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:

1. 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.

1. 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. 

1. 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. 

1. 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. 

1. 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.

1. 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 you have been providing support to your partner and your child and, indeed, that you have been their only support for some time, after your partner was involved in a motor vehicle accident.  I accept that you have shown remorse for your actions.  A number of people who provided testimonials on your behalf speak of the fact that you are ashamed by what happened.

1. I also accept that your plea of guilty demonstrates a degree of remorse on your behalf.  I also accept that the plea of guilty had a significant utilitarian value.  Whilst the plea of guilty was not entered at the earliest opportunity I will nevertheless reduce, by approximately 20 percent, the sentence that I would otherwise have imposed. 

1. I take into account the fact that you have no prior convictions. 

1. I take into account the contents of the Pre Sentence Report which has been placed before me.  I note that you have been assessed as suitable for community service and also for periodic detention.

1. I accept that you have excellent prospects for rehabilitation and, indeed, I am satisfied that it is most unlikely that you will reoffend in a similar way in the future.  Nevertheless, general deterrence and punishment are still significant sentencing considerations, albeit that specific deterrence is not. 

1. In my opinion, a sentence of imprisonment, suspended, with a good behaviour order, including a requirement that you complete community service, would be an appropriate disposition with respect to the matter. 

Sentence

1. I record a conviction and you are sentenced to five months’ imprisonment commencing on 15 October this year. That will be suspended forthwith upon you entering into a Good Behaviour Order for a period of 18 months from today, with conditions:

(a)first, that you are to accept the supervision of ACT Corrective Services for that 18 month period or such lesser period as deemed appropriate by your supervising officer, and you are to obey all reasonable directions of officers of ACT Corrective Services whilst you are subject to their supervision; and 

(b)secondly, you are to complete 200 hours of community service within a period of 12 months as directed by ACT Corrective Services. 

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: 24 November 2015