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Malupo v R [2024] TOCA 23; AC 26 of 2023 (20 November 2024)

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

[AC 26-27/2023]
[CR 31-33/2022]

BETWEEN
KALI MALUPO
First Appellant

AND
SIONE MALUPO
Second Appellant

AND
SIAOSI MALUPO
Third Appellant

AND
Rex
Respondent

Hearing: 12 November 2024

Court: Randerson J, Harrison J and Dalton J

Counsel: William Edwards for the Appellants
‘Elisiva Lui for the Respondent

Judgment: 20 November 2024

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JUDGMENT OF THE COURT
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Introduction

[1] The first appellant, Kali Malupo, is the father of the second and third appellants, Sione and Siaosi. They were each convicted after trial before Cooper J on charges relating to a serious assault on the complainant Filihia Li on 31 October 2022 at Manuka. Kali was convicted on a charge of causing grievous harm while Sione and Siaosi were convicted on an alternative charge of common assault.
[2] Kali was sentenced on 19 October 2023 to seven years imprisonment with the last two years suspended for two years on conditions. Sione and Siaosi were each sentenced to imprisonment for six months with the last two months suspended for one year on conditions. Kali continues to serve his sentence of imprisonment while Sione and Siaosi have now completed the component of imprisonment in their respective sentences. Kali appeals against conviction and sentence . Counsel confirmed that Sione and Siaosi have served their sentences and both abandon their appeals ( AC 27 of 2023).

The verdict below

[3] The brief facts as found by the trial Judge are that there was a confrontation between, Filihia, Kali and his two sons. It is not in dispute that Filihia was drunk and standing in the roadway as Kali approached in his motor vehicle accompanied by his wife and Sione. The Judge accepted it was unclear whether Siaosi was also in the motor vehicle, but he found that Siaosi was quickly on the scene after the confrontation commenced. Filihia smashed the headlight of Kali’s vehicle and then advanced towards the driver’s side window at which point Kali produced a machete. That caused Filihia to back off since it is common ground that he was unarmed. Kali then left his car armed with the machete and pursued Filihia into the grounds of his father’s property nearby. He attempted to strike Filihia three times. The first two strikes did not connect but the third strike caused severe injury to Filihia’s head. The undisputed medical evidence showed that a significant area of Filihia’s scalp was missing. This was described in the medical report as an open wound with skull exposure. A permanent scar remains.
[4] The Judge found that Sione and Siaosi were also involved in the attack. He found that Kali’s machete attack occurred after the two sons had already attacked Filihia by punching him. Both continued to attack him after he had been wounded by the machete wielded by Kali.
[5] In reaching his conclusions on the evidence the trial Judge essentially accepted the evidence of the prosecution witnesses and rejected a contrary version of events advanced on behalf of the appellants. In particular, the Judge recorded the appellants’ case that after the headlight was smashed, Filihia approached the driver’s window of Kali’s vehicle in which Kali was sitting and punched him twice through the open window. On Kali’s account, he dodged the first punch; grabbed Filihia’s hand on the second time to stop the attack; then grabbed the machete he had nearby and thrust it out the window horizontally before bringing it backwards in an arc. According to Kali’s evidence, this happened just as Filihia broke free from Kali’s grasp and was about to punch him a third time. He said that the single sweep of the machete backwards was unintended but stated that it caused the injury to Filihia’s head. On his behalf, his counsel at trial (not Mr Edwards) contended that the wounding was proportionate self-defence.
[6] There were two key reasons given by the Judge for rejecting the account given by Kali and other defence witnesses. First, he found that Kali’s description of how the wound to Filihia’s head was inflicted was inconsistent with the objective and undisputed medical evidence that the injury was to the top of Filihia’s head from which the Judge concluded that the injury could not have been inflicted in the way described by Kali while seated in his motor vehicle. Second, for reasons which he explained in detail, the Judge preferred the evidence given by the prosecution witnesses where it conflicted with accounts given by defence witnesses.
[7] The Crown case against Sione and Siaosi was that they participated on the basis of a joint venture by joining their father in his attack and intended to assist in the deliberate injury he caused with the machete. The prosecution contended they had repeatedly punched Filihia as Kali was leaving his vehicle armed with the machete; encouraged their father to attack Filihia and continued to punch him as he kept retreating all the way back to his fale. Alternatively, the prosecution submitted that even if their conduct did not constitute causing grievous bodily harm on a joint venture basis, they were nevertheless guilty of common assault.
[8] Sione’s defence was that he had not punched or attacked Filihia and he did no more than hold Filihia back from attacking Kali. Siaosi maintained that he was not at the scene at this time and arrived only as Filihia was being led to his father’s fale. He denied any physical interaction with Filihia or making any threats towards him.
[9] In rejecting their accounts, the Judge again preferred the evidence given by the prosecution witnesses and went as far as concluding that the defence witnesses had “put their heads together and concocted a version of events as to how the head injury was caused”. However, the Judge was not satisfied that the prosecution had proved to the required standard that Sione and Siaosi had participated in a joint venture with their father with the necessary intent to cause grievous harm. He was critical of the prosecutor for not sufficiently questioning the defence witnesses on this point. Nevertheless, there was sufficient evidence to show that Sione and Siaosi had both been involved in punching Filihia and they were therefore guilty of the alternative charge of common assault.
[10] The Judge rejected the plea of self-defence finding that the use of a machete against an unarmed man was plainly disproportionate. That finding is not in dispute on appeal.

Kali Malupo

Conviction appeal

[11] The grounds of appeal against conviction advanced in the notice of appeal may be summarised as follows:

• (a) The inconsistencies in the Crown case as to how the critical machete blow was inflicted are such as to raise reasonable doubt;
• (b) The Judge failed to take into account that it was the complainant, Filihia, who provoked the incident by smashing the headlight on Kali’s vehicle and then challenging him to a fight;
• (c) The Judge was wrong to conclude a group attack was involved.

Sentence

[12] The appeal against the sentence imposed on Kali was advanced in the notice of appeal on the basis that the sentence was manifestly excessive because:

• (a) There was no evidence that the circumstances warranted the charge of attempted murder as the Judge indicated;
• (b) The Judge had failed to take into account Filihia’s conduct in provoking the incident;
• (c) The Judge had wrongly concluded there was a group attack;
• (d) The sentence was inconsistent with those imposed in comparable cases.

Discussion

Conviction appeal

[13] Before us, Mr Edwards focussed less on the conviction appeal and more strongly on the sentence appeal. The outcome of the former depends on the acceptance by the Judge of the prosecution evidence in contrast to directly conflicting accounts given by the defendants and their witnesses of what happened on the night in question.
[14] We have ourselves reviewed the transcript of evidence. We accept that the evidence given by the complainant Filihia was inconsistent in some respects with that given by other prosecution witnesses. For example, he maintained that both Sione and Siaosi were in the vehicle driven by their father, Kali, and, in cross-examination, he stated that Sione had punched him but he “did not recognise” what Siaosi was doing. However, given that Filihia was admittedly very drunk at the time of the incident, it might be expected that his account of what happened may not have been wholly accurate.
[15] The Judge was entitled to accept the evidence of the other prosecution witnesses which was broadly consistent. He also had the advantage of seeing and hearing the witnesses. The prosecution evidence was given by the complainant’s father Melekiola Li; his wife Kalonikakala Li and ’Otukolo Malupo who was a guest present at the fale. All confirmed that Kali had struck Filihia with the machete outside the vehicle and that both Sione and Siaosi punched Filihia and encouraged their father to attack him. Whether Siaosi was in the vehicle before the attack is immaterial since the Judge was entitled to find on the evidence that if he was not, he was certainly on the scene soon after the confrontation commenced and was engaged in the assault that took place. We accept that “Otukolo Malupo said that Kali had initially aimed the machete at Filihia while Kali was still in the vehicle but he denied that any injury was caused to Filihia at that point.
[16] The transcript revealed that the Judge took care to explore with some precision how the defence version of events relating to the use of the machete in the motor vehicle could have occurred. He invited defence witnesses to demonstrate how this happened. He was entitled to conclude on the basis of the undisputed medical evidence of the location and nature of the wound to Filihia’s scalp that this could not have occurred in the way described by the defence witnesses and to reject their account accordingly.
[17] It is common ground that Filihia’s conduct triggered the confrontation that occurred. It is not in dispute that he was “loud and drunk”, smashed the headlight on Kali’s vehicle and then challenged him to a fight. While self-defence was raised at trial and rightly rejected by the Judge, provocation was not argued and, in any event, is not available as a defence in the Kingdom of Tonga other than in relation to a charge of murder. We discuss below the relevance of provocation as a mitigating factor in relation to sentence .
[18] Given the findings of the Judge we are satisfied that the events are properly described as a “group attack”. Mr Edwards was not disposed to argue otherwise. Both Sione and Sioasi were involved in punching Filihia before and after the machete was used on him by Kali and, according to the prosecution witnesses whose account was accepted by the Judge, they encouraged Kali to attack Filihia. The Judge also found that Kali told his two sons to step aside from their attack on Filihia so that he could strike him with the machete. The group nature of the attack was a proper finding notwithstanding that the Judge was not persuaded there was sufficient evidence that Sione and Sioasi had participated in a joint venture with Kali with the necessary joint intent to cause grievous harm.
[19] We conclude that the appeal against conviction by Kali must be dismissed.

Sentence appeal

[20] In his sentencing remarks, Cooper J accepted that the aggravating features of the offending included that the injury would have been much worse had Kali not been tackled at the critical moment by Filihia’s father; a group attack was involved and took place at night; and the complainant was unarmed. The mitigating factor was Kali’s previous good character. He had no prior offences and produced favourable references. We note too that Filihia and his father had asked for mercy in respect of those involved in the attack.
[21] The Judge adopted a starting point of six and a half years imprisonment citing comparable sentences.^[1] However, he added 12 months to reflect the fact that it was a group attack, his view that the clear intention was to kill Filihia and the repeated attempts to do so with the machete. The Judge then reduced that figure by six months to reflect the mitigating factors, arriving at an end sentence of seven years imprisonment. Applying the principles in Mo’unga,^[2] he suspended the last two years of the sentence for a two-year period on conditions.
[22] The observations by the Judge about Kali’s true intention stemmed from the conclusion stated in his verdict^[3] that “It will be entirely obvious to anyone that all defendants should have been charged with attempted murder”. Mrs Lui accepted that the 12 month increase in the starting point on the basis of the group attack and Kali’s intention to kill the complainant was unjustified. In this respect she accepted that the sentence was manifestly excessive.
[23] We will refer below to comparable cases, but we record our concern about the Judge’s reference to an attempted murder charge. Presumably this reflected the Judge’s view on the seriousness of the attack, but it is not permissible to sentence on the basis of a more serious charge which the prosecution has seen fit not to prefer. The relevant intention for sentencing purposes here was an intention wilfully and without lawful justification to cause grievous harm, not an intention to kill. Some uplift might have been justified on the basis that a group attack was involved but, on the present facts, that factor should in our view have been encompassed in the starting point .
[24] Before considering the appropriate sentence we address the relevance of provocation as a mitigating factor in the sentence imposed. The Judge noted in his sentencing remarks that it had not been raised as a mitigating factor. Nevertheless, he considered the issue in case it would be raised on appeal. He referred to the Sentencing Council Guidelines for manslaughter in the United Kingdom and the approach of the courts in New Zealand in considering provocation for sentencing purposes.^[4] It is axiomatic that the partial defence of provocation is available in Tonga only in the case of murder. In New Zealand the defence in such cases is no longer available but provocation may be available as a mitigating factor in exceptional cases for murder and other crimes of violence. Its application is wholly fact dependent, cannot amount to lawful justification, and is material only to the extent it may reduce culpability.
[25] The Judge did not consider there ought to be any reduction on account of provocation. Although Filihia had attacked Kali’s vehicle smashing the headlight and had challenged him to a fight, those factors were no longer in play. We accept the submissions for the Crown that when Sione and Sioasi first attacked the complainant, any threat to their father was no longer imminent and, on the facts found by the Judge, there was nothing to warrant retaliation with a machete towards an unarmed man. After Filihia’s challenge to Kali, he stepped out of his vehicle, pursued Filihia, twice launched unsuccessful blows against him with the machete and then finally landed a blow which caused serious injury. Thereafter, on the findings by the Judge, Sione and Sioasi continued to attack and punch the complainant.

[26] We agree with the Judge that no reduction in sentence was required on account of any provocation offered by the complainant.

[27] As to the sentence that ought to have been imposed, Mr Edwards submitted that a starting point of 5 years was appropriate and a reduction of up to 18 months should have been allowed for mitigating factors including that at the age of 57 years the appellant was a first offender, he was a person of good character and the plea for mercy from the victim’s family. He submitted the final sentence should have been no more than 5 years with the last 2 years suspended.

[28] Despite a significantly lower sentencing indication in the court below, Mrs Lui submitted that the starting point of five years in the Pouono^[5] case cited by Mr Edwards should be increased to six and a half years to reflect the aggravating factors in the present case, noting the severity of the injury caused which has left a visible permanent scar on the complainant’s head; the group nature of the attack and the multiple strikes aimed at the complainant’s head. From that starting point, twelve months was an appropriate reduction for mitigation leaving a final sentence of five and a half years imprisonment with the last 2 years suspended.

[29] Cases involving the use of a machete to inflict grievous bodily harm are not uncommon in the Kingdom of Tonga. Starting points of 6 and a half years imprisonment have been approved by this Court particularly where there are permanent impairments. For the reasons advanced by Mrs Lui, we consider that a starting point of 6 years was appropriate here and was sufficient to reflect the aggravating factors identified. Counsel were agreed that 12 months should have been allowed for the significant mitigating factors. This would result in a final sentence of 5 years imprisonment. Given the age and previous good character of the appellant we do not see any need for him to serve a period of imprisonment any longer than is sufficient to recognise the seriousness of the attack on the victim. We would suspend the last 3 years of his sentence.

Result

[30] For the reasons given:

(a) The appeal against conviction by the first appellant is dismissed.
(b) The appeal against sentence by the first appellant is allowed.
(c) The sentence imposed on the first appellant is quashed and, in substitution, he is sentenced to five years imprisonment with the last three years of that sentence suspended on the same conditions as were imposed in the Supreme Court.

[31] We record that the appeals by the second and third appellants were abandoned.

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Randerson J

_________________________________
Harrison J

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Dalton J

^[1] Tupou v Rex AC 16 of 2018 and Queen v Mafi CR 32/2013 where starting points of six and a half years were approved or adopted.
^[2] R v Mo’unga [1993] Tonga LR 154.
^[3] At para 81.
^[4] Wairau v R [2015] NZCA 215 at [28] to [35], adopting Hamidzadeh v R [2012] NZCA 550;[2013] 1 NZLR 550 at [59] to [64].
^[5] R v Pouono [2021] TOSC 106