Home | Databases | WorldLII | Search | Feedback Supreme Court of Tonga

R v Tau'alupe [2024] TOSC 96; CR-VAV 4 of 2024 (13 December 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR-VAV 4 of 2024

REX

-v-

DAVID KENT JUNIOR TAU’ALUPE

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
Appearances: Mrs. ‘E. Lui Mr ‘A. Fisi’iahi for Prosecution
Ms. L. Fonua for the Defendant
Date: 13 December, 2024.

The charges

1. On 7 October 2024, the Defendant was found guilty on one count of causing grievous bodily harm, contrary to section 106(1) and (2)(c) of the Criminal Offences Act.

The Offending

2. On the evening of 8 December 2023, the defendant, Kesitoni and the victim, ‘Alo’i were drinking alcohol at Kesitoni’s home before heading to Laione Kava Club, located opposite the Supreme Court of Vava’u.
3. At the Laione Kava Club, they joined others on the verandah of the club building and continued to drink alcohol. At one point the victim and another left to get more alcohol in Kesitoni’s vehicle, apparently without his permission.
4. Upon their return there was bantering between the defendant and the victim about the taking of the vehicle that escalated to an argument that led to the victim punching the defendant.
5. The defendant left and returned with a machete to attack the victim, but Kesitoni was able to stop him and reconciled them. The defendant left the club with the machete without incident.
6. He later returned and punched the victim challenging him to a fight. He was seen holding what looked like a small knife in his trouser pocket by Vakatapu Finau.
7. The victim took the challenge and got up to fight the defendant. He did not know about the sharp object in the defendant’s possession. It was not until while engaged in the fight with the defendant and others were urging the victim to retreat as he was bleeding, that he realised he was hurt. He moved back and saw blood on his clothes and backed off, resting his back against the wall and sliding down to a seated position.
8. He was immediately rushed to the hospital by a neighbour where he was attended to by nurse Sitiveni Lolohea. Lolohea cleaned the victim’s wound and took photographs of the injury for the doctor.
9. At 9am the next day, Dr Eileen Tupou examined the victim’s injuries and reported that the wound on the left upper abdomen consisted of a 10cm transverse laceration, 3cm deep with a minor cut on one of 2 exposed ribs with no active bleeding. An x-ray confirmed the absence of any pneumoperitoneum.

Previous Convictions

10. The Defendant has 1 previous conviction for driving under the influence of alcohol.

Crown’s Submissions

11. The Crown considered the aggravating factors against the Defendant to be:
    1. his not guilty plea;
    2. his previous conviction;
    100. the seriousness of the offence;
    4. the serious injury sustained by the Victim; and
    5. lack of cooperation with the Police.
12. The Crown submitted the mitigating features in his favour were:
    1. this was his first violent offence; and
    2. the apology offered to the defendant.
13. The Crown referred to the following comparable sentences:
    1. R v ‘Atunaisa Kali[2023] TOSC 44; CR 87 of 2023 - the defendant pled guilty to one count of causing grievous bodily harm. The accused attacked the victim with a short samurai sword and slashed his wrist when he raised his arm to defend himself. The wound was a deep laceration that fractured the victim’s hamate bone and damaged an exterior tendon.

A starting point of 4 years was set and reduced by 30% in mitigation resulting in a final sentence of 2 years and 8 months imprisonment with the final 16 months suspended for a period of 2 years on conditions.

2. Siokatame Tupou v R [2019] TOCA 8; AC 16 of 2018 (17 April 2019) - the defendant attacked two men with a machete. He pleaded guilty to grievous bodily harm and causing serious bodily harm. He was sentenced to 5 years’ imprisonment for the grievous bodily harm and 3 years for causing serious bodily harm with 1 year to be served cumulatively with the first count. The total final sentence was 6 years’ imprisonment, with the last 2 years suspended.
   

100. R v Vaingalu Pulotu (Unreported, CR 159 of 2019, 7 February 2020)- the Defendant pleaded guilty to stabbing the victim with a knife during a fight causing grievous bodily harm. The starting point was set at 5 years which was reduced by 18 months for mitigation, resulting in a final sentence of 3 ½ years’ imprisonment, with the final 6 months suspended.
     

4. Rex v Vunga Fusikata (Supreme Court, CR 313 of 2020, 4 June 2021) – the parties had been drinking. At one point the victim went to take a shower. While the victim was in the shower the defendant punched the left side of his head, dropping him to the floor causing bleeding to his left eye. While on the floor the defendant continued to punch the victim. They wrestled and fought across the back yard of the vicitm’s property until they were temporarily separated by the victim’s neighbour.

The defendant returned and continued to fight the victim where punches landed on the already injured left eye of the victim causing permanent blindness in that eye.

A starting point of 5 years imprisonment was set, reduced by 6 months in mitigation for his guilty plea (albeit after verdict), his taking responsibility for his actions, genuine remorse and first violent conviction, resulting in a final sentence of 4 ½ years imprisonment with the final 18 months suspended for 2 years on conditions.

5. Rex v Patelesio Mafi, [2014] TOSC 13; CR 32 of 2013 - the defendant was charged and convicted after trial for causing grievous bodily harm with a machete where no permanent injury was inflicted on the victim. A starting point of 6 ½ years was fixed. It was indicated that had there been permanent injuries, the starting point would have been lifted. For significant mitigating factors such as being a first time offender, acute ill health (heart attack), his remorse and guarantee of appropriate supervision and care in his home, the starting point was reduced by 3 years with the final sentence of 3 years imprisonment fully suspended on conditions for a period of 2 years.

Victim Impact report

14. The victim was interviewed on 8 November, 2024. He said that after the stitches were removed he experienced no further physical, emotional, spiritual or mental effects from the injury. He said that the defendant had gone to his home to offer an apology about what happened. He accepted his apology, noting it was resulted from intoxication.
15. The Crown’s sentencing formulation were as below:

a) a starting point of 5 years’ imprisonment;

b) reduced by 12 months for first violent offence and his remorse.

16. The Crown suggests that a partially suspended sentence on conditions was appropriate for his genuine remorse, lack of previous violent offending and high rehabilitation prospects.

Pre-Sentencing Report

17. The Defendant is 39 years old from Kameli, Vava’u. He has 6 siblings and has lived with his parents all his life. His mother is ill and his father suffers from amnesia.
18. His first marriage in 2007 ended in divorce. There were 3 children from that marriage. His former wife has custody of 2 with visitation rights to the defendant while the 3^rd child lives with him.
19. In 2016, the Defendant married Kalotoni Kofeloa of Holonga, Vava’u and they have 2 children. They are members of the Assembly of God church and leads the church media.
20. The Defendant dropped out of school in 4^th form but attended a Navy training course in Hawaii in 2019. In 2007, entered the Tonga Navy’s as a Royal Guard. He retired in 2009 and joined a group for seasonal work at Australia in 2015. In 2018, he was employed by the Tofa Ramsay Shipping company in Vava’u to date.
21. The report recorded that the defendant denied he committed the offence but that he was not likely to commit any crime in the future. The Neiafu District Officer confirmed that the defendant was active when it came to village matters and he was not a trouble maker.
22. As a result, it was recommended that a partially suspended sentence was appropriate.
23. No Sentencing Submissions were made or filed on behalf of the Defendant.

Considerations

24. The maximum penalty for causing grievous bodily harm is a term of imprisonment not exceeding 10 years, pursuant to section 106(1) of the Criminal Offences Act.
25. I consider the defendant’s conduct in the instant case was in response to the victim punching him during their first altercation. He was angry, went away and came with a machete. Fortunately, he was stopped and he took the machete away. For a second time, he returned with a small sharp object concealed in his trouser pocket to fight the victim. He was still angry and told the victim so.
26. That clearly signals a degree of planning and premeditation on his part coupled with the use of a highly dangerous weapon, that is, a sharp object demonstrating a high level of culpability.
27. I turn to the harm caused to the victim. Apart from being wounded on the night in question and having to be hospitalised and receive treatment, luckily, no permanent damage or suffering was caused to the victim and his life has returned to normal and he has forgiven the defendant.
28. The Court of Appeal in Tupou v R [2019] TOCA 8 held that;

"Offenders inflicting serious injury with a weapon must ordinarily expect to serve a term of imprisonment. That is particularly so given the prevalence and availability of machetes. "

29. In R v Pulotu [2020] TOSC, CR 159 of 2019, former LCJ Whitten KC said^[1]:

“In my view, a similar approach should be taken to offences involving knives, particularly when the possession of them is premeditated and they are concealed. Sentences for any form of assault in which a knife is used to inflict harm must include a significant component for specific and general deterrence.”

30. Here, the sharp object was capable of causing serious injury similar to that of a knife and was concealed. I therefore, adopt the approach in Pulotu.
31. Taking into account the seriousness of the offence, the planned and pre-meditated use of a sharp object concealed to be sprung on his victim without warning, pursuing the victim after he brought a machete and returning a second time with a sharp object, the serious injury caused, I consider a starting point of 4 years appropriate.
32. For the defendant’s admission of guilt and apology to the victim, the full recovery of the victim and his clemency towards the defendant I reduce the starting point by 18 months, resulting in a final sentence of 2 ½ years of imprisonment.
33. As mentioned, the defendant is 39 and is not young. However, this is his first serious conviction involving violence. In other words, he has lived almost 4 decades without criminal conviction. Further, I have taken into account the words and support of the district officer and his wife and have formed the view that the defendant will be capable of responding to a deterrent such as a partially suspended sentence. I believe that with the help of his wife and family, the defendant will utilise that period to rehabilitate himself. Accordingly, I am prepared to suspend the final 18 months of the defendant’s final sentence on conditions.

Result

34. The Defendant is convicted for causing grievous bodily harm to ‘Alo’i Kei and is sentenced to imprisonment for two years and six months.
35. The last 18 months of the sentence is to be suspended, for a period of 2 years from the date he is released from prison, on condition that the defendant is to:

(a) not commit any offence punishable by imprisonment during the period of suspension;

(b) be placed on Probation during the period of suspension;

(c) report within 48 hours of his release to the appropriate office at Vava’u for registration and thereafter as directed by his Probation Officer;

(d) Complete a course on alcohol, drug awareness and life skills as directed by his probation officer within the first 12 months of the period of suspension.

36. Failure to comply with the said conditions may result in the suspension being rescinded, in which case, the defendant will be required to complete the balance of his prison term.
37. Subject to compliance with the above conditions and any remissions available under the Prisons Act, the defendant will be required to serve 12 months in prison.
    

P. Tupou KC

Judge of the Supreme Court
NEIAFU: 13 December, 2024

^[1] Para 26