Father and sons jailed for injuring young man in group attack [1]
Tuesday, October 24, 2023 - 16:07
From the Courts, by Linny Folau
Kali Malupo (57) who was convicted of grievous bodily harm, when he struck a 24-year-old man on the head using a machete at Manuka on eastern Tongatapu, was sentenced to six and a half-years imprisonment, while his two sons received a lesser jail sentence for common assault in a group attack on the victim.
Justice Cooper sentenced them on 19 October at the Supreme Court in Nuku’alofa. This was after a trial convicted them of the offences committed against Filihai Li last month.
Although, the sons Sione and Siaosi Malupo were found not guilty of grievous bodily harm, they were both found guilty of the alternative counts of common assault.
Kali, the father, was sentenced to six and half-years’ imprisonment, with the last two-years suspended for two-years on conditions. While, Sione and Siaosi were each sentenced to six-months' imprisonment, with the last two-months suspended for one-year on conditions.
Each defendant also had his sentence back dated to 31 August 2023, when they were first remanded into custody.
Group attack
The judge said the offences arose out the events of the night of 31 October 2022, when 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.
"There had been a confrontation between Filihai Li, who was drunk and standing in the road, and Kali Malupo, who sat in his vehicle. Kali had moved his vehicle towards Filihai Li and Filihai Li had punched and smashed a front head light. Kali Malupo then produced a machete before leaving his vehicle and striking Filihai Li with it, causing the injury. Filihai Li was unarmed and there is no suggestion he ever had a weapon or any person thought he may have had one.
“In addition, the version of events that the defendants put forward to probation in their reports is the same as they did at trial. I had already concluded those accounts are entirely untrue for the detailed reasons given in my judgement."
The judge found that in relation to Kali, there were three strikes at Filihai Li, who was standing with [his father] Melikiola Li. They both dodged first two and third connected and caused the grievous injury.
He also found that the attack by Kali Malupo consisted first in his showing the machete out the window of his car in retaliation to the smashing of his headlight. Filihai Li approached the vehicle but not so as far as the driver's side window. He fell back at the sight of the machete. Kali Malupo left his car armed with the machete, pursuing Filihai Li into the grounds of his father's 'api then wounding him just by the pole of the car port (tackled Kali Malupo at the critical moment. The blow aimed squarely at Filihai Li 's head he partly diverted by taking this action, though not enough to escape the injury suffered.)
The judge accepted Melikiola’s account that had he not done this, Filiahi Li’s head would have been, in his words, split in two.
As for Sione and Siaosi, the judge found that Siaosi came from the vehicle his father was driving and attacked Filihai Li, punching him. If Siaosi Malupo was not in the car with the rest of his family, he was very quickly at the scene and attacking Filihai Li.
“Neither Sione Malupo and Siaosi Malupo acted to protect their father nor in defence of property; simply out of frantic vengeance. Their attacks, both in tandem, as they were and lasting as long as they did, revealed levels of anger and violence going far beyond and possible argument of self-defence. I am also quite sure they continued to attack Filihai Li, after he was grievously injured.”
“At the same time, this was strong evidence of their state of mind from the start; that they were determined upon violently dealing with Filihai Li for violence's sake and did so. I note that there have been no specific injuries attributed to either Sione or Siaosi Malupo. It was a sustained assault, punching with fists, starting before Filihai Li received his head injury and continuing after that when both defendants attacked the victim in his 'api and at a time he was in desperate need of medical care,” he said.
No reduction for provocation
The judge said in the instant case the victim was rowdy, drunk and had attacked the defendant's car, smashing a headlight, and on the facts as he found them to be, both Sione and Siaosi then attacked the victim, punching him. Then Kali Malupo attacked with a machete, swinging twice aiming directly at the head of the victim. Before a third blow caused the wound to his head.
“He therefore attacked Filihai Li after his two sons were attacking him. I have found that none of them did so through fear of an attack by Filihai Li. Both Sione and Siaosi carried on attacking Filihai Li after he had received the wound to his head.
“On careful analysis, Sione and Siaosi Malupo attacked Filihai Li, but it was not their vehicle that was damaged, so any potential provocation was not directly related to their property. Both attacked over a sustained period of time and also Filihai Li had been significantly injured. Mr. Kali Malupo attacked Filihai Li when he was already being attacked by his sons,” he said.
"All three attacked Filihai Li forcing him off the road and on to his father's property and continued to attack him there. For these reasons, I do not consider there ought to be any reduction in the sentences for any defendant, on the basis of any argument as to provocation."
Sentencing reflecting intention to kill
For Kali, the judge set a starting point of six and a half-years, which he increased to seven and a half-years to reflect that it was a group attack, the clear intention was to kill Filihai Li and the repeated attempts to do so.
“For his good character and for his work for his village and community I reduce that by six-months. It would have been more, but for his obvious lack of remorse, as evident from the dishonest version of events he clings to. I have considered his previous good character and that he is likely to rehabilitate. Accordingly, the last two years of his seven-year sentence will be suspended for two-years on conditions,” he ordered.
For the sons, a starting point of six-months each, which he increased to nine-months to reflect the fact that it was sustained assault and carried on after the victim received his head wound and was trying to seek refuge and treatment. This was then reduced by three-months for their previous good character and remorse. Accordingly, the last two-months of their sentences were suspended for one-year, on conditions.
This then resulted in six and a half-years imprisonment for Kali, with the last two-years suspended on conditions.
The sons were each sentenced to six-months' imprisonment, the last two months suspended for one-year on conditions.