By Linny Folau

'Atunaisa Kali (48) was sentenced to two-years and eight-months imprisonment for causing grievous bodily harm to his son in law at Popua. 

Lord Chief Justice Whitten KC sentenced him on 28 August at the Supreme Court in Nuku’alofa, after pleading guilty to the offence. The offending occured on 11 March this year, where Feleti Hafoka and his wife Halina live in Popua, in a separate house on the defendant’s allotment. 

The Chief Justice said the defendant is Halina’s father and on that afternoon, Halina left the residence. 

She did not come home that night. The next day, Feleti was cooking food in their backyard when he noticed Halina at her parent's house. He asked her where she had been, which led to an argument. As Feleti turned to leave the house, the defendant attacked him with a short samurai sword. Feleti raised his left hand to defend himself and the blade slashed his wrist, resulting in a deep laceration, fracture to his hamate bone, and damage to one of his extensor tendons. He was taken to the hospital where he underwent  surgery. 

The defendant was arrested and charged and admitted to the offending. While a few days later after being admitted, Feleti was discharged from hospital but his injuries took about six-months to fully heal, with significant scarring. No other residual deficit has been reported. 

The defendant also had previous convictions when in 1994, he was convicted in the Magistrate’s Court of bodily harm and assault, and sentenced, relevantly to three-months imprisonment, fully suspended for three-years.

“Prosecution submitted on this case that the offending was aggravated by the severity of the injury to the victim, the use of a dangerous weapon, the victim was the defendant’s son in law and the attack was unprovoked. By way of mitigation, the defendant cooperated with Police, pleaded guilty at the earliest opportunity and he has been free of crime for over two decades,” he said.

“The seriousness with which the Courts have, and must, view offences involving serious injury inflicted by edged weapons, must be applied here even though the offending involved members of the same extended family and not withstanding the likely suffering to the victim’s wife and other members of the family living on the same allotment by the incarceration of her father.”

He noted that the offending was not as serious as the comparable sentences referred to by the Crown nor in other recent decisions such as R v Pouono [2021] TOSC 106.

“Here, I note in particular, that while the victim’s injuries took quite a while to heal, he has not been left with any known permanent loss of function or lasting pain. Had that been otherwise, the starting point would have been significantly higher. Therefore, I agree with the Prosecution's submission that the appropriate starting point is four-years imprisonment.

“For the defendant’s early guilty plea, thereby sparing the victim and his wife (among others) having to give evidence at a trial, and his long period free of crime, I am prepared to allow a full discount of one third, resulting in a sentence of 32 months imprisonment."

Despite the defendant’s positive attributes and the likely impacts on his family by his incarceration, the Chief Justice did not consider that full suspension was warranted or legally supportable. 

"The approach consistently taken by the Courts when dealing with offending involving machetes and similar weapons reflects the expectations, and need for protection, of the community as well as Parliament’s directive in legislating a maximum penalty of 10 years imprisonment. 

“On the other hand, the defendant’s personal circumstances as conveyed by the presentence report provide confidence that he is likely to take the opportunity offered by a partly suspended sentence to rehabilitate himself."

He  sentenced the defendant to two-years and eight-months (or 32 months) imprisonment. The final 16-months of the sentence was suspended for two-years on conditions. This means that the defendant is now serving 16-months in prison.

Failure to comply with those conditions may result in the suspension being rescinded and the defendant being required to serve the balance of his prison term, he said.