IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY

AM 27 of 2014
[MC, CR 708-709 of 2014]

BETWEEN:

POLICE
APPELLANT

AND:

TANIELA TAPUELUELU
RESPONDENT

Hearing: 23 June 2015 and 21 July 2015.
Decision: 21 July 2015.
Appearances: Mrs. E. Langi for the appellant
Mr. 'O. Pouono for the respondent

RULING

[1]	Mr. Tapueluelu appears for sentence after conviction on two counts under Section 107 of the Criminal Offences Act that he did cause serious bodily harm to Penisimani Pasese and Tomasi Talanoa Taufa on 24 April 2014 at Vava'u. The offences are punishable by a maximum period of five years imprisonment. 

[2]	Mr. Tapueluelu pleaded guilty to both charges before a Police Magistrate at Nuku'alofa and on 28 August 2014 he was discharged without conviction under Section 204 of the Criminal Offences Act. The Crown appealed from the Magistrate's decision and in a written ruling of 21 May 2015 I allowed the appeal and entered convictions on both charges. 

The facts 

[3]	The facts are adequately set out in my ruling of 21 May 2015 and I do not propose to set them out again. 

[4]	I have received written submissions from Counsel for Mr. Tapueluelu and for the Police. There have also been two hearings where Counsel have presented oral submissions. In addition I have before me and have taken into account the following:

[4.1]	A pre-sentence report.
[4.2]	A community service work report.
[4.3]	A reference from Mr. Samiu Vaipulu, the Peoples' representative for Vava'u 15 constituency.
[4.3]	A record of service and reference from CIP S. K. Faletau on behalf of the Tonga Commissioner of Police.
[4.4]	A reference from the Officer in Charge of the Criminal Investigation Unit of the Tonga Police CIP S. Latu. 
[4.5]	An agreed statement of facts presented by Counsel as medical reports as to the injuries suffered by the victims. 

[5]	In arriving at an appropriate sentence in this case I begin by taking into account the need to have regard to:

[5.1]	Promoting in Mr. Tapueluelu a sense of responsibility for, and an acknowledgement of, the harm he has caused;
[5.2]	Denouncing his conduct; 
[5.3]	Deterring him and others from similar offending;
[5.4]	Assisting with his rehabilitation.

[6] 	Mr. Tapueluelu's Counsel originally submitted that payment of a fine was the most appropriate sentence in this case. The pre-sentence report also recommended the payment of a fine. In my view a fine would be a manifestly inadequate punishment for offending that is as serious as this. A custodial sentence is warranted. For that reason I called for a community service work assessment specifically addressing the availability of suitable community service work in the event that the Court was minded to order that in conjunction with a suspended sentence of imprisonment. 

The Starting Point

[7]	In Hu'ahulu v Police [1994] Tonga LR 93 Chief Justice Ward said:

"... the fundamental point is that anyone who commits an offence of violence against another person runs a serious risk of immediate imprisonment. That will apply even to a first offender. The likelihood of going to prison becomes a virtual certainty if two or more people take part in a joint attack on one person or in any case where the victim is kicked whilst he is on the ground and when a weapon of any type is used".

[8]	Counsel for the Police referred me to R v Toki [2010] Tonga LR 39 which has some similarities to the present case. In Toki the accused was a Police Officer of long service who was found guilty of one count of bodily harm and two counts of common assault on a prisoner whilst in custody. The Court recognised that the accused had no previous convictions, and showed genuine remorse but on the other hand also noted that the assaults were serious and inflicted in circumstances where the accused was in a position of absolute power. The Judge imposed a sentence of two years imprisonment on the charge of causing bodily harm and suspended one year of the sentence for three years following the accused's release from prison. Counsel submitted to me that the sentence imposed in Toki would be appropriate here whilst conceding that a fully suspended sentence may also be considered in this case. 

[9] 	Mr. Tapueluelu is to be sentenced for two offences. I take as lead charge his offending in respect to Pensimani Pasese as that appears to me to be the most serious offence in terms of the level of violence, the injuries suffered and because there can be no doubt that in that case at least the violence was premeditated. To set a starting point for sentencing purposes I look at the case authorities to which I have been referred by the Police Counsel, of which Toki is the most relevant, and the aggravating and mitigating features of the offending. 

[10]	I consider the aggravating features of this offending are:

[10.1]	First, that the level of violence used was significant particularly given the age of the victim. Penisimani Pasese was 16 years old at the time. He was punched repeatedly and kicked while he was on the ground. He lost consciousness during the attack and his head was hit into a pole. 

[10.2]	The second aggravating feature is that there was no provocation for the attack. Mr. Tapueluelu believed his wife's cellphone had been stolen by Penisimani Pasese and Tomasi Taufa but he was wrong. 

[10.3]	The third aggravating feature is that the assault was premeditated. It occurred after the earlier attack on Tomasi Taufa and was related to it. The attack did not occur in the heat of the moment or under circumstances of high emotion. Mr. Tapueluelu went in search of Penisimani Pasese (having previously collected and attacked Tomasi Taufa) and drove him to a Police Station carpark where he administered a beating to him.

[10.4]	The fourth aggravating feature is that Mr. Tapueluelu was in a position of power over the victim. This was not only because he is a Police Officer but also because he had another person (who I understand was his son) with him and Penisimani Pasese had no realistic opportunity to avoid being beaten. He used his position as a Police Officer not only to take the boy against his will but also to gain access to premises where he could beat the victim.

[10.5]	A further aggravating factor is that the offence was a significant breach of trust that the community must have in its Police Officers. The Court has said a number of times that the Police are not above the law and Police Officers must be aware that the Courts will not tolerate abuse of their powers through the use of violence. 

[11]	In terms of mitigating factors I take into account the extent of the injuries suffered as I am required to do (Hu'ahulu & anor v Police [1994] Tonga LR 93). The injuries were sufficiently serious for Mr. Tapueluelu to plead guilty but did not result in any permanent harm. The medical evidence is that they are likely to have substantially healed after about one week. I note however that as the attack on Penisimani Pasese was continuing before a Police Officer intervened Mr. Tapueluelu can be very thankful to him that the boy did not suffer greater injury as he might otherwise have faced a more serious charge. 

[12]	Taking all these factors into account I consider that a starting point on the lead offence is a period of 2 years and 6 months imprisonment. However having looked at the aggravating and mitigating features of the offences, I now need to look at Mr. Tapueluelu as an offender and determine what are the factors relating to him and his circumstances which justify adjusting the starting point which I ultimately fix up, or down. 

[13]	In relation to aggravating features particular to Mr. Tapueluelu I note that he is an experienced Police Officer who should and did know better than to act in this way. There are however significant mitigating factors and I note the following:

[13.1]	Mr. Tapueluelu has previously been of good character and has provided long and dedicated service to the Police and all the information before me suggests he is a good husband and father and has, until now, been a role model for his community. 
[13.2]	He pleaded guilty at the first opportunity to do so and he has paid some compensation to the victims and has made peace with them and their families. These are important factors in my view. They show an acknowledgement that Mr. Tapueluelu accepts responsibility for what occurred and has ensured that the victims do not go through the stress of a trial to establish his guilt.
[13.3]	He has demonstrated remorse which I consider is genuine. 
[13.4]	To an extent he has already suffered a significant penalty in that I understand he was stood down from your position in the Police for a period. 

[14]	For completeness I should note that Mr. Tapueluelu's Counsel raised with me the effect of section 23 of the Constitution but in the result due to the sentence I will impose that section is not engaged in my view. 

[15]	Taking all of these factors into account I consider that Mr. Tapueluelu is entitled to a discount of 25 per cent on the starting point of two years and six months imprisonment; that is 1 year and 10 months imprisonment. 

[16]	The next issue I have to decide is whether the sentence of imprisonment should be suspended in full or in part. This is the issue that has caused me greatest difficulty. I have taken into account the principles in Mo'unga v R [1998] Tonga LR 154 and note that a suspended sentence should only be imposed when it will have a deterrent effect on the offender. Two circumstances when it may be appropriate to impose a suspended sentence identified in Mo'unga are where an offender is likely to take the opportunity offered by the sentence to rehabilitate himself and where there has been co-operation with the authorities. Both circumstances are applicable in this case. As to whether the suspension should be full or partial I place particular emphasis upon Mr. Tapueluelu's rehabilitation. I note in particular that the reference supplied by CIP Latu makes specific reference to an improvement in his approach to his work since he was allowed to resume his duties. CIP Latu states "He has shown great improvement in his lifestyle. He is counseling and modeling/challenging his co-workers to have a friendly relationship working with others. He shows big changes from the shortcomings he made." It appears to me that it is most desirable that Mr. Tapueluelu be given the opportunity to continue to rehabilitate himself, which opportunity may well be lost if he is now sent to prison. The adverse affects of that would in my view outweigh any perceived societal benefit. I also note that it would also be contrary to what I understand are the expressed wishes of the victims and their families. For those reasons I propose to suspend fully the sentence of imprisonment but subject to conditions including the performance of community service work which has been identified in the community service work report as being available. 

THE RESULT

[17]	On the lead offence that Mr. Tapueluelu did cause serious bodily injury to Penisimani Pasese (CR 708/14) Mr. Tapueluelu is sentenced to 1 year and 10 month imprisonment. On the offence that Mr. Tapueluelu did cause serious bodily injury to Tomasi Talanoa Taufa (CR 709/14) Mr. Tapueluelu is sentenced to 1 year and 4 months imprisonment. The sentences are to run concurrently.

[18]	The sentences of imprisonment are fully suspended on the following conditions:

[18.1]	Mr. Tapueluelu is to commit no further offences punishable by imprisonment during the period of the suspension.
[18.2]	He is placed on probation for 12 months to live where directed by his Probation Officer.
[18.3]	He is directed to carry out 100 hours of community service work under the direction of the Probation Service to be carried out at with Tofoa Community Patrol commencing on 23 July 2015. 

[19]	I direct that the Probation Service is to report to the Court upon completion of Mr. Tapueluelu's community service work providing dates and periods worked. 

O.G. Paulsen
LORD CHIEF JUSTICE

NUKU'ALOFA: 21 July 2015.