R v Tafolo [2008] TOLawRp 6; [2008] Tonga LR 23 (15 February 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 143, 180, 182, 191, 219, 220, 226 / 2007

R

v

Tafolo anors

Ford CJ
15 February 2008

Sentencing – riot cases – considerations – seven accused

Seven accused appeared for sentencing having been found guilty by a jury on 5 December 2007 of serious offences arising out of the riots of 16 November 2006. The day of the riots was described in the judgment as the day "that will be remembered forever in Tongan history as the day of infamy and shame. It was the day that all semblance of law and order disappeared and untrammelled anarchy prevailed." It was estimated that probably in excess of 50% of the business centre of Nuku'alofa had been completely destroyed by the riots and the economic impact on the Kingdom was described as "enormous".

Held:

1. The recognised factors the court was to have regard to when sentencing in riot cases includes the importance of looking at the overall level and nature of the resulting damage and destruction; the extent of any premeditation; the numbers of persons involved and, in the context of the overall picture, the specific acts of the individual defendant.

2. Tavake Tafolo was found guilty of riotous assembly contrary to section 74(2) of the Criminal Offences Act (Cap 18) and damaging a machine (a motor vehicle) by rioters and two counts of damage of buildings by rioters contrary to section 77 of the Criminal Offences Act. On the riotous assembly count the accused was sentenced to 15 months imprisonment and on each of the other three counts four years imprisonment. The sentences were concurrent making four years imprisonment in total.

3. Taufa Tafolo was found guilty on one count of riotous assembly and sentenced to 12 months imprisonment with the last six months of the sentence being suspended for two years from the date of her release.

4. Fotu was found guilty on one count of riotous assembly; one count of damage to a building and one count of damage to a motor vehicle. He was sentenced to 15 months imprisonment on the riotous assembly count and four years imprisonment on the other two counts. The sentences were ordered to be concurrent.

5. Fiu was found guilty on one count of riotous assembly and one count of housebreaking contrary to section 173 of the Criminal Offences Act which carries a maximum sentence of 10 years imprisonment. He was sentenced to one years imprisonment on the riotous assembly count and three years imprisonment on the housebreaking count. The sentences were ordered to be concurrent.

6. Ngahe was found guilty on one count of riotous assembly and sentenced to 15 months imprisonment with the last six months being suspended for two years from the date of his release.

7. 'Atuekaho was found guilty on one count of riotous assembly, one count of housebreaking and two counts of destruction of a building by rioters. He was sentenced on the riotous assembly count to 20 months imprisonment and on the housebreaking count was six years imprisonment. On the other two counts he was sentenced to 11 and seven years imprisonment respectively. The sentences were concurrent making 11 years imprisonment in total.

8. Pekipaki was found guilty on one count of riotous assembly, one count of housebreaking and one count of destruction of a building by rioters. He was sentenced on the riotous assembly count to 20 months imprisonment and on the housebreaking count to six years imprisonment. On the destruction of a building by rioters count he was sentenced to 11 years imprisonment. The sentences were ordered to be concurrent making a total sentence of 11 years imprisonment.

Case considered:

R v Najeeb anors [2003] EWCA Criminal 194

Statutes considered:

Criminal Offences Act (Cap 18)

Public Order (Preservation) Act (Cap 38)

Counsel for the Crown: Mr Kefu
Counsel for the accused apart from Ngahe: Mr Kaufusi
Counsel for Ngahe: Mr Pouono

Sentencing Remarks

[1] You are all appearing before me this morning for sentencing having been found guilty by a jury on 5 December last year of serious offences arising out of the riots of 16 November 2006.

[2] In previous sentencing cases I have described that day as one that will be remembered forever in Tonga history as a day of infamy and shame. It was the day that all semblance of law and order disappeared and untrammelled anarchy prevailed.

[3] The evidence was that prior to the day in question, crowds had been assembling daily at Pangai'si'i in support of what was loosely referred to repeatedly in evidence as "change" (meaning political change). The Crown prosecutor accepted that those assemblies had been peaceful and they had not resulted in any arrests.

[4] On 16 November, there was more urgency in the demonstrations at Pangai'si'i because Parliament was about to close for the year. The situation was also aggravated because the crowd had been joined by another group that had marched through the centre of town in opposition to action that had been taken by the authorities to close down the OBN television station.

[5] At around 3 p.m. that day a large group of people left Pangai'si'i and began attacking the Prime Minister's Office and the glass fronted building facing onto Taufa'ahau Road which houses the Cabinet rooms. Estimates of the size of the crowd that took part in that disturbance differed quite significantly but I am satisfied that several hundred people took part in that initial unlawful assembly.

[6] Many of that same crowd then went on to attack the Treasury Building, Parliament and part of the Court building. The evidence was that the situation then rapidly got out of control as the unlawful assembly grew in size and went on a drunken rampage around the town looting, burning and destroying much of the centre of Nuku'alofa.

[7] It was clear from the evidence that the crowd at this stage was quite uncontrollable. The police were grossly outnumbered. They sensibly, therefore, adopted a non-violent reaction. No arrests were made at that stage. I am satisfied that had the police used force to try and control the drunken mob there would have been much bloodshed.

[8] Although estimates again vary, it seems that probably in excess of 50% of the business centre of Nuku'alofa was completely destroyed in the course of that fateful afternoon and evening. The economic impact on the Kingdom was enormous. The damage ran into many millions of pa'anga. The effects of the destruction are still very much evident today with vacant allotments abounding where vibrant businesses once operated.

[9] Those businesses were suddenly brought to a complete standstill at what would have no doubt been a particularly busy period in the buildup to Christmas. They had to be relocated and re-established in other parts of Tongatapu. The army was swiftly brought onto the scene. The centre of the city was sealed off for many weeks and a state of emergency was declared which still applies in part to this day.

[10] Families also suffered with many workers losing their jobs overnight. Some lives were lost. In short, the effects of the riots of 16/11 were catastrophic in every sense of that term. It is against that background that you now appear before me for sentencing.

[11] The task of sentencing in cases arising out of the events of 16/11 is a difficult one. Crown counsel estimated sometime ago that over 500 people will be facing charges in one form or another, many of them multiple charges, arising out of the events of that day. Many of those cases have already been dealt with by the courts. Many more are coming through to this court almost on a daily basis. Yesterday, for example, there were 22 arraignments.

[12] At the same time the court still has to deal with what one might call the usual run of other criminal, civil, land and family cases coming before it. The flow of those cases has not stopped to allow time to deal with the riot cases. Given the pressure on the court's fixture list, I have indicated previously that special consideration is being given to early guilty pleas arising out of the riot cases.

[13] It is, of course, well-established in this jurisdiction that, in general, a discount of the order of one third will be given for a plea of guilty but depending upon the particular circumstances that discount may be higher or lower. That is also the position in England and in most other Commonwealth countries. I simply re-emphasise this point for counsel who may still be in the process of advising clients as to their pleas.

[14] I can also say that, in general, the discount for an early guilty plea in cases arising out of the riots is likely to be even higher than the standard one third. Depending upon the facts of the individual case, the discount may also represent the difference between a custodial and a non-custodial sentence.

[15] The recognised factors the court is to have regard to when sentencing in riot cases have been considered in a number of recent English decisions. I will not refer to them all but I found the decision of the English Court of Criminal Appeal in the case of R v Najeeb anors [2003] EWCA Criminal 194 of particular relevance.

[16] In that case the court acknowledged that all riots differ in origin, numbers involved, aim, duration and effect. The court also stressed the importance of looking at the overall level and nature of the resulting damage and destruction; the extent of any premeditation; the numbers of persons involved and, in the context of the overall picture, the specific acts of the individual defendant.

[17] As I have indicated, the level and nature of the damage and destruction resulting from the riots of 16/11 is simply beyond comprehension. The riots were of the utmost gravity in every sense of that expression and they involved many hundreds of people. I accept that they perhaps were not initially premeditated but this case is a good example of how mob violence and destruction feeds upon itself.

[18] The jury watched DVD footage of some of those events which also captured many of the activities you were individually involved in. In the English case of Najeeb which I referred to a moment ago, the offenders were part of a mob involved in clashes between hundreds of young White and Asian youths in Bradford in England. Police officers were attacked with stones, stolen cars were set alight and many buildings were severely damaged.

[19] The maximum prison sentence in the Public Order Act under which most of the offenders were charged was 10 years. The Court of Appeal said that in a case of riot on such a scale the sentence for a ringleader, after a trial, should be around the maximum of 10 years imprisonment. For an active participant who had used petrol bombs, eight -- 9 years was appropriate. Those present for a significant period of time throwing stones could expect five years imprisonment. The court also said that in cases of serious riot deterrent sentences were required so that good character and personal mitigation factors would carry comparatively little weight.

[20] Against that background, I now turn to consider your individual sentences. I would add that in each case I have taken into account the periods of time you respectively spent in custody during the police processing exercise.

TAVAKE TAFOLO

[21] You were found guilty on one count of riotous assembly which carries a maximum sentence of two years imprisonment, one count of damage of a machine by rioters and two counts of damage of buildings by rioters. The "machine" in question was a government motor vehicle with the license plate PM 30. The two buildings referred to in the indictment were the Ministry of Finance building commonly known as Treasury and this court building. Somewhat ironically the part of the court building you broke the windows of was the jury room. The maximum penalty for each of the last three counts is seven years imprisonment.

[22] I have read the probation report in your case. You are 56 years of age, married with nine children varying in age between 35 and 17 years. You are self-employed running a commercial piggery and you also are involved in commercial fishing. You are president of the Sunday Class at the Mormon Church in Ma'ufanga.

[23] You told the probation officer that on 16/11 all you were doing was drinking with a kava bowl group at Pangai'si'i but you denied any wrongdoing. You said that you simply followed the rioters around out of curiosity and when they got to Molisis supermarket you went home. Well that is also what you told the court but the jury did not believe you. They found that you were guilty on all the counts you were charged with and I have no doubt whatsoever that their verdict was correct.

[24] The Probation Officer recommends a sentence in your case of community work. But quite clearly the Probation Officer simply accepted the description of events which you had relayed to him. He did not have proper regard to the gravity of the offences the jury had found you guilty of. I am not prepared, therefore, to entertain his recommendation of a non-custodial sentence.

[25] As a guide to probation officers generally in relation to 16/11 cases, I can say that it will be inappropriate to recommend a non-custodial sentence for any offender found guilty by a jury after a contested hearing.

[26] At 56 years of age, you were old enough to know better. The evidence was that a police officer who knew you personally did his best to try and stop you causing the damage to the court building but you just carried on breaking the louvre windows.

[27] Another police officer identified you as the man that carried the banner in the group that first marched on the Prime Minister's Office. Then later he saw you again striking motor vehicle PM30 with a stick causing damage before you and others turned the vehicle over on its side. That same officer, Constable Vete, then described how he followed the rioters when they marched on the Treasury building and he saw you attacking the windows of that building with a stick.

[28] You are entitled to credit for having no previous convictions but you are not entitled to credit for a guilty plea.

[29] You are convicted and sentenced as follows:

1. Count 1 (riotous assembly) - 15 months imprisonment

On each of the three other counts you are convicted and sentenced to four years imprisonment.

2. The sentences are concurrent making four years in total.

I have considered the submissions made by Mr Kaufusi on the issue of suspension but you did not co-operate with the authorities and even now you continue to deny the charges and challenge the jury's verdict. I do not consider it to be an appropriate case for any suspension.

TAUFA TAFOLO

[30] You were found guilty on one count of riotous assembly. According to the probation report you married last year and you were expecting your first child next month. You told the court this morning, however, that you had a difficult pregnancy and you miscarried last month. As I said to you when you addressed the court, I am very sorry to hear that.

[31] The evidence against you was given by Constable Mataele. He said that he knew you because you both went to the same Mormon Church. The jury accepted what the Constable told the court, namely, that he saw you in the riotous crowd outside the Treasury building and he saw you throwing something at Treasury. Clearly, the jury was entitled to accept that evidence.

[32] I accept that your offending was not as serious as the others. You are convicted and sentenced to 12 months imprisonment. You do not dispute the findings of the jury and I accept the Probation Officer's observations that you are genuinely remorseful. In the circumstances, I consider a partial suspension appropriate and, accordingly, the last six months of your sentence will be suspended for two years from the date of your release.

MEKILONI FOTU

[33] You were found guilty by the jury on one count of riotous assembly, one count of damage to a building, namely the Prime Minister's Office and one count of damage to motor vehicle PM 30.

[34] You are 31 years of age. You have two children but you are separated from your wife and she has custody of the children. You look after your elderly parents who are not in good health. It is difficult not to feel very sorry for your parents but you should have thought about them before getting involved in the events of 16/11. You look after the family plantation. You seem to be a good community person and I note that you represented Tonga at football in 2004. You have no previous convictions.

[35] You deny any wrongdoing and say that all you did that day was watch and listen to the assembly at Pangai'si'i. The Probation Officer says that you are remorseful because you made a confession to the police after an officer "clouted you over the head and forced you to confess." You seem to blame that confession for your convictions. The problem for you, however, is that your confession to the police was not part of the Crown case against you. The jury never knew about your confession to the police.

[36] The jury found you guilty on the evidence of eyewitnesses who had known you socially. In particular, Constable Latu who had heard you yelling out "smash" and he saw you break a window at the Prime Minister's office. There was also Prison Warden Vi who identified you as one of the people who "smashed" vehicle PM 30 and overturned it.

[37] You are convicted and sentenced as follows:

Count 1: 15 months imprisonment;

On counts 2 and 3 respectively you are sentenced to four years imprisonment.

The sentences are concurrent. You did not co-operate with the authorities and there was no guilty plea so I cannot see any genuine basis for considering a suspended sentence.

NIKOLASI FIU

[38] Nikolasi, you are appearing for sentence having been found guilty by the jury on two counts relating to 16/11. It was one count of riotous assembly and the other was of housebreaking relating to the Chinese shop in Victor Mataele's building. Housebreaking carries a maximum sentence of 10 years imprisonment.

[39] You are 25 years of age and single. Your aunt who has been largely responsible for your upbringing told the Probation Officer that she blames your criminal behaviour on peer pressure. Mr Kaufusi said the same thing this morning in his sentencing submissions. Your aunt has just arranged a job for you at an electrical company where you started working last month.

[40] In mitigation, your counsel said that you were not part of any riotous assembly but that is exactly what the jury found you guilty of and there was ample evidence upon which they could have reached that conclusion.

[41] You are a first-time offender and you are entitled to credit on that account. I also accept that you are remorseful. At least you told the Probation Officer that you accept the jury's verdict which is to your credit.

[42] The main witness who gave evidence against you had known you for approximately 1 year. He said that you had both socialised and drank together. He told the court that he watched you for about 20 minutes throwing cans of corned beef out from inside the Chinese shop. Another witness saw you carrying away looted goods from the same shop. I accept that you had arrived fairly late on the scene that they and your involvement in the riotous assembly was probably not of the same duration as the others but the jury did find that you had been part of a riotous assembly. You are not entitled to credit for a guilty plea.

[43] You are convicted and sentenced to one years imprisonment on Count 1 and three years imprisonment on Count 2. The sentences are concurrent making three years in total.

[44] I have considered the question of part suspension of your sentence. I accept that your offending was not as serious as those involved in damage or destruction of buildings. I'm also influenced by the fact that you accept the jury's verdict and you are genuinely remorseful for your actions. In the circumstances, I am prepared to suspend the last one year of the sentence for a period of two years from the date of your release.

SIUTA NGAHE

[45] You were found guilty by the jury on one count of riotous assembly. You are 31 years of age, married with four children aged between four and nine years. Your wife told the Probation Officer that before 16/11 you used to consume alcohol but since your offending your relationship at home has improved quite dramatically. Mr Pouono confirmed that same observation in his submissions when he made the point that since your offending you have reorganised your life and learned from your mistakes. You are a building contractor by occupation. You have a previous conviction in 2000 for possession of an unlicensed firearm but I accept that that is a different category of offending from the present charge.

[46] The evidence against you came from a police officer who had gone to school with you. You told the jury that you did not enter Pangai'si'i on the day in question and your only involvement was to take part in the march objecting to the closing down of the OBN Television Station. The police officer, however, told the court that he saw you by the band shelter in the middle of Pangaisi'i and later he saw you standing on the ramp outside Molisi's supermarket while it was being looted carrying a carton of beer. The jury clearly disbelieved your version of events and photographs produced by the Crown supported the jury's conclusion.

[47] On the charge of unlawful assembly you are convicted and sentenced to 15 months imprisonment. I have given thought to part suspension. You were not involved in the destruction or damage of any buildings and you appeared to accept the jury's verdict. You are also genuinely remorseful. The last six months of your sentence is, accordingly, suspended for two years from the date of your release meaning that you are required to serve a term of nine months imprisonment.

FIULA 'ATUEKAHO

[48] You were found guilty by the jury on one count of riotous assembly, one count of housebreaking into Molisis and two counts of destruction of a building by rioters -- the first building was Molisi's supermarket and the other was The Island Mobile Shop. The charge of destruction of a building by rioters is an extremely serious one. Up until 1990 it carried a maximum sentence of life imprisonment. It now carries a maximum sentence of 15 years imprisonment.

[49] You are 21 years of age and single. The Probation Officer assesses you as a "high risk" offender. You quit school in Form five. You had a job for 18 months at the Kinikinilau Shopping Centre then you quit and stayed at home although I notice that your father told the Probation Officer that you have recently taken up carpentry work earning $30 per day.

[50] You appear to have had a problem with alcohol since leaving school and you have mixed with what the Probation Officer calls "wrongful peers". You told the Probation Officer that you did not damage any buildings on the day in question but all you did was to go and look at buildings that had already been damaged and looted. Clearly the jury did not believe you. They believed the 27-year-old witness from the Island Mobile Shop who had known you for some five years. She told the court that she went outside her shop at one stage and she heard people saying that the Tonfon building had been smashed and burned. She then saw you and you were yelling out in relation to her shop, "smash that as well -- smash and burn." The witness then described how you threw a rock at the Tonfon sign on her building and then went around to the glass doorway at the side of the building and smashed that with a pipe. Others then entered the shop and it was looted and later burned to the ground.

[51] The evidence given against you in relation to Molisis was given by Constable Finau who had known you because you have both gone to the same college. The Constable said he saw you running into Molisis supermarket with a 20 litre container full of petrol and shortly after that smoke started coming out of the building and there were sounds of explosions coming from inside.

[52] The evidence against you was overwhelming and the jury's decision was clearly correct. You provided the petrol to set fire to Molisis. You had no regard for the consequences of your actions. In terms of the category of offending mentioned in the English case I referred to earlier, I consider that the level of your involvement in the criminal activities on the day in question warrants a sentence close to the maximum prescribed. In England that maximum is 10 years imprisonment -- here the maximum is 15 years imprisonment.

[53] You are convicted and sentenced as follows:

1. Count 1 (riotous assembly) -- 20 months imprisonment;

Count 2 (housebreaking) -- 6 years imprisonment;

Count 3 (destruction of Molisi's Supermarket) -- 11 years imprisonment;

Count 4 (destruction of The Island Mobile Shop) -- 7 years imprisonment.

2. The sentences are concurrent making 11 years in total. Given the seriousness of the offending, there will be no suspension.

TIMOTE PEKIPAKI

[54] You are appearing for sentence having been found guilty by the jury on one count of riotous assembly, one count of housebreaking relating to Molisis and one count of destruction of a building by rioters, namely, Molisi's Supermarket.

[55] You are 35 years old married with six children. You maintain your family by selling fish. It is impossible not to feel very sorry for your wife who told the Probation Officer she was very surprised when the police arrested you because she thought you were selling fish at Havelu all-day on 16/11.

[56] Mr Kaufusi challenged the jury's findings and said in submissions this morning that most of the blame should go on to the three or more persons who were riotously assembled because they provoked you. The jury's findings mean that you yourself were one of the riotously assembled mob and there was ample evidence to support such a conclusion. You, however, refused to accept the jury's findings. You told the Probation Officer that you never entered Molisis on the day in question.

[57] That is also what you told the jury but they disbelieved you and the jury were clearly correct in their verdict. They believed the totally credible evidence given by Police Inspector Sifa Latu. Inspector Latu knew you very well because he lives in Vaini where you are from and he had worked in Vaini for 14 years. He told how he had entered Molisis checking the rooms at the rear of the supermarket to see if any staff were still inside the building. When he came back into the main store area he could see smoke coming from the eastern side of the store.

[58] At that point the inspector said he also saw three people on the western side of the store and he identified you as one of them. He said that he watched as you walked over to a new lounge suite that was for sale and pulled the plastic cover from the sofa. You then called out to one of the others who was standing nearby to "bring the bottle". The inspector said that while he watched he saw you pour petrol from the plastic container onto the sofa and then set it alight with a match.

[59] Inspector Latu then described seeing a square piece of metal like the door of a refrigerator which had been stacked full of toilet rolls and he saw you pour more petrol out of the same container onto the toilet rolls and set them alight. He told you to stop because someone might get burnt but you did not respond. As the inspector turned and ran from the premises he heard an explosion behind him. He told the jury that Molisis had been completely destroyed.

[60] The inspector also told how he later met you over at the market across the road from the burning building and you said to him: "Sifa, I am sorry. I made a mistake. The Devils now gone but I made a mistake."

[61] As I have said, the evidence against you was overwhelming. The police officer was an impressive witness. I have no doubt that you were the one who set fire to Molisi's Supermarket and from there the fire spread.

[62] You are convicted and sentenced as follows:

1. Count 1 (riotous assembly) -- 20 months imprisonment;

Count 2 (housebreaking) -- 6 years imprisonment;

Count 3 (destruction of a building by rioters) -- 11 years imprisonment.

2. The sentences are concurrent. Given the seriousness of the offending it is not an appropriate case for any suspension of penalty.