that was ultimately suspended for 3 years.

26.	This Court considers the following aggravating and mitigating factors are relevant:

Aggravating factors

•	Attack to the victim’s head

Mitigating factors

•	Abusive words spoken by the victim

•	Single punch

•	Guilty plea.

Previous convictions
#	OFFENCE	COURT
(SUPREME / MAGISTRATE)	COURT CASE #	SENTENCE	
1	Drunkenness	Mu’a Magistrate Court	235/92	Fine $10.00 pay now or 1 day imprisonment	
2	Negligent Driving	Fasi Magistrate Court	TR 38/2017	Fine $120.00- or 1-week imprisonment	

27.	This Court does not consider the previous convictions aggravates the present case, because:

o	The convictions are relatively old, the most recent is 6 years old, the other 22 years old.

o	None are for violence.

Pre-sentence report

28.	Mr. Maukailea is 50 years old. He grew up in a settled family. He has been with his de-facto partner since 2016 and they have three children.

29.	She describes him as responsible and a good father.

30.	He fully admitted the offence and stressed that he had no intention to cause the level of injury that he did.

31.	His church leader, Town Officer and wife have all submitted letters of in support of Mr. Manukailea.

32.	The report writer recommends that any penalty the court imposes should also be made in tandem with courses to help him rehabilitate.

Provocation

33.	In considering provocation in this case I have referred to the guidance in R v Taueki [2005], (2005) 21 CRNZ 769 [CrA188(1).001] at [32a]

"the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence."

34.	The insulting words spoken were unpleasant and abusive, but Mr. Maukailea overreacted in resorting to violence as a response, not least as the words were not directed at him. The provocation was not particularly serious.  Against that it was a spontaneous action and a single strike.

35.	I set a starting point of 26 months. This follows the tariff in R v Hafoka CR 90 of 2021, so takes into account the aggravating feature of targeting the face of the victim.

36.	This I reduce by 2 months to reflect that Mr. Manukailea reacted to abusive words, which started the altercation.

37.	For his guilty plea, albeit that it did not come at the first opportunity, I reduce his sentence by 20 %, in this case by 5 months.

38.	That gives a sentence of 19 months.

39.	The public must be protected from violence and the streets of Tonga must be safe places for the community. The custody threshold has been passed; this offence is so serious only a prison sentence is merited.

Suspension
40.	I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.

41.	Those principles are so as to promote rehabilitation. 

42.	The considerations advanced in that case were whether the defendant was young, of previous good character, or passed long time without offending; whether the defendant would take the opportunity to rehabilitate.

43.	I take into account his candid assessment of his actions in the pre-sentence report, his expressions of remorse and the letters written in his support. Albeit he is not very young, he clearly wishes to rehabilitate and his contrition reflects this.

44.	Accordingly, I will suspend the last 6 months of his sentence for 1 year on the following conditions:

o	not commit any offences punishable by imprisonment;
o	report to probation within 48 hours of his release;
o	be placed on probation;
o	complete life skills and alcohol awareness courses; and
o	live where directed by his probation officer.

Conclusion

45.	19 months’ imprisonment, the last 6 months suspended for 1 year.

SUPREME COURT	19 APRIL 2024	
NUKU’A LOFA	COOPER J