R v Tonga - [2015] ACTSC 365

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Tonga
Citation:	[2015] ACTSC 365
Hearing Date(s):	15, 30 October 2015
DecisionDate:	30 October 2015
Before:	Burns J
Decision:	See [12]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –assault causing grievous bodily harm.
Legislation Cited:	Crimes Act 1900 (ACT) s 25
Parties:	The Queen (Crown) Fonua Tonga (Offender)
Representation:	Counsel Mr D Sahu Khan (Crown) Mr J Sabharwal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co (Offender)
File Number(s):	SCC 216 of 2015

BURNS J:

Fonua Tonga, you appear before me today for sentence with respect to one offence of unlawfully assaulting and causing grievous bodily harm to Jah Coe. This is an offence contrary to s 25 of the Crimes Act 1900 (ACT) and the maximum penalty is five years’ imprisonment.

The circumstances of the offence, briefly put, are that you were playing a rugby match and the victim was a player on the other side. There were some differences between the Jah Coe, the victim, and another player, who was on the same team for which you were playing. You approached the victim and struck him twice in his head. Unfortunately, that caused the victim to suffer a fractured jaw and a broken and displaced nose.

The consequences of those injuries have been quite serious for the victim. He had surgery to his jaw, which required a metal plate to be installed permanently. After the surgery, his jaw was pinned and he was required to wear bands to keep it closed for six weeks. The injury and the treatment caused the victim a lot of pain. He was required to take about a month off work due to the injuries caused by the assault. As a consequence, he had trouble paying his rent and supporting himself in general. He has to have further surgery to his nose, which will require another month off work.

He has also experienced anxiety and depression since the assault. He is no longer able to participate in playing football, which previously had been one of his pastimes, because it reminds him of what happened to him and adds to his depression.

I have before me a number of testimonials that have been provided on your behalf. They all speak of these events as being out of character for you. They speak of you as being well regarded in the community and of you being devoted to your family. You are described as being a caring and hardworking father. I am prepared to accept that this incident occurred as a result of a momentary loss of control but nevertheless it did cause serious injuries to the victim.

I take into account that you are 24 years old and that you have been in Australia for less than three years. You have a partner and a young child. I am told that you plan on marrying at some time. I note that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tonga

Details

AGLC: R v Tonga [2015] ACTSC 365
Case: [2015] ACTSC 365
Decision Date: 30 October 2015

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent, Tonga, against his conviction and sentence. Tonga was charged with assault occasioning actual bodily harm contrary to section 35(1) of the Crimes Act 1900 (NSW). The case was heard in the Court of Criminal Appeal of New South Wales. The trial court had found Tonga guilty and sentenced him to imprisonment for two years and nine months.

The primary legal issue before the court was whether the sentence imposed by the trial court was manifestly excessive. Tonga's counsel argued that the sentence was harsh and did not take into account mitigating factors, including Tonga's otherwise unblemished criminal record and his remorse. The prosecution contended that the sentence was appropriate given the severity of the assault and the need to deter future offences.

The court considered the principles of sentencing as outlined in relevant legislation and case law. It noted that the trial judge had considered the aggravating and mitigating factors and had exercised their discretion in determining the sentence. The court found that the sentence was not manifestly excessive and that the trial judge had appropriately balanced the need for punishment and deterrence with the mitigating factors. The appeal was dismissed, and the original sentence was upheld.

No further orders were made. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

See [12]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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