By Linny Folau

Viliami Kioa (43) from Sopu caused serious bodily harm to a woman who was cleaning the neighbour’s property when he attacked her with a four-foot aluminium pipe during a verbal altercation witnessed by the victim’s young daughter and another woman.

Acting Judge Langi sentenced Kioa at the High Court in Nuku’alofa on July 5. He was given a two-year prison sentence, which was suspended in full for three years based on several factors, including the fact that he was a first-time offender.

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

The defendant lives next door to Mele’s residence and had been using her property to park a number of broken down vehicles. Somewhere during the cleanup, the complainant walked up to the defendant’s location and asked him to remove his vehicles from Mele’s property, as Mele had previously told him to remove them.

The suspect cursed the complainant and the complainant replied that she had been authorized by Mele to take care of her property. The suspect cursed the complainant again and a verbal altercation ensued. At that point, the complainant’s 12-year-old daughter cried and shouted at the suspect for cursing her mother.

The defendant walked up to the plaintiff with a four-foot aluminum pipe and struck her with it on the left side of her torso. She tried to reason with him, but the defendant did not listen and continued to strike her repeatedly with the pipe in the head and neck, saying, “I’m going to kill you so you know who I am!”

“The plaintiff used her hands to protect herself from the blows and shouted at the defendant to stop. The plaintiff’s daughter and her friend Susana saw everything. The daughter ran home to call her father. When he arrived, the defendant had already stopped hitting her. The defendant picked up the pieces of the aluminum pipe and left.

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

Use of weapon

The Crown argued that the aggravating factors were the use of a dangerous weapon, that the complainant is a woman and cannot defend herself, and that the seriousness of the offence was great.

The plaintiff was beaten several times and only stopped when the aluminum pipe hit the plaintiff’s head.

“The extent of the injury is serious, as it involves a fracture to the complainant’s thumb and a scar on her head. The offence took place in the presence of the complainant’s 12-year-old daughter.”

Mitigating circumstances included his admission of guilt (despite being late) and the fact that he was a first offender, the Public Prosecution Service said.

From the victim’s report after questioning by the Public Prosecutor, the complainant stated that she still lived next door to the suspect and that she had not had any verbal contact with the suspect or his family since the offense. The owner of the allotment where the offense took place had sent her a letter of authorization to take care of the land.

“Despite this, she lives in fear and does not dare to go to the allotment garden because of the violation. She took on the part-time job to tend to the vegetable garden because she needed the extra money to support her family. She also gave advice about the scar on her head. She often got random headaches around the scar and on her neck, but she had not yet consulted a doctor about it. These symptoms sometimes affect her work, forcing her to take days off. Other times, she has had to work through it because she needs the money to support her family.

“The injury to her right thumb is her dominant hand and has now healed, although she still feels that her thumb is weaker than before, especially when she tries to press a button. In addition, her 12-year-old daughter is still traumatized by what she witnessed that day,” the acting judge said.

The Crown argued that a final sentence of two and a half years in prison was appropriate. The Crown also argued that the defendant was entitled to some suspension. He initially pleaded not guilty, but later changed his position to guilty.

The suspect’s counsel has filed a request for mitigation. The defendant has three biological children with his wife and six additional children from relatives that he cares for. Their youngest child is only 18 months old and he cares for them while working, as his wife also has to work. The defendant also indicated 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 suspect presents a “low risk” of reoffending due to his good character and the positive support of his family and community.

“Given the circumstances of the offence and the unresolved relationship problems between the suspect and the complainant as his immediate neighbour, there is a possible risk of recidivism. Furthermore, the defendant’s post-offense behavior (trying twice to make amends with the prosecutor, not being able to change his plea to guilty in time, and blaming the victim during questioning) does not demonstrate genuine remorse for what he did during the offense. He needs professional help with anger management to counteract any potential risk of relapse.

The defendant showed a strong prospect of effective rehabilitation. It was recommended that the defendant receive a fully conditional sentence.

“The maximum penalty for grievous bodily harm is five years in prison. There are a number of aggravating factors in this case, but one that stands out is the attack on a woman with a pipe/gun. This attack could have gone horribly wrong given the type of weapon used and the very vulnerable area it hit (her head). She was also unarmed and had no way to defend herself.

“An additional aggravating factor is that the attack was carried out in front of the victim’s young daughter, who to this day, understandably, remains deeply traumatised by witnessing the attack on her mother.”

“Taking these factors into account, the starting point for sentencing is three years imprisonment. In terms of mitigating circumstances, the Crown submits that the defendant has not apologised for his actions. However, the defendant has informed the probation service that he has apologised but this was not accepted by the complainant. He is a first-time offender and has pleaded guilty, albeit late. He will receive some relief for the late guilty plea, as he would still have saved the court time and resources if he had continued with his not guilty plea,” she said.

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

The acting judge subsequently ordered that his sentence be suspended in full for a period of three years, on condition that he commit no offences punishable by a prison sentence during the suspension, that he be allowed to live where his probation officer directs him to do so, and that he perform 200 hours of community service. He also had to report to the probation officer.