Rex v Kali [2007] TOSC 7; CR 57-2007 (10 August 2007)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY NO. CR.57 of 2007

BETWEEN:

R E X
Plaintiff

AND:

MA’AKE KALI
Defendant

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Ms. Mafi for the Crown

Mr. Kaufusi for the Accused

Date of Ruling: 10 August 2007

SENTENCING REMARKS

[1] You are appearing for sentence before me having been found guilty after a six-day jury trial of two serious offences arising out of the events of the 16/11/2006.

When the trial commenced, you were facing a total of 9 various charges relating to 4 different buildings which were destroyed in the riots.

At an early stage, your counsel gave notice that you would be challenging the admissibility of a so-called confession and other statements made to the police which the prosecution intended to produce in evidence.

Your challenge was based on your assertion that the statements were not made voluntarily but were obtained as a result of threats made by the police while you were held in custody at the police station.

Section 21 of the Evidence Act provides that if a confession is not given voluntarily then it cannot be used as evidence against an accused.

After a trial on the voir dire, or in other words a trial within a trial, your challenge to the admissibility of the statements in question was upheld and they were ruled inadmissible.

[2] The end result was that the Crown then withdrew seven of the charges and you were left facing the two charges upon which the jury found you guilty.

The first of those charges was riotous assembly contrary to section 75 (2) of the Criminal Offences Act.

The particulars allege that on 16 November 2006 at Nuku'alofa you were part of a riotous assembly.

That offence carries a maximum penalty of four years imprisonment.

The second charge was the more serious offence under section 77 (1) of being riotously assembled and beginning to pull down or destroy a building.

The particulars allege that on 16 November at Nuku'alofa, whilst being riotously assembled you did begin to destroy the Rainbow Store by breaking the windows with rocks.

That charge initially carried a maximum penalty of imprisonment for life but in 1990 the sentence was amended to 15 years imprisonment.

It is still a very severe maximum sentence showing how seriously Parliament regards the offence.

[3] The evidence in your case was that during the afternoon of the day in question a large group of rioters set out from Pangai Si'i and ransacked, first, Molisi's then they went on to destroy the Pacific Royale Hotel and then the Shoreline or Tonfon building.

That same group of rioters then came back into town and assembled outside the Rainbow Shop which was operated by Chinese people.

There were about 200 to 300 rioters assembled outside the Rainbow Shop and they began to yell out words to the effect, "let's smash the Chinese."

The evidence was that they then unlawfully entered the Rainbow Shop and began to trash it.

All the goods in the shop were thrown outside and seized by looters.

The building itself was then set on fire and completely destroyed.

[4] You claimed in your evidence that at no stage were you a part of that riotous assembly.

In your evidence, you told the court that, out of curiosity, you and your friend Luani had simply gone to see the damage caused to Molisi, the Pacific Royale and the Shoreline building

But you claimed that you and Luani had gone around after the rioters, not with them, and you said you did not go anywhere near the Rainbow Shop.

You said that after inspecting the damage at Molisi, the Pacific Royale and the Shoreline building you and Luani had made your way back to your home village of Popua, catching a taxi from near the mortuary building.

You said that you never went back into town to the Rainbow Shop.

Clearly, the jury disbelieved you in relation to the Rainbow Shop.

[5] The Crown, however, called evidence from a young woman, 'Ofa Moala, who worked at 21st Century, another Chinese store diagonally across the road from the Rainbow Shop.

'Ofa Moala told the court that she knew you from when you both lived in Popua in the mid-1990s and she identified you in the mob that assembled outside the Rainbow Shop.

She said that she watched you for some time and she was clearly able to identify you.

She said that she could see you clearly because you were in the forefront of the crowd.

She told how after the crowd started yelling out to "smash the Chinese" you threw a rock which you had in your hand and smashed the glass entrance door to the shop.

She then told how you and the rampaging crowd then entered the store and began trashing it and throwing goods outside which were retrieved by looters.

The store was eventually set alight and completely destroyed.

'Ofa Moala was a totally credible and convincing witness.
The jury, quite rightly in my view, accepted her evidence.

I am satisfied that you were one of the ringleaders, if not the ringleader, in that riotous assembly which destroyed the Rainbow Shop.

[6] As I said at the outset, the offences you have been found guilty of are extremely serious.

The events of 16/11 will live in the memory of all Tongans for many years to come.

Never before in the modern history of the Kingdom has such a state of lawlessness existed.

For a few anxious and horrifying hours anarchy prevailed.

It was a day of infamy and shame.

You may not have been one of the ringleaders at Pangai Si'i but I am satisfied that you played a major role in the attack which ended in the destruction of the Chinese Rainbow Shop.

'Ofa Moala told how the Chinese business she worked in across the road from the Rainbow Shop was also burnt to the ground.

[7] In cases of this nature involving large groups of people, it is not always easy for the police to track down the culprits.

You might be thinking to yourself, as your counsel submitted, "why pick on me?" and punish me when there were a considerable number of other people at the same time committing the same offence.

That is often the reaction where, as in this case, the offence is one of those classed as disturbances of the public peace such as riots and unlawful assemblies.

Commenting on such a situation, the Court of Criminal Appeal in England, in a case back in 1970, had this to say:

"It indicates a failure to appreciate that on these confused and tumultuous occasions, each individual who takes an active part by deed or encouragement is guilty of a really grave offence by being one of the number engaged in a crime against the peace. It is, moreover, impracticable for a large number of police when sought to be overwhelmed by a crowd to make a large number of arrests."

When the police are able to make an arrest, as in your case, the court has a very real duty to send a strong deterrent message to all people that riotous behaviour, in any form, will not be tolerated and will be punished appropriately.

[8] As I have said, you may not have been one of the political activist who had been regularly meeting at Pangai Si'i but you were one of the many that day who willingly seized the opportunity to participate in the violence and mayhem that prevailed.

In your case, however, as I have indicated, I am satisfied that not only were you an active and willing participant in the destruction of the Rainbow Shop but you were one of the ringleaders in that it was you who threw the first rock which broke the glass door and allowed the rioters to enter the building.

When there is wanton and deliberate destruction to a gross degree like that which you exhibited on the day in question the court is not concerned with the motive for your participation.

When it comes to sentencing, it is the degree of mob violence that matters and the extent to which the public peace was being broken.

The degree of mob violence which you demonstrated was extreme in every respect.

The offence of participating in an unlawful or riotous assembly derives its gravity from the weight of numbers of those who joined in and pursued the mob's common and unlawful purpose.

The threat which became a reality lay in the number of people involved and the power that they collectively possessed to cause wanton destruction.

The number of rioters estimated to have been involved in the attack on the Rainbow Shop was estimated by the witness 'Ofa Moala to be between 200 and 300.

She gave graphic evidence about how she was terrified by the threat that the mob presented.

The law has always leaned heavily against those who, to attain an unlawful objective, use the threat that lies in the power of numbers.

Your counsel stressed that the only direct evidence of destruction on your part was the throwing of the rock that smashed the front door to the Rainbow Shop.

But in a riotous assembly situation the Court does not look at acts in isolation because they were not committed in isolation.

The extent of the gravity of the offence in your case can be seen from the fact that the building in question was totally destroyed.

[9] Taking all these factors into account, I now turn to the two very serious offences you have been found guilty of.

Dealing first with the more serious offence under section 77(1), the maximum sentence is 15 years imprisonment and I consider an appropriate starting point is 7 to 8 years imprisonment.

That figure is then to be adjusted up and down depending upon the aggravating and mitigating factors.

You are not entitled to credit for a guilty plea.

You are not entitled to credit for having a clean record because you do have previous convictions including a four-year imprisonment sentence imposed in 2001 for supplying illicit drugs, namely cannabis.

In fact, there is very little that can sensibly be put forward in mitigation on your behalf.

The court has before it a very detailed and helpful probation report.

You are 30 years old and you are the seventh child of your parents eight children.

In your early years you were apparently shaping up as a high achiever but the probation officer reports that soon after you entered Liahona High School all that begin to change.

You became influenced by a bad peer group and you began disobeying your parents.

You were expelled from Liahona High School in the fourth form for misbehaviour and other disciplinary matters.

The probation officer reports that in 1997 your parents sent you to New Zealand in the hope that you would find a better lifestyle.

You became an overstayer, however.

[10] You were then sent to prison for assaulting your girlfriend and after your release from prison you were deported back to Tonga.

In March 2001 you were charged with importing a bag of marijuana from Fiji on a fishing boat.

You were then convicted and imprisoned for four years.

One would have hoped that you would have learned your lesson after that prison experience but that was not to be.

You have obvious skills in your trade carving items of jewellery from the bones and teeth of certain fish and animals.

[11] In February 2005 you married your wife Fa'afouina.

She sounds to be a nice sensible young woman and she has written a powerful plea to the court on your behalf.

But even on that front you have made a mess of things.

Your wife lives and works in New Zealand where she has to look after her elderly parents.

In her letter to the court she talks about the impact this conviction will have on your married life.

She is sensible enough to acknowledge that given your past history and this present conviction you are going to have what she referred to as "major difficulties" in ever getting a visa for New Zealand.

Those are the mitigating factors that I have taken into account.

I have also had regard to the submissions Mr Kaufusi has made about your remorse.

On the other hand, however, there are aggravating features such as the enormity of the destruction you were involved in relation to the shop in question and the fact that you were one of the ringleaders, if not the ringleader, in that attack.

[12] Taking all these factors into account, and making appropriate allowance for the relatively short period of time you spent in custody pending the processing of the charges against you, the sentence I impose on the second count is 7 years imprisonment.

On the first count of riotous assembly, you are convicted and sentenced to 3 years imprisonment.

The sentences are to be concurrent making a total term of imprisonment of 7 years which will commence as from today.

I have given consideration as to whether it is appropriate to suspend any part of the sentence I have just imposed.

You have previous convictions, however, including one resulting in a lengthy jail term and clearly you did not learn from those previous experiences.

I am not confident, therefore, that you would learn anything from a suspended sentence and so I do not regard that as an appropriate option.

You will, therefore, be expected to serve the whole of the 7 year term which I have just imposed.

NUKU'ALOFA: 10 AUGUST 2007

CHIEF JUSTICE