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Rex v Hola - Sentence [2025] TOSC 38; CR 33 of 2025 (2 May 2025)

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

CR 33 of 2025

BETWEEN:
REX
-Prosecution

AND:
AFIMEIMO’UNGA HOLA
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr G Aleamotu’a for the Crown Prosecution
The Defendant in person

Date: 2 May 2025

1. THE CHARGES

1. On 18 March 2025, the Defendant pleaded guilty to the following charges;
   1. Count 1: Serious Causing Bodily Harm, contrary to section 107(10 and (2)(c) of the Criminal Offences Act
   2. Count 2: Common Assault, contrary to section 112(a) of the Criminal Offences Act
2. Crown Sentencing submissions and a presentence report was subsequently ordered, and I know proceed to sentencing.
   
   2. CROWN SENTENCING SUBMISSIONS
3. On 30 April 2025, the Crown filed their sentencing submissions to assist the Court.
4. Aggravating and mitigating factors were submitted along with the following caselaw in support;
   1. Rex v Hafoka CR 90 of 2021
   2. Rex v Manukailea CR 171 of 2023
   100. Rex v Puamau CR 5 of 2018
   4. Rex v Malupo & Anor CR 31 – 33 of 2023
5. A victim impact report was also included from both victims of the offending; both stating being embarrassed by the incident and the subsequent ridicule they have faced due to the offending.
6. The first victim hopes that the outcome of these proceedings will deter all other players from such an outburst of violence in or around the sport.
7. In your case, the Crown recommended the following sentence:
   1. Count 1 – 24 months’ imprisonment with the final 6 months suspended for 2 years on conditions.
   2. Count 2 – 9 months’ imprisonment, with 3 months cumulative to that of Count 1.
8. A final sentence of 27 months’ imprisonment is submitted.
   100. PRESENTENCE REPORT & MITIGATION PLEA
9. You have shown remorse over the offending, and I received a mitigation plea from you that was filed on 25 March 2025, together with reference letters in support which I consider.
10. On 30 March 2025, a report from the Probation Office was also filed where I was told further details about your family, upbringing and personal history.
11. The report concludes that you are at a “low-risk” of reoffending and recommends a fully suspended sentence on conditions.
    4. DISCUSSION
12. You have pleaded guilty to serious causing bodily harm and common assault. They both arose out of the same incident on the 17 September 2024 after a rugby game in which you were a participant and punched Kenipolo one of line up officials causing him to lose a tooth in Count 1. In Count 2 you also punched Fredrick another line up match official causing him injury.
13. All this happened at a rugby match between Kolomatu’a Eagles and your team Liahona Old Boys. You were on the losing team. You chased one of the officials Kenipolo and punched the right area of his jaw and whilst he was on the ground, you punched him again. Another official Frederick together with other rugby players tried to separate you two but you were resistant and punched Frederick saying, “and also you, you cheated.”
14. This is disgraceful conduct and turned what should have been a civilised encounter no matter how earnest the competition may be.
15. What is particularly disturbing about your behaviour is that not only did you seriously assault one of the line officials, but when another doing his best to calm the situation tried to separaet you with the assistance of the other rugby players you punched him as well then walked off!
16. How different from the way in which good sportsman behave! There is a tradition here in Tonga as in other rugby playing countries of the losing team greeting the winners with courtesy and not by punching the rugby officials.
17. You have a bad criminal record of being unable to control yourself. You have five previous convictions for drunkenness, as well as convictions for the use of abusive profane language, obstruction of an authorised officer, the use of threatening language to a government servant, breaching a police safety order, electronic communication abuses and harm, theft, and assault.
18. However, I am told and I accept that for the last 4 years you have taken steps to turn your life around and have been active in drugs awareness courses.
19. You have been provided with financial assistance from Tongans anxious to eliminate the scourge of drugs in the Kingdom and have used their donations to provide posters, billboards and designed T-shirts to distribute to the community.
20. In addition, you have helped to instil in young people affected by drugs the futility of their behaviour and you are described as an excellent speaker.
21. You supposedly speak with authority and you are determined to stop the drug experiences that you went through from being the fate of others.
22. You are described as a reliable and trustworthy person to address the issue you faced and to share your own experiences. So why on earth did you behave as you did?
23. It seems to me to be incomprehensible, what you did in a burst of temper has thrown away all the good work that you had been doing and the confidence and trust which others placed in you.
24. I am told that you have apologised to one of the victims who accepted your apology but naturally wishes to emphasise that violent behaviour on or near the rugby field and particularly towards match officials should be protected, not be subject to abuse.
25. I must undertake a difficult exercise, on the one hand I must send a clear message that behaviour such as yours will not be countenance. At the same time, recognising the strong steps which you have taken to reform your behaviour.
26. I have considered the 5 comparable sentences hopefully drawn to my attention by the prosecution. They range from 19 months with the final 6 months suspended to a wholly suspended sentence of 9 months. These are useful guidelines but not tram lines as each case must be decided on its own discrete facts.
27. In your case not without some hesitation, I have decided to impose a wholly suspended sentence.
28. Count 1 which is a serious matter, I impose a starting point of 36 months’ imprisonment for which I deduct 18 months by way of the mitigating factors I have just mentioned.
29. Count 2 is the less serious offence in which I impose a starting point of 18 months with 6 months deducted making a total period of 12 months.
30. The upshot is that I consider the two offences although committed very near to each other were separate offences and is to be served consecutively.
    5. FINAL RESULT
31. For Count 1, I impose a sentence of 18 months’ imprisonment.
32. For Count 2, I impose a sentence of 12 months’ imprisonment, cumulative to Count 1.
33. The total sentence in these proceedings is 2 years and 6 months imprisonment fully suspended for 3 years on the following conditions;
    1. You must not commit any offence punishable by imprisonment
    2. You must be placed on probation
    100. You must report to the probation office within 24 hours of today
    4. You must undertake a course of life skills and anger management under the supervision of the Salvation Army within 12 months
    5. You must pay compensation to the victim in Count 1 the total of $3000 and to the victim in Count 2 the total of $1500. These payments must be made within 12 months.
    6. You must complete 100 hours of community service within 12 months.
34. I make it plain that this is an exceptional unique case. Any violence, threat, verbal abuse, on or near sports crowd will almost certainly result in an immediate custodial sentience. Violence or anger has no part in sport
    

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
NUKU’ALOFA

2 May 2025