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R v Tomasi [2008] TOLawRp 11; [2008] Tonga LR 47 (5 March 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 381-3/2007

R

v

Tomasi anors

Andrew J
5 March 2008

Sentencing – bodily harm and housebreaking – guilty plea – three accused – various sentences for three accused

The three accused appeared for sentence having pleaded guilty to various offences following an incident on 17 September 2007 in which they damaged and entered a house and an occupant was attacked and assaulted. All of the accused had been drinking alcohol and at approximately 3 a.m. on the morning in question they smashed seven louvre windows and broke into the complainant's house. Tomasi walked towards the complainant, who was standing inside the house, and proceeded to punch her on the arm and on the head. Valikoula then hit her on the head with a steel rod and, while Tomasi held her down, Valikoula also hit the complainant on the head with a rock. Ngungutau remained outside the door of the house. A victim impact report disclosed that the complainant had been punched all over her body and struck on the head with a rod and a rock. She had begged the assailants to leave her alone and she was covered in blood. The complainant was only saved by the approach of a vehicle which caused the assailants to run away. She was hospitalised for about three days. She had four major injuries to the head area and had been left with scarring to her face and head. She also lost her sense of smell which could be permanent.

Held:

1. The most aggravating factor in the case was the extreme violence caused to an innocent and defenceless woman attacked in her own home. The aggravating factors were listed as: (1) the attack was entirely unprovoked; (2) it occurred in the victim's own home where she was entitled to feel safe; (3) she was a vulnerable person; (4) the attack was sustained over a period of several minutes, and (5) the injuries effected were serious and resulted in hospitalisation for several days.

2. After allowing a discount for the early guilty pleas, Tomasi was sentenced to a total of four years six months imprisonment with the last 12 months of the sentence being suspended for three years upon condition that the accused completed the Salvation Army Anger Management Course and be of good behaviour; Valikoula was sentenced to a total of 4 1/2 years imprisonment with the last two years of the sentence being suspended for three years upon condition that he completed the Salvation Army Anger Management Course and was of good behaviour; Ngungutau, who was not involved in the housebreaking or the acts of violence against the victim, was sentenced to nine months imprisonment on one count of wilful damage with the whole of the sentence being suspended for two years upon condition that he carried out 50 hours of community work.

Counsel for the Crown : Ms Finau
Counsel for the first accused : Mr Pouono
Counsel for the second accused : Ms Tonga
Counsel for the third accuser : Mrs Tupou

Judgment

The three accused have pleaded guilty to various offences following an incident which took place on or about the 17th September 2007 in which they damaged and entered a house and an occupant was attacked and assaulted.

In relation to the 1st accused Rodney Tomasi an undisputed statement of facts is as follows:

[1] Summary of Facts: Rodney Tomasi

"A summary of the facts is as follows:

On or about 1 September 2007 at approximately 3:00am the accused and others namely, one Semisi Valikoula and one Felela Ngungutau and others were drinking alcohol at one of the accuseds friends house at Hoi. Some of the boys that the accused were drinking with had passed out from too much alcohol, so the accused, Semisi Valikoula and Felela Ngungutau walked back to the village of Lapaha to a cemetery and continued to drink there. The accused and these other 2 boys then decided to walk to one Palolo Sili's (the complainant) house in Lapaha. When the boys got to this house Felela Ngungutau proceeded to smash approximately 7 louver windows with a rock on the eastern side of the house. The accused and Semisi Valikoula walked around to the western side of the house and smashed the louver windows and the accused walked towards the complainant, who was standing inside the house, and proceeded to punch her in the arm and in the head. Semisi Valikoula then walked in the house and hit her with a steel rod on her head. The complainant was struggling to get away, so the accused held the complainant down, while Semisi Valikoula hit the complainant with a rock on his head. Once the complainant had stopped struggling, the accused and Semisi Valikoula ran out of the house and went back to their house."

The accused is charged which 1 count of housebreaking and 1 count of abetment of bodily harm.

The particulars alleged were:

(1) On or about 1st September 2007 at Lapaha you did enter the dwelling house of Talite Sole, which is under the care and responsibility of 'Atonio Sili as a trespasser with an intention to commit a crime therein.

(2) On or about 1st September 2007 at Lapaha you did abet Bodily Harm to Palolo Sili when you held down Palolo Sili while she was being hit with a rock and steel rod in her head by Semisi Valikoula.

[2] Semisi Vabikoula pleaded guilty to one count of housebreaking, one count of Willful damage and one count of Bodily harm.

The particulars of the 3 offences are as follows:

(i) On or about 1st September 2007 at Lapaha you did enter the dwelling house of Talite Sole, which is under the care and responsibility of 'Atonio Sili as a trespasser with an intention to commit a crime therein.

(ii) On or about 1st September at Lapaha you intentionally and unlawfully caused damage to the dwelling house belonging to Talite Sole which is under the responsibility and control of 'Atonio Sili by smashing louver windows with your fist.

(iii) On or about 1st September 2007 at Lapaha you did wilfully and without lawful justification cause bodily harm to Pablo Sill when you repeatedly hit her in the head and one steal rod and one rock."

STATEMENT OF FACTS: Semisi Valikoula

"A summary of the facts are as follows:

On or about 1 September 2007 at approximately 3:00am the accused and others namely, one Fefela Ngungutau and one Rodney Tomasi and others were drinking alcohol at one of the accuseds friends house at Hoi. Some of the boys that the accuseds were drinking with had passed out from too much alcohol, so the accused, Fefela Ngungutau and Rodney Tomasi then decided to walk to one Pablo Sill's (the complainant) house in Lapaha. When the accused and others arrived at house Felela Ngungutau proceeded to smash approximately 7 louver windows with a rock on the eastern side of the house. The accused and Rodney Tomasi walked around to the western side of the house and smashed the louver windows, and broke into the house. Rodney Tomasi walked towards the complainant, who was standing inside the house, and proceeded to punch him in the arm and in the head. The accused then walked in the house and hit him with a steel rod on his head. The complainant was struggling to get away, so Rodney Tomasi held the complainant down, while the accused, Semisi Valikoula hit the complainant with a rock on his head. Once the complainant had stopped struggling, the accused and Rodney Tomasi ran out of the house and went back to their house.

The accused is a first offender."

[3] Felela Ngungutau

The accused pleaded guilty to one count of willful damage.

The particulars of that offence are that "on or about 1st September 2007 at Lapaha you intentionally and unlawfully caused damage to the dwelling house belonging to Talite Sole, which is under the responsibility and control of 'Atonio Sili by smashing louver windows with a rock.

A Statement of facts is as follows and I quote:

Statement of Facts: Felela Ngungutau

"A summary of the facts are as follows:

On or about 1 September 2007 at approximately 3:00am the accused and others namely, one Semisi Valikoula and one Rodney Tomasi and others were drinking alcohol at one of the accuser's friends house at Hol. Some of the boys that the accused were drinking with has passed our from too much alcohol, so the accused, Semisi Valikoula and Rodney Tomasi walked back to the village of Lapaha to a cemetery and continued to drink there. The accused and others then decided to walk to one Pablo Sill's house in Lapaha. When the accused and others arrived at this house, the accused proceeded to smash approximately 7 louver windows with a rock on the eastern side of the house. The other 2 boys walked around to the western side of the house and smashed the louver windows, and broke into the house. The accused then heard Pablo Sill cry out aloud, as he stood outside the door of the house. The complainant's wife then came from the eastern side of the house and the accused ran away.

The accused is a first offender."

It goes without saying that these were serious offences involving extreme violence.

[1] RODNEY TOMASI

I am satisfied that this accused was the ring leader in these events. This is not his first offence. In 2004 he was sentenced to 18 months imprisonment on charges of Arson, Common assault and Bodily harm. The last 12 months of that sentence was suspended for 2 years. The facts disclosed that this again was a matter involving gang violence. The accused and others set a tent alight which was occupied and assaulted the occupants. Some had been burnt.

The most aggravating factor in this case is the extreme violence caused to an innocent and defenceless woman attacked in her own home. A victim impact statement discloses that she was in great fear. She was punched all over her body. She was then struck on the head with a rod and a rock. She begged for the assistants to leave her alone. She was covered in blood. The rock hit her on the right eyebrow. She started to faint and was then hit on the back of the head with the rod. Her clothing began to be removed but she struggled violently and was saved by the approach of a vehicle which caused the accused to run away. She was in hospital for about 3 days. She had 4 major injuries in the head area and is left with scaring to the face and head. She lost her sense of smell which may be temporally or could be permanent. She was beaten until there was no more resistance. The aggravating factors are:

1. The attack was entirely unprovoked.

2. It occurred in her own home where she is entitled to feel safe.

3. She was a vulnerable person

4. The attack was sustained over a period of several minutes.

5. The injuries effected were serious and resulted in hospitalization for several days.

About the only thing that can be said in the accused's favour is that he did turn himself in and reported to the police about what he had done. I also take into account the fact that he has pleaded guilty. It is said that he has an uncontrollable anger when drunk but that he has enrolled himself at the Salvation Army Anger Management Course.

The accused is aged 25. He is married with 1 child but apparently was separated at the time of this offence. He was educated to form 5 but was apparently expelled from school. He did attend technical school but that finished when he was sent to gaol in 2004. The background to this offence appears to be an on-going dispute with other persons from his village which is known for family feuds and gang fights.

Those subjective circumstances are taken into account. But as stated the overriding factor is the extreme violence of this attack upon an innocent woman and the accused has a past history of violent offences.

Would you stand up please.

For this offence upon the charge of bodily harm you might have received a sentence of 6 years imprisonment. Due to your plea of guilty and your co- operation that is reduced to a period of 4 years and 6 months.

You are sentenced to a term of 4 years and 6 months. The last 12 months of that offence will be suspended for 3 years upon your date of release upon condition that you undertake and complete the Salvation Army Anger Management course and that you be of good behaviour.

Upon the offence of housebreaking you are sentenced to 2 years imprisonment.

The sentences are to be served concurrently.

[2] SEMISI VALIKOULA

I can see little distinction between this accused and his co-accused Rodney Tomasi. He has a further charge of willful damage but both assaulted the complainant together and I am satisfied that they were acting in concert so that both are equally responsible for all the assaults upon the complainant. I have already outlined those assaults and the aggravating features involved in Tomasi's case. I think this accused was led by Tomasi.

The accused is married with 2 children. He works as a labourer. He left school at aged 15. There is a report that he suffered head injuries when he was young following an accident in which he was hit by a bus, however psychological testing apparently said that he was alright. He is prone to losing control under the influence of alcohol as he was on this night. He had apparently gone to the home to beat up the male occupant but when he was not there they beat up his wife instead. He admits he hit her with the rod and the rock as Tomasi held her up. It was a shockingly cowardly attack.

I take onto account the fact that this is his first offence. I also take into account the fact that he has pleaded guilty which is deserving of a substantial reduction in sentence.

He says he is remorseful and says that he and his family have apologized to the complaint although that is contradicted on the probation report.

All of these subjective circumstances are taken into account. But again this is an aggravated matter of extreme violence upon an innocent person and the overriding factor in sentence must be public deterrence.

Would you stand up please.

For this offence you would have been sentenced on the count of bodily harm to 6 years imprisonment. Due to your plea of guilty that is reduced to a period of 4V2 years.

You are sentenced to imprisonment for 4 years and 6 months. The last 2 years of that sentence shall be suspended for 3 years from your date of release upon condition that you undertake and complete the Salvation Army Anger Management Course and further that you be of good behaviour.

Upon the charge of Willful damage you are sentenced to 12 months imprisonment.

Upon the charge of housebreaking you are sentenced to imprisonment for 2 years.

All sentences are to be served concurrently.

[3] FELELA NGUNGUTAU

The accused is charged only with one count of willful damage and was not involved in the acts of violence against the victim, Pablo Sili, neither did he break into the house.

He is aged 18 and seems to have gone along with the older co-accused and when they got to the house involved he smashed the louvers. Fortunately for him he ran when he heard sounds of violence from within the home. He was affected by alcohol.

I take into account the fact that he has pleaded guilty and I accept that he is genuinely remorseful. He comes from a good family and they have apologized to the victim and have replaced all of the louvers damaged at the house. The victim has forgiven the accused and relationships now between the victims family and that of the accused is now good.

The accused is a young first offender and is still at school and will sit for his senior secondary certificate examination this year.

I think the accused has learned his lesson but nevertheless it was a serious offence in which he involved himself in an attack upon the house of innocent persons placing them in great fear.

In all the circumstances I propose to pass a sentence but suspend that sentence upon condition, as recommended by the Probation Service, that he complete 50 hours of community service.

Would you stand up please.

You are sentenced to 9 months imprisonment. The whole of that sentence is suspended for 2 years upon condition that you be of good behaviour and that you undertake and complete 50 hours of Community Service Work in accordance with the work order which you shall now be given.