By Linny Folau

Viliami Kioa (43) of Sopu caused serious bodily harm to a woman who was cleaning a neighbour's property, when he assaulted her with a 4ft long aluminium pipe during a verbal altercation, which was witnessed by the victim's young daughter and another woman.

Acting Justice Langi sentenced Kioa on 5 July at the Supreme Court in Nuku’alofa. He received two-years’ imprisonment, which was fully suspended for three years based on various factors, including him being a first time offender.

The court was told that the complainant, Toti Viau lives in Sopu and on the afternoon of 10 May 2023 she, her 12-year-old daughter and a friend were doing some outdoor cleaning at the house of Mele Tatu Fusimalohi.

The accused lives next door to Mele's residence, and had used her property to park some broken-down vehicles. Sometime during the clean up, the complainant walked to the defendant's place and asked him to remove his vehicles from Mele’s property, because Mele had already told him previously to remove them. 

The defendant swore at the complainant and the complainant responded by saying she had been authorised by Mele to be the caretaker of her property. The defendant swore at the complainant again, then a verbal altercation occurred. At this time the complainant's 12-year-old daughter was crying and called out to the defendant because he was swearing at her mother.

The defendant walked towards the complainant with a 4-feet-aluminium pipe, and he used it to hit her on the left side of her torso. She tried to reason with him, but the defendant did not listen and continued to repeatedly hit her with the pipe on her head and back of her neck, while saying, "I will beat you to death so you will know who I am!"

“The complainant used her hands to shield herself from the blows and cried out to the defendant to stop. The complainant's daughter and her friend, Susana, saw everything. The daughter ran home to call her father. When he arrived, the accused had already stopped beating her. The defendant picked up the pieces of the aluminium pipe and left.

“Later that evening, the complainant went to Vaiola Hospital, where the doctor concluded the injuries sustained included: a 1cm long laceration in the middle of the scalp; abrasions and bruising on the lower left ear, forearm, stomach and right wrist and a closed fracture of the right thumb. She filed her complaint with the Police on the same day,” stated the judge.

Use of weapon

The Crown submitted the aggravating factors were the use of a dangerous weapon, the complainant is a woman and was defenceless, and the seriousness of the offending.

The offending inflicted multiple assaults to the complainant's body and stopped only when the aluminium pipe hit the complainant's head.

“The extent of the injury is severe as it involves a fracture to the complainant's thumb and left a scar on her head. The offending occurred in the presence of the complainant's 12-year-old daughter.”

Mitigating factors included his guilty plea (even though it was late) and that he was a first-time offender, stated the Crown.

From the victim’s report after being interviewed by the Prosecution, the complainant stated that she was still living next to the defendant and that since the offending, she had ceased verbal contact with the defendant and his family. The owner of the allotment where the offending took place had sent her authorisation letter for her to look after the land.

“Despite that, she lives in fear and is reluctant to go to the allotment because of the offending. She took up the part-time job of looking after the allotment because she needed the extra money to support her family. She also showed counsel the scar on her head. She would often get random headaches around the scar and at the back of her neck, but she had not consulted a doctor about it yet. These symptoms affect her work at times where she has to take days off work. Other times she would have to work through it because she needs the money to support her family.

“The injury to her right thumb is her dominant hand and is now recovered even though she still feels her thumb is weaker than before especially when she tries to press a button. In addition her 12-year-old daughter is still traumatised by what she saw that day,” stated the Acting Judge.

The Crown submitted a final sentence of two and a half years imprisonment was appropriate. The Crown also submitted the defendant was entitled to some suspension. He initially pled not guilty but later changed to guilty.

Counsel for the defendant filed a mitigation plea. The Defendant has three biological children with his wife and six additional children belonging to relatives that they care for. Their youngest child is only 18 months whom he takes care of while working, as his wife has to work as well. The Defendant also elaborated that his wife was not in good health. The family was dependent on him for work and parental responsibilities.

Low risk

The Acting Judge stated that the defendant shows "low risk" of re-offending for his good character and positive support from his family and community.

“Considering the circumstances of the offence and the unsolved relationship issues of the accused and complainant as his immediate neighbour, there is possible risk of recidivism. Furthermore, the defendant's behaviours post-offence (attempt to reconcile with complainant twice, late to change plea to guilty and victim blaming during the interview) does not indicate genuine remorse of what he did in the offending. He needs to undergo professional help of anger management to counter any risks of relapse.

The defendant showed strong prospect of an effective rehabilitation. It was recommended for the defendant to be given a full suspended sentence under conditions.

“The maximum sentence for serious causing bodily harm is five years imprisonment. There are a number of aggravating factors in this case but one that stands out is the attack on a woman using a pipe/weapon. This attack could have gone terribly wrong given the type of weapon used and very delicate area it had landed on (her head). She was also unarmed and had no way of defending herself.

“A further aggravating factor is that the attack was carried out in front of the victim's young daughter who is to this day, understandably, very traumatized in witnessing her mother being attacked.”

“Taking these factors into account the starting point for sentencing purposes is three years imprisonment. In terms of mitigating factors the Crown submits that the accused has not apologized for his actions. However, the accused informed the probation report that he did go and apologize but it was not accepted by the complainant. He is a first-time offender and pleaded guilty, although late. He will get some reduction for the late guilty plea as he has still saved the court time and resources had he continued with his not guilty plea,” she stated.

“I therefore deduct 12 months for the mitigation factors. This leaves a total sentence of two years. I have considered whether the sentence should be suspended in full or part. He also meets the requirements for the suspension of part or all of his sentence (Mo'unga (1998] Tonga LR 154.). He is a first offender and I have no doubt that he may rehabilitate himself if given the opportunity. I therefore fully suspended the sentence of imprisonment, but I will impose the maximum amount of community service to reflect the seriousness of his offending.”

The Acting judge then ordered that his sentence be fully suspended for three years on conditions, that he must not commit any offences punishable by imprisonment during suspension, live where directed by his Probation Officer and must complete 200 hours of community service. He was also required to report to the Probation Officer.