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R v Kaufusi [2025] TOSC 89; CR 75 of 2025 (19 August 2025)

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

CR 75/2025

REX

-V-

TIMOTE KAUFUSI

SENTENCE AND SENTENCING REMARKS

BEFORE:
HON. JUSTICE GARLICK KC

Appearances:
Mr. G Aleamotu’a for the Prosecution
Mr. T Naufahu for the Defendant

Date of Hearing:
19 August 2025

The Charges

1. Upon his arraignment on 10 June 2025, Timote Kaufusi (“the defendant “) pleaded guilty to the charge of causing serious bodily harm, contrary to section 107(1) and (2)(c) of the Criminal Offences Act.
   

The Offending Conduct

2. On the 2^nd August 2024, the defendant, as part of a joint enterprise, went with two other persons to the home address of the complainant (Mr. Alifeleti Kailea), during the hours of darkness. The defendant knew well that he was going to that address to confront and exact revenge on the complainant by seriously assaulting him. The defendant knew that the other people in the joint enterprise had weapons and that they intended to use them in an attack on the complainant. The defendant’s case is that his role was to ensure that the complainant did not run off when he saw what was about to happen to him. The defendant accepts that he did restrain the defendant when he attempted to run away from his attackers, thereby allowing one of the others to seriously injure the complainant. In those circumstances, the defendant must be sentenced on the same basis as the other attackers, as a knowing participant in a joint enterprise to attack and seriously injure the complainant. This attack was a second attack on the complainant on the same day; however, I have disregarded that fact, as there is no evidence that the defendant was involved in that earlier attack. The defendant admits that he restrained the complainant when he attempted to run from the scene of the attack. Whilst the defendant restrained the complainant, one of the others (Tupou) attacked the complainant with scissors. The attack caused the following injuries to the complainant:
   1. a hematoma to the posterior of the scalp;
   2. a laceration between the second and third finger;
   100. a superficial laceration to the fifth finger.
3. Whilst it was submitted by the defence that the defendant’s conduct should be categorised as the lesser offence of common assault, I cannot accept that submission. I have to sentence the defendant for the more serious offence, he having pleaded guilty to that offence. I do so because the defendant was a party to the joint criminal enterprise to attack the complainant. I also observe that it was a matter of good fortune that the complainant was not injured more seriously.
4. The maximum sentence for the offence of causing serious bodily harm is imprisonment for 5 years.
   

Submissions on Behalf of the Crown Concerning Sentence

5. The Crown submit that there are the following aggravating features in this case.
   1. The offending conduct took place at night, at around 9 pm;
   2. The attack was completely unprovoked.
   100. The defendant has previous conviction for serious offences.
   4. This was a group attack on the complainant, and the defendant knowingly joined the criminal enterprise, knowing its purpose.
      

The Submissions in Mitigation of Sentence

6. The defence submits as follows:
   1. The defendant pleaded guilty at the earliest opportunity and cooperated with the police in their investigation of the offence.
   2. The defendant has married since the offence, and a custodial sentence will have a serious effect on his marriage.
   100. The defendant has a good reputation in his community and actively serves his village.
        

The Crown’s Submissions Regarding Sentencing in Comparable Cases

7. In section VI of its submissions, the Crown has set out a selection of decided cases to assist the court in determining the appropriate sentence in this case. I have considered those cases carefully. However, no cases can truly be said to be “comparable”, and it is for the court to determine the appropriate sentence in the particular case that it is dealing with, having regard to all the circumstances of the case.
8. The Crown submit that this offence passes the custodial threshold, and it refers to the case of Rex v ‘Ahohako [CR 132 of 2022], in which Justice Tupou KC cited the case of Hu’ahulu v Police [1994] Tonga LR 93, in which case the court commented as follows:

“... anyone who commits an offence of violence against another person runs a risk of immediate imprisonment. That will apply even to a first-time offender. The likelihood of going to prison becomes a virtual certainty ... when a weapon is used.”

I agree with that analysis of the appropriate sentence in this case. There must be an immediate custodial sentence, which reflects the seriousness of the offence.

9. The victim impact report merely states that the defendant has not apologised to the complainant.

Consideration of the appropriate sentence upon the defendant

10. Having regard to the submissions made on behalf of the Crown and the defence, I have determined that the following sentence is the appropriate and proportionate sentence in this case.
11. This was a deliberate joint enterprise to exact revenge upon the complainant for an incident that had occurred previously. The defendant knew that the other participants in the joint enterprise were armed with weapons. His role was to detain and restrain the complainant, whilst the others attacked him with scissors. Accordingly, for this offence, I take the starting point as being a sentence of imprisonment for a period of 30 months. However, taking into account the mitigating factors in this case, principally the defendant’s early plea of guilty and his cooperation with the police in the investigation, I impose a sentence of 20 months’ imprisonment. I now have to consider whether all or part of that sentence should be suspended.
12. The Crown accept that it is appropriate in this case for the court to consider suspending part of the sentence of imprisonment. The case of Mo’unga v Rex [1998] Tonga L.R. 154 remains the most important case on this subject, and gives clear guidance as to the approach that the court should adopt. The overriding question that should be considered by the sentencing Court is the likelihood of rehabilitation of the defendant. I am satisfied that in this case there is a high probability that the defendant will be rehabilitated during his time in custody, and that the imposition of a partially suspended sentence will assist that process of rehabilitation. Accordingly, I have reached the conclusion that in this case it is just and proportionate that the final 8 months of the sentence of imprisonment should be suspended for a period of two years on the conditions that I have set out below.
    

Final sentence

13. The sentence that I impose upon the defendant is one of 20 months’ imprisonment, the final 8 months of which shall be suspended for a period of 2 years. The conditions that shall attach to the suspended sentence order are as follows. The defendant shall:
    • (i) be placed on probation for a period of 2 years after his release;
    • (ii) not commit any offence punishable with imprisonment during the operational period of the suspended sentence (2 years);
    • (iii) report to the probation service not later than 48 hours after being released from prison.
      

This is the sentence of the Court

NUKU’ALOFA

HON. JUSTICE GARLICK KC
JUDGE

19 August 2025