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Rex v Mu'asika [2025] TOSC 45; CR 28 of 2025 (29 May 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 28 of 2025

BETWEEN:

REX
-Prosecution

AND:
SETEONE MU’ASIKA
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC
Appearances: Mrs E Lui for the Crown Prosecution
Mr T Naufahu for the Defendant

Date: 29 May 2025

1. THE CHARGES
   1. On 1 April 2025, the Defendant pleaded guilty to the following charge:
      1. Count 1: Serious Causing Bodily Harm contrary to section 107(1), and (2)(c) of the Criminal Offences Act.
   2. The Defendant is charged together with one Soane Tatola in this indictment however on arraignment it was made know that this Defendant has escaped the jurisdiction and has not been apprehended.
2. CROWN SENTENCING SUBMISSIONS
   3. On 19 May 2025, sentencing submissions were filed from the Prosecution to assist the Court.
   4. Aggravating and mitigating features submitted including the following sentencing comparables:
      1. Rex v Fangupo (CR120/2022, TOSC 6, 25 January 2023)
      2. Hu’ahuhu v Police [1994] Tonga LR 93
      100. Rex v Fifita (CR 158/2019)
      4. Mo’unga v R [1998] Tonga LR 154
   5. The Crown attempted to contact the victim for an impact report but was unsuccessful.
   6. The final recommendation for sentencing from Crown is as follows:
      1. Count 1: 30 months’ imprisonment with the final 12 months suspended on conditions
   7. I am further told by the Prosecution today, that despite having confirmed that he does indeed have a previous conviction from the Magistrate Court last year as stated in the Probation Report, they maintain the same position in terms of sentencing.

100. PRESENTENCE REPORT & MITIGATION PLEA
     8. A presentence report was filed on 13 May 2025 providing the Court with an overview of your personal history, upbringing and factors relating to the offending.
     9. A partially suspended is recommended for the Defendant on conditions.
     10. Earlier today, your learned counsel also filed sentencing submissions in mitigation which I have considered.
     11. The submission relied on Rex v Fifita (CR 158/2019), included reference letters and elaborated more your mitigating factors.
     12. Your learned counsel recommended a non-custodial sentence as the final appropriate sentence in your case.

4. DISCUSSION
   13. You approached the complainant who is well known to you while holding a machete with Tatola who had a broken bottle in his hand. He tried to attack the complainant but missed and then stabbed him again. The complainant ran towards a fence and attempted to climb over.
   14. It was then that you pursued him with a machete and as he was attempting to mount the fence, you struck his back with the machete. He fell to the ground but managed to get up and escape. You then quit.
   15. The complainant wounds were caused partially by you and partially by your co-accused. So far as you were concerned, I am satisfied that the injury sustained to his back was consistent with the assault by the machete fortunately no serious injuries ensued, and he was treated conservatively.
   16. What is serious about your case is the use of a machete which is becoming more frequent in the Kingdom and particularly as here when accompanied by prior bouts of drinking alcohol.
   17. The Courts must do all they can to stamp out this invidious practice because let the facts be faced, a machete is a lethal weapon. It could cause catastrophic and indeed fatal damage, the fact that no such damage was caused here is not determinative of the final outcome of the case because the Courts must do all it can to stamp out the increasing use of machetes during disagreements.
   18. A custodial sentence is inevitable. Although your actions, apart from using a machete was essentially an alcohol-fuelled revenge attack, you pleaded guilty early, delivered a single blow, cooperated with police, surrendered voluntarily, and reconciled with the victim’s family, who accepted your apology.
   19. I have read quite a lot about you to your credit, and I am told that you have assisted in the suppression of public disorder in your community and you are in a de facto relationship and have two children. I am also told that you partially take care of your mother financially.
   20. You used to be a soldier and were raised in what I am told and accept is a respectable family well known in the community and as I indicated earlier as you have assisted in the maintenance of good order in your community.
   21. I have considered the comparable authorities helpfully submitted by the prosecution and your learned counsel but as I have previously stated and as the Court of Appeal recently confirmed they are to be regarded as yardsticks rather than strict tumplines, as each case must be decided on their own in fact.
5. STARTING POINT & SUSPENSION
   22. I start with 36 months as the headline count, the same as that submitted by the Defence which I had decided before receiving their submissions.
   23. I reduce by 18 months by reason of your prompt admission of wrongdoing incorporation with the police.
   24. This means a sentence of 18 months’ imprisonment remains.
   25. I have considered the question of suspension in whole or in part following the guidelines in Mo’unga. You are young or comparatively young. You have a previous record as confirmed today and apart from that an unblemished character.
   26. You are likely to take the opportunity of your sentence to rehabilitate to yourself and I accept that what happened was without a high degree of premeditation, to the extent there was provocation and that the offense was accompanied by the actions of your co-Defendant
   27. For those reasons I suspend the final 12 months of your sentence on conditions.
6. FINAL RESULT
   28. For Count 1 of Serious Causing Bodily Harm contrary to section 107(1), and (2)(c) of the Criminal Offences Act, I impose a sentencing of 18 months’ imprisonment with the last 12 months suspended for a period of 2 years on the following conditions:
       1. You must not commit any further offence punishable by imprisonment.
       2. You must report to the Probation Office within 48 hours of your release from custody and placed on probation.
       100. You must complete a life skills course on anger management with the Salvation Army at the Direction of the Probation Office, or any similar course that is available.
   29. For the avoidance doubt, this means that you will serve 6 months in custody followed by 12 months suspended for 2 years on the conditions I have just mentioned.
   30. That is the order of the court.
       

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NUKU’ALOFA

29 May 2025