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Taufa v R [2005] TongaLawRp 24; [2005] Tonga LR 330 (21 July 2005)

IN THE COURT OF APPEAL OF TONGA

Taufa

v

R

Court of Appeal, Nuku'alofa
Burchett, Tompkins, and Salmon JJ
AC 17/2004

13 July 2005; 21 July 2005

Sentencing – appeal against excessive sentence – appeal dismissed

For the full facts and the Supreme Court decision, see R v Taufa [2004] Tonga LR 337 and 337.

The appellant was found guilty of two charges of grievous bodily harm and one charge of bodily harm. He was sentenced to 4½ years imprisonment on each of the more serious charges and to 2 years on the lesser charge, all sentences to be concurrent. The Judge ordered that the appellant serve a term of 3 years cumulative on a term of imprisonment already being served. The balance of 18 months was suspended for 3 years on conditions. He appealed against the sentences imposed.

Held:

1. The Court concluded that there was a period when the appellant was under control and was capable of making the decision to walk away rather than place himself in the situation where control was lost. When he went after his mother-in-law he made a considered decision to take the cane knife. This being so the Court was satisfied that a period of actual imprisonment (rather than a suspended term) was justified.

2. The Supreme Court Judge gave a generous discount for the mitigating factors, principally his mental disorder, and then suspended 1/3 of the resulting sentence. The Court did not consider the sentence to be excessive. Consequently the appeal was dismissed.

Case considered:

R v Graham (New Zealand Court of Appeal, CA 391/96, 27 February 1997)

Counsel for appellant: Mr Niu
Counsel for respondent: Mrs Taumoepeau

Judgment

Introduction

[1.] The appellant was found guilty after trial before McElrea J of two charges of grievous bodily harm and one charge of bodily harm. He was sentenced to 4½ years imprisonment on each of the more serious charges and to 2 years on the lesser charge, all sentences to be concurrent.

[2.] The Judge ordered that the appellant serve a term of 3 years cumulative on a term of imprisonment already being served. The balance of 18 months was suspended for 3 years on conditions. He has appealed against the sentences imposed.

Background

[3.] The appellant attacked three people with a cane knife. They were his wife, his mother-in-law and a complete stranger.

He had walked out of prison, something which he had done on a number of occasions. What followed is described by the Judge in his sentencing remarks as follows:

On this day he went to see his wife and mother-in-law, being upset about rumours he had heard of his wife having an affair with another man, which she had persistently denied. He confronted her in the early hours of the morning in the presence of the mother-in-law and an argument ensued which I have described in my verdict already. In the course of that it appears to have been admitted that in essence he had been deceived by both women.

Shortly after that when he saw the mother-in-law leaving the house he told her to come back, and when she failed to return he chased her, picking up the machete that he had brought from the prison and attacking her about the head area. He stopped only when a neighbour to whose house the mother-in-law had run shouted out at him. He went back to the house and then struck the young man when he failed to open the door to let him in, and once he kicked his way in through the door and into the house he attacked his wife mercilessly with the machete about the head and shoulders and at the back of her neck, inflicting numerous and serious wounds. How she survived that, I do not know. She was taken by others immediately to the hospital, as was the mother-in-law, and fortunately the medical assistance given was sufficient to save their lives. They still show the scars of that attack.

[4.] At his trial the essence of the appellant's defence was insanity but the Judge found that had not been proved on the balance of probabilities. The defence of insanity was supported by the evidence of Dr Puloka a psychiatrist called for the defence.

[5.] The Judge found that the evidence of Dr Puloka established that the appellant suffered from a condition known as Intermittent Explosive disorder, which resulted in his having explosive episodes when he gets frustrated by other people. On such occasions he responds in a way that is quite out of proportion to what is involved. It seems that the condition can be controlled by the drug Prozac which Dr Puloka had prescribed for the appellant, although unfortunately, on this occasion, the prison officers had lost his tablets. This Court was advised that since these events in February 2002 the appellant has been taking Prozac and has had no outbursts of violence. Of course he has been in prison over that period of time.

Sentencing remarks

[6.] In sentencing the appellant the Judge accepted that as a result of mental illness the appellant had a reduced level of self control. He acknowledged that this was a significant mitigating factor. Mr Niu for the appellant criticized the Judge's finding of "a reduced level of self control". He maintained that the evidence established a greater loss of self control that was indicated by the statement.

The Judge said later in his remarks:

If somebody attacks somebody else with a machete and slashes them about the head and the neck they are very lucky that they are not on a murder charge or at least on attempted murder charge. In my view the starting point for sentencing in this case has got to be towards the upper end of the maximum sentence for grievous bodily harm, because it is about as serious as one can get without being on an attempted murder or murder charge. There were multiple wounds inflicted with a dangerous instrument on two people, not one.

Mr Niu criticized the Judge's reference to murder and attempted murder submitting that it was clear that there was never any intent to kill.

[7.] The Judge said that in the absence of mitigating factors the appropriate starting point would be 7 ½ to 8 years imprisonment. In arriving at that figure he noted the existence of a conviction in February 2001 for conspiracy to rob in respect of which the appellant was serving a term of imprisonment of 6 years.

Argument in this Court

[8.] Mr Niu submitted that the evidence of Dr Puloka established that the appellant was, as a result of his disorder, unable to resist the aggressive impulse of his acts. It was for this reason that he criticized the Judge's reference to "a reduced level of self control". Mr Niu submitted that there was no evidence of an ability to be able to exercise any self control at the time he inflicted the injuries on the victims. On that 110 basis Counsel submitted that the appellant had no criminal responsibility for his acts and that it was therefore wrong to keep him in prison.

[9.] In relation to the expressed fears of the appellant's mother-in-law and the Probation Officer, that if he was released from prison further acts of violence would occur, Mr Niu noted that as long as the appellant took his medication such behaviour would be prevented. He submitted that the normal requirements in sentencing of deterrence, punishment and retribution are absent in this case.

[10.] Mr Niu referred to the decision of the New Zealand Court of appeal in R v Graham CA 391/96; 27/2/97, where a sentence of 7 years for the manslaughter of the appellant's daughter was reduced to 5 years imprisonment, in part because the appellant suffered from the same condition.

[11.] Mr Niu did not seek a reduction of sentence but submitted that the whole of it should be suspended.

[12.] For the Crown Mrs Taumoepeau submitted that the appeal should be dismissed. She said that all the issues raised in mitigation had been properly considered by the judge.

[13.] She noted the findings of the Trial Judge that immediately prior to attacking his wife the appellant was demanding answers from her as to her conduct with another man and this indicated that his mind was engaged in a rational process. The Judge also noted that the appellant's initial response was to walk away and that he later decided to pick up the knife.

[14.] She emphasized that these offences were committed while the accused was serving a prison sentence for serious offending.

Consideration

[15.] We have considered carefully all that Mr Niu has put to us but have nevertheless concluded, for the reasons that follow, that the appeal should be dismissed.

[16.] We rely on the description of Intermittent Explosive disorder given in McElrea J's decision on conviction and sentencing notes. We have considered the facts as found by the Judge and the appellant's own description of his actions contained in his statements to the Police. We bear in mind that in reaching his factual conclusions the Judge had the advantage of considering all the evidence heard by him at the trial.

[17.] According to the evidence, Intermittent Explosive disorder is a recognized mental disorder and one of a number of "impulse control" disorders. It is characterized by discrete episodes of failure to resist aggressive impulses resulting in serious assaults or destruction of property.

[18.] The Judge accepted the proposition of the Crown that the judgment of the Court must be addressed to the moment of the first blow. He seems also to have accepted the proposition that the loss of control commenced when the attack on the mother-in-law and later the wife started.

[19.] The appellant's own statements seem to support this. Importantly the appellant did not lose control when he first established his wife's infidelity – he walked out but later returned. Even then he did not lose control. He spoke further to his wife. He then chased after his mother-in-law but exercised the decision to pick up the cane knife before doing so. He gave as his reason for chasing after his mother-in-law a desire to stop her from calling the police or the prison or getting some people to beat him up, another indication of rational reasoning at this stage.

[20.] We conclude therefore that there was a period when the appellant was under control and was capable of making the decision to walk away rather than place himself in the situation where control was lost. When he went after his mother-in-law he made a considered decision to take the cane knife. This being so we are satisfied that a period of actual imprisonment (rather than a suspended term) was justified.

[21.] We consider the Judge's starting point of 7 ½ -8 years to be appropriate given the aggravating factors. These include the appellant's previous offending and the fact that this offending occurred after he escaped from the prison. Both his wife and his mother-in-law received very serious injuries. The mother-in-law has a permanent disfigurement to her face. The wife's injuries were life threatening.

[22.] The Judge has given a generous discount for the mitigating factors – principally his mental disorder - and has then suspended 1/3 of the resulting sentence. We do not consider the sentence to be excessive. Consequently the appeal is dismissed.