Rex v 'Uluaki'ahoia [2012] TOSC 15; CR 58 of 2009 (9 March 2012)

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

CR 58 OF 2009

REX

-V-

VILIAME PANUVE 'ULUAKI'AHOIA

BEFORE THE HON. JUSTICE SHUSTER
HAVING HEARD - Crown Counsel, Mr Piukala and from the defendant in person. The defendant pleaded guilty on re-arraignment to a two count indictment alleging one count of HSB and one count of Common Assault when re-arraigned on 23rd February 2012.

On the defendant entering his guilty pleas on re- arraignment, the facts were opened and agreed, and the case was adjourned for the preparation of a Pre-Sentence Report.

The defendant was remanded in custody to be sentenced on Friday 09th March 2012 @ 14.00 because of his prior history of not attending court for trial in July 2011 and in view of the serious nature of this case, in that this was an allegation of housebreaking at night and the complainant [a woman] was cut by the defendant with a knife he had on him, in three places whilst the complainant was in her bedroom asleep with her young child.

BRIEF FACTS

The brief facts - the prosecution allege that on the night of 28th February 2009 the complainant in this case went to bed with her husband and her young child at around 11pm.

At approximately 2.30 am in the morning the complainant woke up to see someone standing beside her bed holding a knife with BOTH hands. When the man made a motion to stab her she told the police she grabbed hold of his hands and they struggled in her bedroom.

According to the prosecution the woman cut her hand and her chin and while they struggled with the knife - the intruder managed to stab the complainant in the chest. This cut made the complainant shout out which woke her husband. The complainant suffered minor cuts to her body as a result of that knife assault.

According to the prosecution the complainants husband ran after the intruder but could not locate him. The accused was located by soldiers from the TDF when they searched him - in his pocket they found panties which were identified as belonging to the complainant and which had been hanging drying in the complainant's bathroom - earlier that night.

The defendant was arrested and charged with these offences by the police. The court record shows the defendant initially pleaded NG to the charges and he also failed to attend court on the date of his trial when all prosecution witnesses were present. As a result of his non appearance for trial on 20th July 2011 a warrant was issued for the defendants arrest.

The defendant was arrested on that arrest warrant - and he has been on remand since 24th October 2011. A fresh – jury trial had been set by the court for 22nd February 2012.

STARTING POINT

I told the defendant [in open court] that my starting point for a person who steals property from a dwelling house late at night and who assaults a woman inside her house late at night - whilst armed with a knife - at night, on a not guilty plea - is a sentence of FIVE years imprisonment - even for a first time offender . In mitigation however and to his credit the defendant is a first time offender who did change his plea to guilty when all the witnesses appeard on the new trial date.

The defendant is sentenced as follows:-

Count 1 - The defendant is sentenced to FOURYEARS in prison

Count 2 - The defendant is sentenced to ONE YEAR in prison as the defendant cut the complainant with his knife. The sentence for count two is to be served CONSECUTIVE to court one as violence was offered inside a home whilst committing a crime [stealing the complainants panties] - making a total sentence of FIVE years in prison

All sentences are – to be served concurrent.

The court then goes on to consider if it can suspend any part of the sentence which has just been passed on the defendant. In this case the court has decided to suspended THREE YEARS of that FIVE year sentence which it has just passed, but this suspension is conditional on the defendant- keeping the peace and being of good behaviour and committing no further offending during the remaining period of the suspension of the sentence of imprisonment .

This sentence is to start from 24TH OCTOBER 2011 - which is the date of the defendants first remand into custody on a warrant issued for not attending court for trial. The court warned the defendant about committing further offences during the period of his suspended sentence.

This is to be a deterrent sentence, applying the principles enunciated in the case of - Crown –v- Cunningham. A copy of this order is to be served on the defendant and - the Prison Service.
TOTAL PERIOD OF IMPRISONMENT IS TWO YEARS IMPRISONMENT STARTING FROM 24TH OCTOBER 2011 - REST SUSPENDED

DATE: 9 March 2012

JUDGE