Rex v Kafalava [2006] TOSC 19; CR 226-9-2005 (26 May 2006)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR.226-9/05; CR.301-/05; CR.297-300/05;
CR.04/06; CR.09/06; CR.263/05; CR.262/05; CR.256/05;
CR.10/06; CR14-15/06; CR.190-191/04; CR.192-3/04; CR.68-71/05; CR.168-9/04; CR.36/06; CR27/06; CR.38/06; CR.29/06; CR.34/05; CR.251-3/05; CR.105/06; CR.249/05;CR.266/05; CR.267/05. CR.102-4/06; CR.100/06; CR.55-56/05; CR.72/05; CR.250/05;
CR.122/06; CR.121/06; CR.39/2006

REX

-V-

SIONE KAFALAVA
JOE WHITE MASIMA
TAULUA TA’UFO’OU
FELETI PAONGO
TUITU’U TA’UFO’OU
SIAOSI LATU

BEFORE THE HON. JUSTICE FORD

Counsel: Ms Mele Tupou for the Crown and Mele Mangisi for Masima and Paongo

Dates of Sentencing: 26 May 2006

SENTENCING REMARKS

Introduction

[1] It is common knowledge that throughout Tonga over the last year or two there have been more housebreakings, thefts, robberies and offences of that nature than ever before. Some of the robberies have involved violence. You will hear people talking about housebreaking offences in shops, restaurants, clubs and offices and wherever else members of the public assemble. It has been a source of great suffering for the innocent victims.

[2] Housebreaking is a despicable offence. It violates peoples' right to privacy in their own homes. It is an offence which is particularly abhorrent to this country because traditionally one of the great attractions of life in the Kingdom, as I understand it, is that homes have been open and you would never see the type of security fencing one associates with violent cities such as Johannesburg. Sadly, that image is now starting to change as people have become more and more aware in recent times of the need to secure their property.

[3] The offence of robbery with violence is an even more serious crime. The police do their best to apprehend the criminals. The courts do their best to try and send the message to budding criminals that offending of this nature will not be tolerated in any form. But still the offending continues and it has been on the increase in recent years. The public have a right to be protected from house breakers and from those who use any form of violence or force in the commission of a crime.

[4] Over a period of some 19 months or so between July 2004 and February of this year, you six young men at different times have amassed collectively a total of 219 criminal charges against you. It is in relation to those charges that you appear before me for sentencing this morning. Even though there are others who have not yet been apprehended, I have no doubt that you six offenders have been the ringleaders of the housebreaking scourge that has plagued Tongatapu over the period I am referring to.

[5] Even with your guilty pleas, the task of collating all the files and relevant documentation for sentencing purposes has not been an easy one. I can imagine how much more difficult and time-consuming it must have been for the police officers to have to investigate each of the 219 complaints and then for the police prosecutors and Crown counsel to have to prosecute the claims before the courts.

[6] These general observations are directed at all of you. I do not know the exact nature of your association with each other in the past but many of the crimes were a joint effort between some, if not all of you, and that is why a number of the criminal acts you have been charged with are counts of conspiracy and abetment. I do not know what motivated you to behave in the manner you did. I do not know why you all seem to have suddenly developed this great grudge against society that made you want to live the lives of full-time criminals. You seem to have fed off each other like leeches and thrived on your despicable diet of criminal activity.

[7] From reading the Crown's summaries of fact and the probation reports, I get the clear impression that some of you (and here I am referring to Kafalava and Masima in particular) simply cannot help yourselves. You cannot keep out of trouble. You are what they call habitual criminals. Well, the court has a duty to protect society from people like you. In the present context, that duty can only be given effect to by sending you to prison for a long time. Hopefully, in the prison environment and with help from visiting church people, you will eventually mature enough to see the error of your ways. Sadly, I perceive that that day is still a long way off.

[8] I now want to address some remarks to each of you individually. In imposing sentence I take into account in each case your guilty pleas and the period of time you have been in custody awaiting sentence. I begin by addressing Sione Kafalava. What I have to say to him about some of the specific charges has equal application, of course, to his co-accused.

Sione Kafalava

[9] You are only 22 years of age. According to the probation report, you are the third youngest of 10 children. Your father migrated to New Zealand in 1997 and ceased sending remittances or having any contact with your mother or family in 1999. Your father no doubt has a lot to answer for, having deserted his wife and 10 children and it may not be without significance that you began your criminal career around the time that he left Tonga. Nevertheless, the breakup in your family can be no excuse for your life of crime.

[10] You told the Probation Officer that you commenced carrying out housebreaking and theft crimes when you were only 13 years of age but you were never found out by the police. You told him that you continued committing housebreaking and theft offences throughout 1997 and 1998 and then in 1999 you were apprehended and sentenced by former Chief Justice Ward to six years imprisonment. You also told the Probation Officer that since you were 13 years of age, you knew that what you were doing was wrong but you had no choice because, as you expressed it, serious crime had become your only way of life. It is a sad day when the court hears a statement like that from such a young person.

[11] You are not entitled to any credit for having a good record because you have previous convictions which to your perverse way of thinking are probably something you are quite proud of and, as you freely acknowledged to the Probation Officer, you appear to have committed numerous other crimes which you have managed to get away with. As the Probation Officer correctly concludes there is really nothing they can be said in your favour and for the safety of the community at large you now need to be locked away for a long time.

[12] You show no remorse, apart from having been caught. Many of your most recent offences, I note, were committed whilst you were on bail. I have no doubt that you're thinking at the moment is that you can't wait to carry out the sentence which I am about to impose so that you will then be free again to commit more robbery and housebreaking offences. Well, hopefully, with the passage of time, you may begin to see the error of your ways but, as I said before, that eventuality is still a long way off. Your only redeeming feature is that you have had the good sense to plead guilty to all the charges and you will receive credit for your guilty pleas.

[13] You are facing a great variety of charges. I see little point in going through them all individually but I will single out one or two of your offences for specific mention. You have pleaded guilty overall to 60 charges including 14 counts of housebreaking. The 14 housebreaking charges seem to follow a similar pattern. Probably one of the most despicable of them is the offence committed on the night of 19 July 2005.

[14] The victim that particular night was your elderly neighbour, Mrs Niumeitolu. You and your co-accused Paongo entered her home and stole her valuable Tongan artefacts worth over $32,000. Mrs Niumeitolu lived on her own. She was 90 years of age. I asked the Probation Officer to provide the court with a victim impact report in relation to this particular incident.

[15] The Probation Officer advised that the 90-year-old complainant is an invalid. She cannot stand or walk. On the night you invaded the privacy of her home she was awake but she could only look on in horror as you went about stealing the Tongan artefacts which she had collected over her long lifetime. Many of these valuable artefacts had been presented to her as gifts by the late Queen Salote. What a terribly sad and miserable experience it must have been for that old lady to have lost all those priceless personal treasures that would have given her so much pleasure in the twilight of her years.

[16] The Probation Officer reported that no apology has ever made to the complainant. The Probation Officer described how the old lady now feels insecure and frightened. She told him that she hoped that she would never see you or your co-accused again because it would only remind her of that sad moment in her life that she will never forget.

[17] The maximum sentence for housebreaking is 10 years imprisonment. I regard this particular criminal act relating to the old lady as one of the most ruthless and cowardly cases of housebreaking I have come across. I am sure that mentally, the home invasion the victim experienced during the late hours of that fateful night will have a devastating effect on her for the rest of her life. She was your neighbour. That made no difference. It shows what a cold and ruthless person you have descended to.

[18] Among the other charges you face are two counts of robbery contrary to section 154 of the Criminal Offences Act. The maximum sentence for robbery is 10 years imprisonment. In the first count of robbery which is count 2 in indictment CR 226/05, you used a firearm, a .22 rifle to carry out a robbery of the Fung Shing Wholesale Store at Kapeta. You pointed the rifle at the Chinese man in charge of the store and then you then hit him over the side of the face with the butt of the gun.

[19] The second charge of robbery (count 33 on the same indictment) involved a violent unprovoked attack on Paul Johansson, the proprietor of Friends Cafe on the night of 2 August 2005. On that occasion, which was a joint enterprise involving Masima and Taulua Ta'ufo'ou, you carefully planned the robbery of Paul Johansson of his takings from Friends Cafe. You did your homework carefully over the month leading up to the attack. You checked out what time the cafe normally closed and you monitored Johansson's movements after he locked up the shop each night. You worked out that he would normally arrive home with the days takings between 11 p.m. and 12 midnight.

[20] On the day in question which was a Friday night, after checking out the cafe, you staked out Johansson's home in Sopu and waited for his arrival with the days takings. Jointly, you then carried out a violent attack on Johansson using a rock. The victim was knocked to the ground and you then used the rock to smash the back window screen and the driver's window screen of his vehicle before grabbing and making off with Mr Johansson's briefcase and mobile phone. Mr Johansson's injuries were described in the summary of facts as 'serious and critical'.

[21] Why you and your co-accused were not charged with armed robbery in respect of those two offences instead of simply robbery, I do not know. Armed robbery, which is an offence first introduced into the criminal law at the end of 1999, carries a maximum sentence of 20 years imprisonment. I suppose that one could argue about whether a rock could properly be described as a 'weapon' but it certainly would appear to have been used as such on this occasion. There could be no argument, however, that the incident involving the .22 rifle would have supported a charge of 'armed robbery'.

[22] For sentencing purposes, however, I need to proceed on the basis that you were charged with robbery with violence rather than armed robbery and, as I have already mentioned, the maximum penalty for robbery with violence is 10 years imprisonment. In both robbery cases, violence was used and the facts show a good deal of careful planning. In the robbery of the Fung Shing wholesale store, for example, you, Masima and Paongo hired a rental car and then stole the registration plate from another vehicle and affixed it to the rental car.

[23] The court ordered a victim impact report on 39-year-old Paul Johansson. A medical report was also provided which showed that considerable force must have been applied when he was struck on the face with the rock. Mr Johansson suffered extensive lacerations, bruising and bleeding. He required surgery to remedy some of his nasal and airway problems. He has been told that his left eye has been permanently affected and in time the injuries may cause him to lose the permanent sight of that eye.

Sentencing

[24] In relation to the housebreaking charge involving 90-year-old Mrs Niumeitolu (count 13 on indictment CR 226/05) you are sentenced to six years imprisonment. On each of the remaining 13 counts of housebreaking (counts 4, 9, 27 on CR 226/05; count 1 on CR 190/04; count 1 on CR 192/04; count 1 on CR 68/05; counts 1 and 3 on CR 169/04; count 1 on CR 100/06; count 1 on CR 55/05; count 1 on CR 76/05 and counts 5 and 4 on CR 261/06 you are convicted and sentenced to five years imprisonment.

[25] On the conspiracy to housebreaking charges: (count 12 on CR 226/05) you are sentenced to four years imprisonment; on each of the four remaining conspiracy to housebreaking charges (counts 8, 13, 20 and 26 on CR 226/05) you are sentenced to three years imprisonment.

[26] On the one abetment to housebreaking charge (count 21 on CR 226/05) you are sentenced to three years imprisonment.

[27] The maximum sentence for theft is two years imprisonment if the value of the thing stolen does not exceed $500 but if the value of the thing stolen exceeds $500 then the maximum sentence is seven years imprisonment.

[28] In relation to the theft of the valuable Tongan artefacts from the old lady (count 15 on CR226/05) you are sentenced to four years imprisonment. On the remaining 13 theft counts you are sentenced as follows: counts 6 and 11 on indictment CR 226/05, count 2 on indictment CR 190/04, count 2 on indictment CR 192/04, count 2 on indictment CR 68/05, count 2 on indictment CR 55/05 and count 6 on indictment CR 261/06 -- 6 months imprisonment on each. On counts 25 and 29 on indictment CR 226/05 and counts 2 and 4 on indictment CR 169/04 -- 12 months imprisonment on each. On count 2 on indictment CR 76/05 -- 2 years imprisonment. On count 2 on indictment CR 100/06 (where the amount involved was over $20,000) -- 3 years imprisonment.

[29] On the conspiracy to theft charge involving the old lady (count 14 on CR 226/05) -- 4 years imprisonment. On the remaining conspiracy to theft charges: counts 5, 7, 10, 22 on CR 226/05 -- 6 months imprisonment each; counts 18, 24, 28, 37 -- 12 months imprisonment each.

[30] On the three abetment to theft counts (19, 23 and 38 on CR 226/05) -- 1 year imprisonment each.

[31] I come now to the two robbery charges I have already discussed. I have had regard to the remarks on sentencing by the Court of Appeal in Fifita v R [2000] Tonga LR 289 where a sentence of three years imprisonment was upheld for robbery. I consider the offending in the present case to be more serious. The facts, as I have already mentioned, showed a considerable degree of planning and a high degree of ruthlessness. The courts need to get the message across to criminals like yourself that robbery with violence will not be tolerated in any form and there is a clear need for a strong deterrent message.

[32] On the two robbery charges (counts 2 and 33 on CR 226/05) -- 7 years imprisonment on each; on each of the four conspiracy to robbery counts (counts 1, 16, 32 and 30 on CR 226/05) -- 4 years imprisonment; on the two abetment to robbery charges (counts 17 and 31 on CR 226/05) -- 4 years imprisonment on each.

[33] On the grievous bodily harm charge (count 35 on CR 226/05) relating to the injuries to Paul Johansson -- 6 years imprisonment; on the conspiracy to grievous bodily harm (count 34 on CR 226/05) -- 4 years imprisonment.

[34] On the charge of causing wilful damage to things, (count 36 on CR 226/05) -- 1 years imprisonment; on the charge of causing wilful damage to a building (count 1 on CR 190/04)-- 4 months imprisonment.

[35] The charge of attempted armed robbery (count 1 on CR 121/06) relates to your unsuccessful attempted robbery of the Chinese store at Kolomotu'a on 24 March 2006 when you were armed with a machete -- 4 years imprisonment. The charge of bodily harm (count 3 on CR 121/06) relates to your attack on the Chinese lady in the store at Kolomotu'a where you struck her once with the machete on her head causing a cut and then punched her in the face -- 4 years imprisonment.

[36] If my arithmetic is correct, then all the sentences I have just imposed would, if they were ordered to be served consecutively, result in a total term of imprisonment of 176 years and ten months. Some of your victims may well think that such a term would be appropriate. The figure shows quite dramatically the enormity of your offending.

[37] But in our system of law we have what is called the totality principle. That means that when an offender is being sentenced at the one time for a number of different offences the court must ensure that the total combined sentence is not excessive or unjust in relation to the types of offences committed and the circumstances of the offender. The court needs to assess what period of imprisonment is proper for the total criminality involved.

[38] Now applying that totality principle, my assessment of the appropriate total sentence in the circumstances of your particular case is 14 years imprisonment. But as I told you this morning, you are entitled to a discount for your guilty plea. I also take into account the time that you have already spent in custody awaiting sentence.

[39] Taking those features into account, I am prepared to reduce the sentence which would otherwise be appropriate in your case and the sentence I now impose is 11 years imprisonment. To achieve that result, I order that all the sentences on each indictment are to be concurrent and concurrent with each other (seven years imprisonment) except for the sentence imposed in respect of count 3 on CR 121/06, the charge of bodily harm to the Chinese lady, (four years imprisonment). That sentence is consecutive to the other producing a total sentence of 11 years imprisonment.

[40] In your case, however, there is a complicating feature. I have already referred to the sentence imposed on you by the former Chief Justice back in June 1999. That case involved nine charges of housebreaking. The Chief Justice imposed a sentence of seven years imprisonment but suspended the final one year for two years from the date of your release from prison. You began your reoffending well within that two year period and so I, therefore, now invoke that one year suspended sentence which means that the total sentence I am now imposing is 12 years imprisonment as from today date.

Joe White Masima

[41] You are 29 years of age and you are appearing for sentencing this morning on a total of 49 charges. According to the probation report you left for the United States in 1993. You returned for several months in 2001 and then in 2003 you moved back here permanently. In 1998 you married in the USA and you have two children. The Probation Officer says that you escaped from prison in December so that you could see your wife and children but the report does not disclose where they are now living at the present time.

[42] The Probation Officer states that when you arrived back in Tonga you started working for a fishing company but you told the officer that you found you could earn more money from committing crimes than from working for a living. So like Kafalava and your other mates you decided to embark on a career of crime. The Probation Officer said that you could offer no explanation to him for your criminal activities except that you associated with the wrong people. Not surprisingly, he assesses you as a high risk offender. Two of your offences relate to cannabis and you admitted your use of cannabis to the Probation Officer.

[43] I have already outlined the facts of the Paul Johansson robbery case in which you figured prominently. You were one of the accused who struck Paul Johansson across the face with the rock. You have, in fact, pleaded guilty to four counts of robbery.

[44] Rather surprisingly, you have no previous convictions prior to the 49 convictions that are entered against you this morning. You are also entitled to credit for your guilty pleas although some of them came at a fairly late stage.

Sentencing

[45] On the five housebreaking charges (count 7 and 13 on indictment CR 227/05, counts 1 and 3 on indictment CR 303/05 and count 1 on indictment CR 15/06 -- 4 years imprisonment on each. On the four conspiracy to housebreak charges (counts 3, 6, 12 and 18 on CR 227/05) -- 3 years imprisonment on each. On the four abetment to housebreaking charges (count 19 on indictment CR 227/05, counts 1 and 3 on indictment CR 36/06 and count 1 on indictment CR 34/05) -- 1 years imprisonment on each.

[46] On the six theft counts (counts 9 and 15 on CR 227/05) -- 6 months imprisonment on each; (counts 2 and 4 on CR 303/05 and count 2 on CR 15/06 -- 1 year on each; (count 2 on CR 34/05) -- 2 years imprisonment. On the seven conspiracy to theft counts (counts 4, 5, 8, 14, 16, 20, 28 CR 227/05) -- 6 months imprisonment on each. On the six abetment to theft charges (counts 17, 21 and 29 on indictment CR 227/05, count 5 on indictment CR 303/05 and counts 2 and 4 on indictment CR 36/06) -- 9 months imprisonment on each.

[47] On the four robbery charges (counts 11 and 23 on CR 227/05 and count 2 on CR 09/06) -- 2 years imprisonment on each; count 25 on CR 227/05 (Paul Johansson) -- 7 years imprisonment. On the four conspiracy to robbery counts (counts 1, 10, 22 on CR 227/05) -- 1 years imprisonment. On count 24 on CR 227/05 (Paul Johansson) -- 4 years imprisonment. On the four abetment to robbery charges (count 2 on CR 227/05, counts 6 and 7 on CR 303/05 and count 1 on CR 103/06) -- 1 years imprisonment on each.

[48] On the grievous bodily harm charge -- Paul Johansson -- (count 27 on CR 227/05) -- 6 years imprisonment. On the conspiracy to grievous bodily harm charge (count 26 on CR 227/05) -- 4 years imprisonment.

[49] On the possession of illicit drugs charge (count 1 on CR 253/05) and the use of illicit drugs charge (count 2 on CR 253/05) -- 6 months imprisonment on each.

[50] Again, it is necessary for the court to apply the totality principle and in carrying out this exercise I take into account all the matters I have earlier mentioned. Special credit is to be given for your guilty pleas. I also record that the court has received a letter from the Salvation Army confirming that you were one of their active participants in the introductory drug and alcohol workshop held at Huatolitoli prison in April. That is encouraging.

[51] The extent of your overall offending, however, is extensive and serious. If it was not for your guilty pleas the court would be looking at imposing a sentence in the order of 12 years imprisonment -- maybe slightly more. The sentence I have decided to impose in your case, however, is nine years imprisonment. To achieve that result all the sentences are concurrent and concurrent with those in the other indictments (equating with seven years) with the exception of the sentence in Count 2 on indictment CR 34/05 which is a two-year sentence for theft and the sentence on that count will be consecutive with all the others. The end result is a sentence totalling nine years imprisonment.

[52] As you have no previous convictions, it is appropriate for me, despite the number of charges you have been convicted on this morning, to consider the question of suspending part of your sentence. You have appeared before me frequently over the last month or so (this is your third appearance this week). Although the criminal activities for which you are being sentenced have been quite horrific, I do detect that you have seen the error of your ways and after serving time on this occasion I would expect you to settle down and live a responsible life. I am also influenced by your guilty pleas and your cooperation with the authorities. I have also taken into account everything Ms Mangisi has just said on your behalf in mitigation. I consider that a term of suspension is appropriate. I suspend the final two years of your sentence for three years from the date of your release.

Taulua Ta'ufo'ou

[53] You are appearing for sentence on 34 charges many of them committed as joint ventures with one or more of the other accused appearing with you this morning. You are only 21 years of age. The Probation Officer reports you as being in the ' very high risk' category of offender. You are the seventh child of your parents 14 children. Your mother told the Probation Officer that she believes you have been badly influenced by your brothers, one of whom appears with you this morning. You apparently were married in June 2004 and you have a nine month old son. You told the Probation Officer that it was only after you were introduced to Masima and Paongo by Siaosi Latu that you began to get involved in the criminal scene.

[54] In relation to the attack on Paul Johansson, you told the Probation Officer that when you realised that he was the boss of Friends Cafe you did not want to participate in the offence and you were preparing to get out of the car and walk back to town when one of the co-accused pushed you towards the victim and called you a coward. That was when you walked over to Paul Johansson and punched him enabling one of your co-accused to take the bag from the vehicle.

[55] To your credit, the Probation Officer reports that you were the one who confessed everything to the police and you have co-operated with the authorities since. The Probation Officer concludes that you are generally truly remorseful. I take those matters into account and, of course, you are entitled to credit for your guilty pleas. I have not been advised by the Crown of any previous convictions and so you are also entitled to credit for having a good record up until now.

Sentencing

[56] On the three housebreaking charges (counts 10 and 14 on CR 228/05 and count 1 on CR 14/05) -- 4 years imprisonment on each. On the four conspiracy to housebreak charges (counts 3, 9, 13, 19 on CR 228/05) -- 3 years imprisonment on each. On the one abetment to housebreaking charge (count 4 on CR to 28/05) -- three years imprisonment.

[57] On the five counts of theft (counts 8, 12, 16 and 28 on CR 228/05 and count 1 on CR 14/05) -- 1 year imprisonment on each. On the seven conspiracy to theft counts (counts 5, 7, 11, 15, 17, 20, 27 on CR 228/05 -- 6 months imprisonment on each. On the three abetment to theft counts (counts 6 and 18 on CR 228/05 and count 1 on CR 302/05) -- 9 months imprisonment on each.

[58] On the two robbery charges (count 22 CR 228/05) -- 2 years imprisonment; on count 24 CR 228/05 (Paul Johansson) 7 years imprisonment. On the three conspiracy to robbery charges (counts 1 and 21 on CR 228/05) -- 1 year imprisonment on each. Count 23 on CR 228/05 (Paul Johansson} 4 years imprisonment.] On the two abetment to robbery charges (count 1 on CR 228/05 and count 2 on CR 302/05) -- 1 year imprisonment on each.

[59] On the grievous bodily harm charge (count 26 on CR 228/05) -- Paul Johansson -- 6 years imprisonment. On the conspiracy to grievous bodily harm charge (count 25 on CR 228/05) -- 4 years imprisonment.

[60] On the count of possession and the count of supply of illicit drugs (counts 1 and 2 on CR 297/05) -- 6 months imprisonment on each.

[61] Applying the totality principle, if it had not been for your guilty pleas the court would have been looking at imposing a sentence in your case in the order of 11 years imprisonment. From my observations, I share the Probation Officer's conclusions about your remorse. I accept that it is genuine. Having regard in particular to your early guilty pleas, the sentence I impose is eight years imprisonment.

[62] To achieve this result, I order that all the sentences are to be concurrent and concurrent with the sentences in the other indictments (seven years imprisonment) with the exception of count 8 on CR 228/05 (a theft charge). The sentence of one years imprisonment in count 8 on CR 228/05 is to be consecutive with the other sentence producing an end result of a total of eight years imprisonment.

[63] In your case, because you have had no previous convictions, I think it is appropriate to consider suspending part of your sentence for a period. In this regard I am particularly influenced by your guilty pleas and your total cooperation with the authorities. I think that you are young enough to benefit from a period of suspension. The final two years of your sentence, therefore, will be suspended for three years from the date of your release.

Feleti Paonga

[64] You are appearing for sentence on a total of 38 charges. You are 28 years of age. The Probation Officer reports that your father left for New Zealand in 1984 when you were six years old and your father ceased all contact in 2004 when he remarried. Your mother told the Probation Officer that she believes that you changed your lifestyle and started to get into trouble when you learned in 2004 that your father wished to have no further contact with his family and Tonga. That realisation of course, I accept, would have been difficult to adjust to but it is no excuse for turning to crime. You have a wife and a three-year-old foster daughter. You apparently have had several good jobs in the past and you obviously have some ability as a motor mechanic. The Probation Officer concludes that you are genuinely remorseful and you are ready to accept whatever sentence the court may impose.

[65] You have a conviction from 1995 for Found by Night. You were given a sentence of one years probation. In February 2005 you were convicted of housebreaking and Theft and the whole of the 18 months imprisonment sentence was suspended for three years.

Sentencing

[66] On the nine charges of housebreaking: (counts 4, and 10 on CR 229/05; count 3 on CR 304/05; count 1 on CR 27/06; and count 1 on CR 122/06) -- 4 years imprisonment on each; (count 14 on CR 229/05 - (Mrs Niumeitolu) -- 6 years imprisonment; count 1 on CR 256/05 and counts 1 and 3 on CR 38/06) -- 6 months imprisonment on each. On the three conspiracy to housebreak charges: (counts 3 and 9 on CR 229/05) -- 3 years imprisonment on each; (count 13 on CR 229/05) -- 4 years imprisonment.

[67] On the 11 counts of theft: (counts 19, 8, and 12 on CR 229/05; counts 4 and 5 on CR 304/05; count 1 on CR 27/06; and count 2 on CR 122/06 -- 1 years imprisonment on each; (count 16 on CR 229/05) -- 4 years imprisonment; (count 2 on CR 256/05 and counts 2 and 4 on CR 38/06) -- 6 months imprisonment on each. On the six conspiracy to theft charges: (counts 5, 7, 11, 18 and 20 on CR 229/05) -- 9 months imprisonment on each; (count 15 on CR 229/05) -- 4 years imprisonment. On the abetment to theft count (count 21 on CR 229/05) -- 9 months imprisonment.

[68] On the five robbery counts (counts 6 and 7 on CR 304/05; count 1 on CR 10/05 and count 2 on CR 102/06) -- 1 year imprisonment on each; (count 2 on CR 229/05) -- 6 years imprisonment. On the two conspiracy to robbery counts: (count 1 on CR 229/05) -- four years imprisonment; (count 17 on CR 229/05) -- 9 months imprisonment. On the abetment to robbery count (count 1 on CR 102/06) -- 9 months imprisonment.

[69] Having regard to the totality principle I have earlier described, had it not been for your guilty plea, the court would have been looking at imposing a prison sentence in your case in the order of 10 years. Taking into account your early guilty plea and cooperation, however, the sentence fixed is seven years imprisonment. To get that result I order that all the sentences are concurrent and concurrent with the sentences in other indictments (giving a total of six years imprisonment) with the exception of count 19 on CR 229/05 (one years imprisonment) which is to be consecutive to all the other counts, making a total of seven years imprisonment.

[70] Unfortunately for you, however, that is not the end of the matter because you have an 18 month sentence which was suspended for three years on 2 February 2005 on condition that you kept out of trouble. Your counsel, Ms Mangisi, accepted this morning that you have breached the condition of your suspended sentence. That sentence, therefore, is hereby invoked which means that the total term of imprisonment you are now sentenced to is 8 1/2 years.

Tuitu'u Ta'ufo'ou

[71] You are 29 years of age and you are appearing before me for sentence on 15 charges. The Probation Officer reports that you are the fourth of 13 children. It is clear from the Probation Officer's discussions with your family that you are considered to be, as he puts it, the 'bad guy' in the family. You told the Probation Officer that you were provoked by your co-offenders to get involved in crime but I find that difficult to accept because, as the Probation Officer observes, you are not a stranger to the court. You freely acknowledged to the Probation Officer your involvement with drugs, namely marijuana, and you told him that you used to cultivate the plant for your own use and supply because it is a fast source of money.

[72] You are not entitled to credit for having a clean record because you have several previous convictions including convictions for housebreaking and theft. You are a entitled to credit, however, for your early guilty pleas. The Probation Officer reports that you are now ready to bear the burden of your involvement in these criminal activities. He states that you feel remorseful and regretful for your wrongful actions and he believes that while in prison you will learn from your mistakes and straighten yourself out so that you can lead a better life upon your release. I hope that that all eventuates.

Sentencing

[73] On the four housebreaking charges (count 1 on CR 4/06; count 1 on CR 56/05; count 1 on CR 266/05 and count 1 on CR 267/05) -- 3 years imprisonment on each. On the four theft charges which I do not regard as very serious offences of their kind: (count 2 on CR 4/06; count 2 on CR 56/05; count 2 on CR 266/05 and count 2 on CR 267/05) -- 9 months imprisonment on each. On the one abetment to housebreaking charge (count 1 on CR 71/05) -- six months imprisonment.

[74] On the two possession of illicit drugs charges (count 1 on CR 252/05 and count 1 on CR 249/05) -- 9 months imprisonment on each. On the one charge of use of illicit drugs (count 2 on CR 252/05) -- 9 months imprisonment.

[75] On the charge of possession of ammunition without a licence (count 3 on CR 266/05) -- 6 months imprisonment.

[76] On the charge of abetment to robbery (count 1 on CR 104/06) -- 9 months imprisonment. On the one count of robbery, which is not a serious incident (count 2 on CR 104/06) -- 1 years imprisonment.

[76] Applying the totality principle in your case, had it not been for your guilty pleas the court would be looking at a sentence of anything up to six years imprisonment. After giving credit for your early guilty pleas, the sentence imposed is four years imprisonment. To achieve that result all the sentences imposed are concurrent and concurrent with the sentences in the other indictments (total three years imprisonment) with the exception of count 2 on CR 104/06 (one years imprisonment) which is consecutive to the other sentence, making a total of four years imprisonment.

Siaosi Latu

[77] You are 23 years of age and you are appearing for sentence on a total of 23 different charges. The Probation Officer reports that your parents have separated and you have had no contact with your mother since the separation. You attribute your trouble with the law to your experiences growing up with unstable parents and your involvement with the wrong people. You were married in March of this year and the Probation Officer reports that your wife is three months pregnant. Your wife told the Probation Officer that since your marriage she has seen big changes in your life and you are now fully committed to church services and you do not associate with your former criminal colleagues.

[78] That is pleasing to hear and what your wife says in that regard is completely borne out by the outstanding references you produced this morning from the Town Officer of your village and from the Bishop of your church. The reference from your Bishop was powerful and very moving. It is most pleasing indeed to see that you have turned your back on the past and you have now resolved, in the form of a personal pledge to your Bishop in December last year, that you are going to lead a law-abiding life in the future. Those assurances are extremely positive and promising. You cannot, however, escape appropriate punishment for the offences you are appearing for sentencing on this morning. You have two previous minor convictions for theft.

Sentencing

[79] On the five housebreaking counts: (count 1 on CR 301/05; count 1 on CR 263/05; counts 1 and 4 on CR 262/05 and count 1 on CR 191/04) -- 2 years imprisonment on each. On the two abetment to housebreaking charges (count 1 on CR 70/05 and count 1 on CR 168/04) -- 1 years imprisonment on each.

[80] On the five theft charges: (count 2 on CR 301/05; count 2 on CR 262/05; count 4 on CR 191/04, none of which I regard as particularly serious offences) -- 9 months imprisonment on each; (count 2 on CR 263/05 and count 2 on CR 191/04 -- 1 years imprisonment on each. On the three abetment to theft counts: (count 3 on CR 301/05; count 2 on CR 70/05 and count 2 on CR 168/04) -- 6 months imprisonment on each.

[81] On the two abetment to robbery charges (count 4 on CR 301/05 and count 1 on CR 105/06) -- 9 months imprisonment on each.

[82] On the one wilful damage to building charge (count 3 on CR 191/04) -- 4 months imprisonment. On the one conspiracy to commit an offence charge (count 4 on CR 262/05) -- 4 months imprisonment and on the one charge of abetment of a crime (count 1 on CR 29/06) -- 4 months imprisonment.

[83] On the drug charges, I accept that only a small amount of cannabis was involved in each case. On the one charge of supply of an illicit drug (count 1 on CR 250/05) -- 6 months imprisonment. On the charge of possession of an illicit drug, namely cannabis, (count 1 on CR 251/05 -- 6 months imprisonment. On the charge of use of an illicit drug (count 2 on CR 251/05) -- 6 months imprisonment.

[84] Applying the totality principle in your case, if it was not for your guilty pleas, the court would have been looking at imposing a total sentence of up to four years imprisonment. Given your guilty pleas to all the charges and the other strong mitigating factors I have mentioned, the sentence I impose is two years imprisonment. I achieve that result by making all the sentences concurrent and concurrent upon the sentences imposed in the other indictments.

[85] I have given careful consideration to suspension of part of your sentence. Your previous offences are relatively minor and there are promising signs that you are truly remorseful and you have seen the error of your ways. I also record that you appeared in court voluntarily this week even though, without your knowledge apparently, a warrant had previously been issued for your arrest.

[86] I think that yours is an appropriate case for some suspension of the prison term and I am prepared to suspend the final one year of the term for a period of three years from the date of your release.

NUKU'ALOFA: 26 MAY 2006

JUDGE