In sentencing Fifita ‘Ofa (35) to 13-years imprisonment for the death of her 14-year-old daughter last August, and imposing prison sentences on two others, a Supreme Court judge said today in denouncing their conduct, that the repeated beating of the child by her mother and uncle was extremely cruel and a paramount sentencing was considered to protect children and young persons from violence.

Malia Kolo had died at Vaiola Hospital on August 16, 2013 after she was savagely beaten by both her mother and uncle on August 10, 2013. 

“The circumstances of the offending are as sad and tragic as they are concerning,” said Mr Justice Cato.

Fifita and her brother Tomasi ‘Ofa (38) were sentenced for manslaughter, while the de-facto partner of the victim’s father Moala Toumohuni (43) was sentenced on abetment to bodily harm.

Tomasi was sentenced to nine-years imprisonment, while Moala received a two-year sentence for condoning and abetting the beating.

Sentencing

Mr Justice Cato in a lengthy judgement that lasted over two-hours at the Nuku’alofa Supreme Court today, sentenced the mother to 13-years imprisonment which was backdated to start when she was first remanded in custody.

He said the final two-years of her sentence was suspended for three-years on condition that she commit no further crimes punishable by imprisonment for the period of her suspension. She will be placed on probation for two-years, to reside where directed by her probation officer and she is not to have any unsupervised care of children during her period of probation. She is to take up on direction of the probation officer an appropriate course on anger management and child abuse, ordered the judge.

The suspension of the last part of her sentence was due to her early guilty plea, expression of remorse and cooperation with authorities.

Beating

Tomasi's nine-years imprisonment was also backdated to start from when he was first remanded in custody.

The judge suspended the final two-years of his sentence after taking into account that he was a first time offender. "I accept that he also is contrite and had pleaded guilty at the first opportunity and cooperated with authorities. He plainly had become involved only at the request of his sister and probably did not know the extent of the earlier beating. However, being her uncle and like the mother in a position akin to trust, he beat her with weapons most cruelly; a hammer and a hose and these injuries contributed materially to her death."

The condition of his suspended sentence is that he is not to commit any offence punishable by a period of imprisonment during the suspension period. For the first year of his release he is under the direction of the probation office and is directed to undergo a suitable course on anger management and child abuse.

Condoning cruelty

Moala's two-year sentence was also backdated to when she was first remanded in custody.

The judge also suspended the final-year of her sentence after taking note of her early guilty plea and having no previous convictions. She expressed remorse and has several children, the court heard.

The condition of the final-year suspended sentence is that she commits no further offences punishable by an imprisonment period for two-years. She is placed on probation for this period and is directed to attend a course on anger management and child abuse directed by the probation office.

The judge said unlike the mother and brother Moala had pleaded guilty to abetment to cause bodily harm.

“I accept that, although her role was much less than the Ofa’s, she nevertheless was heavily complicit in the offending of the mother. She took no step to persuade Fifita to stop the beating rather she was present and intervened at one point to stop the victim from running away, returning her to her mother for the punishment to continue. She not only condoned the cruelty but actively supported it.”

Tragic

The judge said the victim and her twin were said to have been cared for by her father, who is now in prison, with Moala for much of her childhood after her parents separated when she was young. It was only in mid-2013 that she returned to live with her mother and partner in Kolonga. Fifita 'Ofa has had 10 children and malia was the youngest of four she had with Mr Kolo.

The mother had previous convictions for assaulting two of her children in 2009 involving knives. A magistrate sentenced her to 12-months imprisonment, the court heard for the previous offence.

The victim had run away from home. The mother on August 7, 2013 called the victim’s father and enquired about her because she had ran away from home and asked that she be returned to Kolonga when found.

On the morning of August 10, 2013 the victim’s step-brother and his wife met her at the flea market and took her home to ‘Umusi. Moala called Fifita to say Malia had been found. Fifita then phoned her brother Tomasi and informed him that she had been found. He told her to bring her to Veitongo where he lived.

The mother arrived and started confronting the victim. She beat her with a large stick approximately 2 feet long all over her body. She confronted the victim about a theft that had occurred in Kolonga a few-days earlier and questioned her whereabouts. This beating lasted two hours and it was severe. At one point Moala grabbed Malia when she tried to escape and returned her to her mother to be beaten again.

The judge said afterwards the victim was taken to her uncle's home in Veitiongo. The mother left her there to continue being disciplined.

The uncle for about an hour continued the beating with a piece of watering hose approximately 2-ft long and a wooden hammer. It was only when her hand was badly injured by a blow from the hammer that she stopped hitting her.

"For this child, already having been the victim of gross abuse by her mother, to have received a further beating with weapons from her uncle would have been quite simply terrifying,” Mr Justice Cato said.

"The mother received the victim back at her home on the evening of August 11 and by then the child could not walk. She was left neglected in the living room and without any medical care or attention. Her wounds turned septic. She wore diapers, which were not regularly changed and was observed to be in great pain and had difficulty breathing. She was left in this state from August 11 to the 15th, 2013."

The court heard from the Crown that it was only a neighbour’s involvement that caused her to be admitted to hospital. She was immediately admitted to the intensive care but her health deteriorated to the point where she died on August 16, 2013, said the judge.

Mulitple-injuries

The pathologist’s report detailed numerous abrasions and bruising.

Mr Justice Cato said there were fractures in the bones of both the victim's forearms and the distal fibula on the right leg.

There was a deep laceration seen in the palmar aspect of the left index finger. Injuries on the hands were consistent with defensive injuries suggesting the victim had tried to ward off some of the blows. Some injures were consistent with the use of the hammer or hammerhead. Other abrasions consisted with hose pipe. The cause of death was septicaemic organ failure secondary to multiple infected sharp and blunt injuries.  

The report stated that her death could have been prevented if she had been brought to the hospital earlier for treatment.

“It must have been a terrifying and very painful ordeal for the child. She could have survived had the mother not considered her own position ahead of her daughter's while her uncle also did nothing to assist her,” he said.

Not acceptable

He said the paramount sentencing consideration is to protect children and young persons from violence and their consequences.

“Not only for these reasons are severe sentences inevitable in cases of this kind but also there is a need to deter others as well as a need to denounce such conduct. I add also that there may be a common misconception that beatings associated with the discipline of children constitute an acceptable approach in Tongan life,” he said.

The judge said the Crown Prosecutor Semisi Lutui had rightly in his view, pointed out that it is an unacceptable approach and violence of this kind, in any event he submitted was never part of Tongan culture. Legislation on domestic violence and abuse is reflective he submitted also of a changing attitude to violence in the family setting.

Peau Pifeleti who acted for Fifita and Tomasi pointed to their violent upbringing, which he said, contributed to this offending. He said both had pleaded guilty on his advice and had cooperated with police and I accept that. He also advanced Tongan customary discipline and asked for leniency.

“‘Ofa Pouono for Moala submitted his client was much less involved and I agree although her conduct and being a spectator to the beating and returning the child to her mother for the beating to continue was reprehensible,” he said.

Recommendation

The judge then recommended that the Solicitor-General take all available steps to ensure that the children formerly living with Fifita are in appropriate care and receive whatever counseling is required for their welfare.

“I strongly recommend that Fifita not be permitted unsupervised care of any children in the future,” he said.

The three had pleaded guilty to the charges in March earlier this year.