Rex v Letisi [2008] TOSC 24; CR 44 of 2007, 161 of 2007, 245 of 2007 (22 August 2008)

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

NO. CR44/2007, 161/2007, 245/2007

R E X

V

1. TALIFOLAU LETISI
2. 'ILAISA TAVALA TAFUNA
3. HELONIMO NGAUAMO

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Mr. Lutui for the Crown and Mr. Kaufusi for the accused.
Dates of Sentencing: 22 August 2008

SENTENCING REMARKS

[1] Your offending arose out of the events of 16/11. In another sentencing decision dated 15 February 2008 relating to those same events, I made some general remarks about sentencing which were recently endorsed by the Court of Appeal.
[2] I made the point that significant sentences were appropriate for major participants in such serious riots and I also observed that deterrent sentences were required so that good character and personal mitigation factors would carry comparatively little weight. I also noted the importance of looking at the specific acts of individual defendants. The Court of Appeal in the recent decision of R v Tafolo (unreported), Judgment dated 25 July 2008, endorsed those statements.
[3] I have had regard to all those factors in considering the appropriate sentences in your respective cases. I also note the fact that the three of you have accepted the jury's verdict and you have expressed genuine remorse over your criminal actions. That is more than I can say for the offenders in the previous case I have referred to.
[4] I have also taken into account the fact that your trial took place back in March but sentencing has been delayed at the request of your counsel pending the decision of the Court of Appeal in the Tafolo case. I stress that Mr Kaufusi's application for the adjournment until after the Court of Appeal delivered its decision was entirely appropriate but what it all meant was that you have now had sentencing hanging over your heads for some three months and that is not a pleasant prospect to have to live with.
[5] I note that Mr Kaufusi accepted that, in accordance with the authorities, a deterrent sentence was called for and, as he put it, "my hands are tied in that regard". I will now deal with your individual cases.

Talifolau Letisi

[6] You are appearing for sentence having been found guilty by the jury on one count of destruction of a building by rioters contrary to section 77 (1) of the Criminal Offences Act (Cap 18). You were acquitted on the other count. The building you were involved in the destruction of was the Shoreline Building. The jury saw you in a video clip and in photographs taken from the video attacking and smashing windows at the front of the Shoreline Building facing onto Taufa'ahau Road. Your counsel argued that you had not been adequately identified but the jury rejected that submission and in my view their decision in this regard was the correct one.
[7] You are 34 years of age. You have been married for 16 years and you have seven children ranging from 14 years down to 12 months in age. You operate a motor vehicle workshop at Malapo and you have been operating that business for the last 14 years. The Probation Officer says that you had been drinking at your workshop before coming to Pangaisi'i on the day of the riots and you were drunk but drunkenness is no defence otherwise the court would have to acquit every drunken criminal.
[8] You are the only breadwinner in your large family and one cannot help but feel a great deal of sympathy for your wife and children but you should have stopped and thought about them before committing the offence. I accept that you are now remorseful. The Probation Officer has produced a helpful reference from your church minister.
[9] You are not a first offender but I accept what your counsel said that your previous offending was of a different nature and took place some time ago now. You are not entitled to credit for a guilty plea because the matter had to go to trial.
[10] The maximum sentence for the offence you were found guilty of is 15 years imprisonment. So it is a very serious offence for a person to be part of a riotous assembly that starts to destroy a building. In the event, of course, the Shoreline Building was eventually set on fire and completely destroyed and eight people were burnt to death inside the building. Your involvement, however, was as I have described earlier, namely smashing the glass frontage of the building. As your counsel acknowledges, your actions call for a strong deterrent sentence.
[11] Your actions were similar to those of one of the accused in the previous case I have referred to who was charged in relation to the Island Mobile Shop. I sentenced him to seven years imprisonment. I do not think, however, that your involvement was as serious as his because he was active in promoting the burning down of that building. The sentence I now impose in your case is five years imprisonment. You are convicted and sentenced accordingly.
[12] I have given serious thought as to whether it is appropriate to suspend part of the sentence imposed. Although you are not entitled to the benefit of a guilty plea, the Probation Officer says that you are genuinely remorseful and you now very much regret your wrongful action. I accept those observations and I am pleased to note that you accept without equivocation the jury's verdict. I believe that you would benefit from a partial suspension of sentence. I, therefore, suspend the final two years of your sentence for two years from the date of your release.

'Ilaisa Tavake Tafuna

[13] You are appearing for sentence having been found guilty by the jury of two charges arising out of the events of 16/11. The two counts you were convicted on were damage of a building by rioters. The two buildings were the Leiola Duty Free shop and the Royal Nuku'alofa Club.
[14] You gave evidence at your trial denying having gone anywhere near the Nuku'alofa Club on the afternoon of the riots. You admitted walking past Leiola Duty Free but you claimed that at that stage the shop had already been smashed and looted. Clearly the jury believed the witnesses who gave evidence to the contrary and described your involvement in the attack on both the Nuku'alofa Club and the Leiola Duty Free shop.
[15] Fetutuki Ulakai told how she saw you pick up a piece of timber and start smashing it against the door of the Nuku'alofa Club. Tu'ipulotu 'Ilavalu told how she saw you throwing rocks at the club and damaging the building. The evidence also clearly established your involvement in the damaging and looting of the duty-free shop.
[16] You are 44 years of age. I say at once that you were old enough to know better than to get involved in this criminal activity. The Probation Officer reports that you have been married three times. Your first two marriages were in the United States where you have five children from your first marriage and one child from your second marriage. You married your present wife in 2002 and there are no children from that issue. Your wife told the Probation Officer that you have an anger problem and I accept that.
[17] Your counsel tells me that you work as a security officer at the Tonga Rugby Football Union. It was clear from the evidence at your trial that you are particularly well known around Nuku'alofa because you used to operate a curry shop on Taufa'ahau Road. Several of the witnesses simply identified you as the man who ran the curry shop.
[18] You do have previous convictions but I accept that it was for a different type of offending and the conviction now goes back a number of years. You are not entitled to credit for a guilty plea because the case had to go to trial. The Probation Officer reports that you show remorse for your actions.
[19] The maximum sentence for the charge you are facing is seven years imprisonment. On each count you are convicted and sentenced to four years imprisonment. The sentences are concurrent. I have given careful thought to suspending part of the sentence. You do not have much going for you to support such a plea but I accept that you have kept out of trouble for a long time now. I also accept that you are genuinely remorseful and you do not challenge in any way the jury's verdict. The final one year of your sentence will, therefore, be suspended for a period of two years from the date of your release.

Helonimo Ngauama

[20] You are appearing for sentence having been found guilty by the jury of one count of damage to a machine by rioters, one count of housebreaking and one count of damage to a building by rioters. The "machine" was a white minibus parked at the Ministry of Finance building. The housebreaking charge related to Molisi's Supermarket and the damage to a building charge related to the Chinese Hua Sheng Shop and warehouse on Taufa'ahau Road. There was clearly more than sufficient evidence for the jury to find you guilty on those counts.
[21] You are 49 years of age, married but separated. You have a son who lives with you but your three daughters live with your wife in New Zealand. You are unemployed.
[22] You have four previous convictions but I accept that they were incurred a long time ago. You are not entitled to credit for a guilty plea. The Probation Officer says that you are truly remorseful and you are ready to bear the burden for your wrongful actions. He reports that on the day in question you were under too much pressure because of your concerns about the political situation. Your concern, however, does not justify your resorting to criminal activities. Your sentence must involve a deterrent aspect.
[23] The maximum sentence for each charge of causing damage by rioters is seven years imprisonment. The maximum sentence for housebreaking is 10 years imprisonment. I take into account, however, the fact that you were not the only person who broke into Molisi's on the day in question.
[24] On count one you are convicted and sentenced to four years imprisonment. On count two you are convicted and sentenced to three years imprisonment and on Count 3 you are convicted and sentenced to four years imprisonment. The sentences are concurrent making four years in total.
[25] As with Tafuna, you do not have a great deal going for you in support of a suspended sentence submission but I accept that you have lived a law-abiding life since your last offending back in 1987 and I also accept that you are genuinely remorseful. I consider, therefore, that you would benefit from a period of suspension and the final one year of your sentence is suspended accordingly for two years from the date of your release.

NUKU'ALOFA: 22 AUGUST 2008 CHIEF JUSTICE