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Rex v Taufahema - Sentence [2025] TOSC 40; CR 218 of 2024 (7 May 2025)

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

CR 218 of 2024

BETWEEN:
REX
-Prosecution

AND:
MOTEKIAI TAUFAHEMA
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr A Fisi’iahi for the Crown Prosecution
The Defendant in Person

Date: 7 May 2025

1. THE CHARGES & BACKGROUND

1. On 20 January 2025, the Defendant not pleaded guilty to the following charges:
   1. Count 1: Common Assault contrary to section 112(g) of the Criminal Offences Act.
   2. Count 2: Serious Causing Bodily Harm contrary to section 107(1), (2)(c) & (4) of the Criminal Offences Act.
   100. Count 3: Discharging a Firearm with Intent to Intimidate contrary to section 109 of the Criminal Offences Act.
   4. Count 4: Using An Arm Without A License contrary section 4(1) and (2)(b) of the Arms and Ammunitions Act.
   5. Count 5: Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act.
2. Trial for this matter commenced on 19 March 2025 via AVL as the Court was in Vava’u. Judgement followed shortly after.
3. I acquitted you on Count 1 because of what happened inside the premises as set out in my judgement, Count 3 for discharging a firearm with intent to intimidate and using a fire without a license for the short reason in Count 4 as I was not satisfied to the criminal standard that what was used was in fact a firearm but a toy gun.
4. I did find guilty of Count 2 of serious causing bodily harm which relates to what happened outside the premises when you brandished the machete intending to hurt the witness Nuku who you believed had been rude to you and threw it towards him but missed and struck a third-party in his leg causing injuries which were quickly tended to at the local hospital. I accept that in the words of the report you “caused a wound which is not severe.”
5. I also found you guilty of Count 5 because I was satisfied that the utensils found in your house was used in connection with the sale of drugs.
6. I now proceed to sentencing, having received Crown Sentencing Submissions and a Presentence Report from the Probation Officer as directed on these two remaining counts.
   2. CROWN SENTENCING SUBMISSIONS
7. On 5 May 2025, the Crown filed their sentencing submissions to assist the Court.
8. Aggravating and mitigating factors were submitted along with the following caselaw in support;
   1. R v Pisina CR 15/2022
   2. R v Helu CR 325/2020
   100. R v Hau CR 36-37/2024
9. In your case, the Crown recommended the following sentence:
   1. Count 2 – 2 ½ years imprisonment with no suspension
   2. Count 5 – 12 months’ imprisonment

100. PRESENTENCE REPORT

10. On 5 May 2025, a report from the Probation Office was filed where I was told further details about your family, upbringing, personal history and your version of the offending.
11. You have no known health issues, you primarily work as a construction contractor, and you were deported back to Tonga from Australia in 2016 due to charges in Australia for manslaughter together with your brother.
12. You express remorse over the offending and accept the advice of the Probation Officer of the likelihood of imprisonment in your case.
    4. DISCUSSION
13. This incident was entirely of your own making, there was no need for you to escalate what you perceived to be a passing insult by producing what looked like a gun and later using a machete which caused some though not severe injuries.
14. What is particularly serious about your case is the recklessness with which you used a potentially lethal weapon. On this occasion, it caused injuries to an entirely innocent third-party, but it could have been fatal, and behaviour of that kind must be condemned.
15. Furthermore, you have an appalling record for serious violence. There are five offences of assault including firearms offences and a conviction for murder and manslaughter, which I infer involve two victims on the same occasion.
16. Since then, you have married, and I found your wife both supportive and impressive. It had been hoped that moving back to Tonga you would have changed your ways, but your short temper has got the better of you and I am satisfied that nothing other than an immediate custodial sentence is possible here.
    5. STARTING POINT & SUSPENSION
17. For Count 2, I impose a starting point of 2 ½ years imprisonment. I am satisfied that you remain a danger to the public and deserves protection from you.
18. I uplift your starting point by 6 months to a total 3 years imprisonment.
19. For Count 5, I impose a starting point of 3 months imprisonment, concurrent to Count 2.
20. I have further considered the principles of Mo’unga and whether I can suspend in full or in part your sentence.
21. You are not young, you have numerous previous convictions, and while I accept you have shown some remorse and apologised to one of your neighbours, I see no prospect of rehabilitation in your future.
22. It has also been helpfully bought to my attention that you have granted numerous suspended sentences with no change on your level of reoffending.
23. For those reasons any suspension in this sentence is not applicable.
    6. FINAL RESULT
24. For Count 2 of Serious Causing Bodily Harm contrary to section 107(1), (2)(c) & (4) of the Criminal Offences Act, I impose a sentence of 3 years imprisonment.
25. For Count 5 of Possession of Utensils contrary to section 5A of the Illicit Drugs Control Act, I impose a sentence of 3 months imprisonment, concurrent to Count 2.
26. This sentence is to be backdated to commence from 19 March 2025.
27. I further order the utensils found in relation to Count 5 is destroyed pursuant to section 32(2)(b) of the Illicit Drugs Control Act.

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
NUKU’ALOFA

7 May 2025