By Linny Folau
Timote Kaufusi is serving 12 months imprisonment for causing serious bodily harm to another man in a group attack.
Justice Garlick sentenced him on 19 August at the Supreme Court in Nuku’alofa, after pleaded guilty to the single charge in June.
The court heard the offending was on 2 August 2024, when the defendant as part of a joint enterprise went with two other persons to the home address of the complainant, ‘Alifeleti Kailea during the hours of darkness.
“The defendant knew well that he was going to that address to confront and exact revenge on the complainant by seriously assaulting him. The defendant knew that the other people in the joint enterprise had weapons and that they intended to use them in an attack on the complainant.
“The defendant's case was that his role was to ensure that the complainant did not run off when he saw what was about to happen to him. The defendant accepted that he did restrain the defendant when he attempted to run away from his attackers, thereby allowing one of the others to seriously injure the complainant. In those circumstances, the defendant must be sentenced on the same basis as the other attackers as a knowing participant in a joint enterprise to attack and seriously injure the complainant, the judge stated.
“This attack was a second attack on the complainant on the same day; however, I have disregarded that fact, as there is no evidence that the defendant was involved in that earlier attack. The defendant admits that he restrained the complainant when he attempted to run from the scene of the attack. While the defendant restrained the complainant, one of the others (Tupou) attacked the complainant with scissors.”
The attack caused injuries to the complainant including a hematoma to the posterior of the scalp; a laceration between the second and third finger; a superficial laceration to the fifth finger. While it was submitted by the defence that the defendant's conduct should be categorized as the lesser offence of common assault, the judge did not accept that submission, and sentenced him for the more serious offence, he had pleaded guilty to.
The judge did so because the defendant was a party to the joint criminal enterprise to attack the complainant. He also observed that it was a matter of good fortune that the complainant was not injured more seriously. The maximum sentence for the offence of causing serious bodily harm is imprisonment for five years.
Meanwhile, the Crown in its sentencing submissions stated the aggravating features was that the offending conduct took place at night, at around 9:00 pm; the attack was completely unprovoked, and the defendant had previous conviction for serious offences.
“This was a group attack on the complainant, and the defendant knowingly joined the criminal enterprise, knowing its purpose.”
Mitigation put forth by the defence was that the defendant pleaded guilty at the earliest opportunity and cooperated with the police in their investigation of the offence, among other submissions.
“This was a deliberate joint enterprise to exact revenge upon the complainant for an incident that had occurred previously. The defendant knew that the other participants in the joint enterprise were armed with weapons. His role was to detain and restrain the complainant, whilst the others attacked him with scissors. Accordingly, for this offence, the judge took a starting point as being a sentence of imprisonment for a period of 30 months."
However, taking into account the mitigating factors in this case, principally the defendant's early plea of guilty and his cooperation with the police in the investigation, he imposed a sentence of 20 months' imprisonment.
The Crown accepted that it was appropriate in this case for the court to consider suspending part of the sentence of imprisonment. The case of Mo'unga remained the most important case on this subject, and gave clear guidance as to the approach that the court should adopt. The overriding question that should be considered by the sentencing Court is the likelihood of rehabilitation of the defendant, he added.
“I am satisfied that in this case there is a high probability that the defendant will be rehabilitated during his time in custody, and that the imposition of a partially suspended sentence will assist that process of rehabilitation.”
Accordingly, the judge reached the conclusion that it was just and proportionate that the final eight months of the sentence of the imprisonment should be suspended for a period of two years on conditions. This includes not committing any offence punishable with imprisonment during the operational period of the suspended sentence, among others.
The defendant was then sentenced to 20 months imprisonment with the final eight months suspended for two years on conditions. He is now serving 12 months in prison.
