By Linny Folau
A prisoner, Kali Malupo (57) was unsuccessful in his appeal against his conviction of causing grievous bodily harm, when he struck a 24-year-old man on the head using a machete in a group attack in Manuka, Tongatapu.
However, the time he will spend in prison was reduced from five years to two years.
This was after the Supreme Court in Nuku'alofa allowed his appeal against his sentence of seven years imprisonment, with the last two years suspended. The sentence was reduced to five years, with the last three years suspended, on the same conditions.
Justices Randerson, Harrison and Dalton in their Appeal Court judgment on 20 November stated that Kali and his two sons were each convicted, after a trial before Justice Cooper on charges relating to the serious assault on the complainant, Filihia Li, on 31 October 2022.
The offences were that the victim was struck on the head with a machete by Kali. He was left with an injury on the top of his head, above the forehead where a significant area of his scalp was missing, described in the medical report as an open wound with skull exposure.
Kali was convicted of causing grievous harm while his sons, Sione and Siaosi, were convicted on an alternative charge of common assault. 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 appealed against conviction and sentence, while Sione and Siaosi who have served their sentences abandoned their appeals.
The Appeal judges stated that the brief facts as found by the trial judge was that there was a confrontation between, Filihia, Kali and his two sons. It was 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 trial judge accepted that 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 ground 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.
The judge then 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.
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, they stated.
Moreover, there were two key reasons given by the trial 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 as 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 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 the defence witnesses.
“It was common ground that Filihia's conduct triggered the confrontation that occurred. It was 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. Given the findings of the judge we are satisfied that the events are properly described as a group attack,” the Appeal Court judges stated.
“We conclude that the appeal against conviction by Kali must be dismissed.”
Sentence reduced
Meanwhile, the Appeal judges stated that in the trial judge's sentencing remarks, he 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.
Intention to kill
Justice Cooper also adopted a starting point of six and a half years imprisonment citing comparable sentences. 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. He then reduced that figure by six months to reflect the mitigating factors, arriving at an end sentence of seven years imprisonment.
He 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, the Appeal judges stated.
"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. We agree with the judge that no reduction in sentence was required on account of any provocation offered by the complainant."
They added that as to the sentence that ought to have been imposed, Mr Edwards for appellant submitted that a starting point of five 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 five years with the last two years suspended.
Meanwhile, cases involving the use of a machete to inflict grievous bodily harm are not uncommon in Tonga. Starting points of six and a half years imprisonment have been approved by this Court particularly where there are permanent impairments.
The appeal against conviction by the first appellant was then dismissed. While the appeal against sentence Kali was allowed.
The Appeal judges then quashed Kali's first sentence and replaced it with five years imprisonment, with the last three years suspended on the same conditions imposed in the Supreme Court.
