Rex v Tu'iha'ateiho [2015] TOSC 8; CR 116 of 2013 (6 March 2015)

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

CR 116 of 2013

REX

V

HON. HAVEA TU'IHA'ATEIHO

BEFORE THE HON. JUSTICE CATO

Mr A. Kefu, Acting Attorney-General for the Crown
Mr. K. Barron-Afeaki SC for the accused

SENTENCE

[1] Lord Tu'iha'ateiho was convicted on 21st November, 2014 after a trial before me of being in possession of a firearm without a licence contrary to sections 4(1) (2) (b) and 47 of the Arms and Ammunition Act. The firearm in question was a .22 semi-automatic pistol. On the 19th January 2015, the sentence hearing was adjourned further to the 27th February 2015 on the application of defence counsel, Mr Afeaki SC, for him to collect evidence to proceed with an application that his client be discharged under the provisions of Section 204 of the Criminal Offences Act, as provided for by Section 28 of the Criminal Offences Amendment Act, 2012. This is a new provision which I will turn to later. Both counsel agreed that it would be helpful because the section was new that I reserve my sentencing judgement to enable it to be put in written form. This was the first time the section had been considered in this Court.

[2] Before I do so, other matters more generally related to the sentence should be considered. After verdict was given by me in the case, I had occasion to sentence Lord Tu'ilakepa (CR172/2014) on 4 counts of possession of unlicensed firearms and one count of unlicensed ammunition on each of five counts after his guilty pleas. He was fined $2000.00 on each count imposed cumulatively making the penalty one overall of $10,000 which by Tongan standards is a substantial fine.

[3] In the sentencing of Lord Tu'ilakepa, I considered aspects of sentencing principles relating to section 4 of the Arms Act and the penalty for being in possession of a firearm without a licence. Section 4(2 )(b) of the Act provides that the only penalty is one of a maximum of five years imprisonment. Unlike other provisions of the Act such as section 20 relating to unlawful importing, it does not provide a fine as an alternative or a possible additional penalty to a sentence of imprisonment. In my view, this is a clear message that Parliament intended a violation of section 4 to carry with it serious consequences.

[4] However, under Section 30 of the Criminal Offences Act, a Court has the power to impose a fine where it is considered appropriate in lieu of a sentence of imprisonment. In the case of Lord Tu'ilakepa, having heard counsel for both parties, I considered that, because the defendant was of good character, was a first offender, had contributed extensively to the Tongan community over many years, and had unwittingly inherited the firearms from a relative, who had lived at the defendant's premises before he had died, the matter should be dealt with by way of fine, and not by way of a term of imprisonment. This was not a case where the firearms had been associated with a criminal enterprise or obtained for trafficking purposes. It was acknowledged, in my view, appropriately by the Crown after hearing extensive submissions from the defendant's counsel, Mr Clive Edwards, who argued that a substantial fine would be an appropriate penalty in all the circumstances, that the matter could be disposed of in this way.

[5] Although in this case, Lord Tu'iha'ateiho pleaded not guilty, unlike Lord Tu'ilakepa, and was convicted after a trial, I consider the same approach should apply here. Lord Tu'iha'ateiho also is a man of good character, a Noble, a member of Parliament, and a first offender. He was found in possession of only one gun (Lord Tu'ilakepa had 4 unlicensed guns) in circumstances where I considered he had the firearm for protection. It was retained near his bed with ammunition, in the near proximity. Mr Afeaki explained that the defendant had two other licensed guns and ammunition but he did not advance any satisfactory reason why the defendant had not chosen to license this pistol, also aside from a suggestion it was an ornament.

[6] Having said this, I accept that when Lord Tu'iha'ateiho discovered his residence had been burgled and the firearm stolen, he informed the police that it was missing. The firearm was, I am satisfied, used in the commission of another serious crime either directly or indirectly by the burglar, and this is an illustration of the importance of ensuring that firearms are licensed and secure.

[7] As I have said, I consider, however, this is an appropriate case where I can apply Section 30 of the Criminal Offences Act, and deal with the sentence by way of fine rather than imprisonment. The defendant is a man of good character as Mr Afeaki emphasised, he is a first offender, and in his case there was only one firearm, involved. I take the view that the defendant was in possession of the firearm should a need for protection arise, and not for any more sinister criminal purpose. I consider also his decision to come forward and alert the police to the existence of the firearm was a factor which further justifies mitigating a more serious penalty. Mr Kefu, again, appropriately, in my view, did not suggest that I should deal with this matter other than by way of a fine. The appropriate fine in my view is $2500.00.

[8] However, Mr Afeaki suggested that I should go further than this. He submitted that, under Section 204 of the Criminal Offences Act, I should decline to enter a conviction which operates under the Tongan legislation as an acquittal. Section 204 provides;

"(1) Where a court is of the opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate, it may make an order discharging him absolutely or alternatively discharging him subject to the condition that he commits no offence during such period, not exceeding 3 years from the date of the order, as may be specified therein.

(2) A discharge under this section this section is deemed to be an acquittal.

(3) A court discharging an offender under this section may-

(a) Make an order for payment of costs or the restitution of any property; or

(b) Make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person, who, through, or by means of the offence, has suffered-

1. loss of, or damage to property
   
2. emotional harm; or
   
3. loss or damage consequential on any emotional or physical harm or loss of or damage to property."
   

[9] In a very comprehensive review of New Zealand authorities where similar but not exact statutory provisions relating to discharge without conviction exist, Mr Afeaki argued that I should not impose a conviction because the defendant would likely be considerably inconvenienced in relation to travelling to other countries either privately that is to be with relatives who lived in the United States or in Australia and elsewhere, or as an incident of his parliamentary life. He gave as examples Canada and the United States where permission to enter has to be applied for in advance if one has a criminal conviction, and in some cases file a certificate of rehabilitation. He contended that this would make it extremely difficult for the defendant to travel to those countries should he have to do so, or, for some reason, urgently. He also emphasised that in connection with performing his parliamentary duties the defendant could be expected to have to travel and a conviction might limit his ability to properly perform these duties. Indeed, in connection with his parliamentary activities, he has had to travel to many countries including, China, the United Kingdom, Australia, New Zealand and the United States as well as other Pacific Island Countries in the past.

[10] He suggested a conviction might even impair his security of tenure if he were unable to perform as a Member of Parliament. He could not say, however, that any country would deny Lord Tu'iha'ateiho admission with certainty. He argued also that Lord Tu'iha'ateiho 's responsibilities as a noble of the realm where he has a considerable burden of community duties might be impaired if a conviction were imposed and travel made more difficult. He argued that the defendant was unlikely to ever re-offend. He also argued as a further factor that he had volunteered the information concerning the unlicensed gun and brought it to the attention of the police.

[11] Mr Afeaki mentioned a number of New Zealand authorities where he argued that in cases of quite serious offending such as involvement in drugs, discharges without conviction had been given where to impose conviction would have consequences to the offender which would be regarded as disproportionate to the offending. Section 107 of the New Zealand Sentencing Act 2002 provides;

"The Court must not discharge an offender without conviction unless the Court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence."

[12] The cases Mr Afeaki mentioned were set out in his memorandum and in his book of authorities. I am grateful for his industry and have read those authorities. Whilst the provisions of the New Zealand legislation and predecessors are more broadly expressed than section 204, I consider the same approach should apply. Some judicial guidance, although it was based on earlier legislation in New Zealand, is to be found in the judgment of Richardson J in the Court of Appeal Fisheries Inspector v Turner [1978] 2 NZLR 233. Richardson J observed;

"The real question then is whether the statutory consequences of a conviction may be taken into account and given appropriate weight as considerations relevant to the exercise of the discretion. Put in that way, there can be only one answer. In considering the exercise of discretion under section 42 the Court is required to balance all the relevant public interest considerations as they apply in the particular case.

His Honour went on to say;

It must have regard to the seriousness of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on his conviction; and indirect consequences. And if the direct and indirect consequences of a conviction are, in the Court's judgment, out of all proportion to the gravity of the offence, it is proper for a discharge under section 42 to be given."

Finally, His Honour went on to note that; '

"The jurisdiction to discharge under section 42 is one that must be exercised sparingly."

[13] I have considered the cases Mr Afeaki referred me to in his comprehensive memorandum. Most of the cases, however, where discharges have been successfully applied for are cases of less serious offending where the consequences because of the youth of an offender, or other subjective factor pertaining to the offender, has meant that the imposition of a conviction would have a serious and disproportionate effect on an offender in terms of his or her future life. Even where the offence itself could be characterised as a serious offence, the circumstances suggested in the New Zealand cases generally involve lower level offending. Foremost, in my view, amongst the considerations here must be the nature of the offence and the importance of obtaining security and control of firearms in the Tongan community. This raises the issue of whether the offence of possession of an unlicenced firearm and the circumstances of the offending should be considered sufficient to outweigh the subjective considerations advanced in support of a discharge by Mr Afeaki such as the good character of the defendant, his role in Tongan society as a Noble and as a politician with the likelihood that he will be inconvenienced by restrictions on travel that may apply if he were not discharged without conviction. He also advanced the fact that he had volunteered the theft of the gun to the police a factor which I did take into account when accepting that a fine was an appropriate penalty. He also submitted that there was a firearm's amnesty granted shortly after the defendant had approached the police and that, in these circumstances, he should not have been prosecuted. I do not, however, regard this as a factor which is relevant to my considerations, here.

[14] In my view, Parliament has set a clear directive to the Courts that serious consequences should follow a conviction for being in possession of an unlicensed firearm. Although I have mitigated the penalty of imprisonment by imposing a fine under Section 30 of the Criminal Offences Act, which Mr Kefu, in the circumstances of this case was in agreement with, to go further would in my view be wrong, and would diminish the importance of the need to ensure compliance with the legislation and promote firearms' security and control. Mr Kefu submitted that it would be wrong to discharge Lord Tu'iha'ateiho under section 204 in these circumstances. He submitted that discharge without conviction should be reserved for only exceptional cases, and that deterrence to other offenders as well as prominent members of society was an important issue here.

[15] He emphasised also the need to ensure that sentences are proportionate to the offending which he submitted was serious offending, and that it was important to uphold the public interest in protecting the public from unlicensed and unregulated access to firearms. He contended that consequences of offending was a matter that should not influence the court here - and included within that, the ability to freely travel overseas. Further, he submitted that the defendant had demonstrated less than a fully co-operative approach to the prosecution in defending the proceedings, and indeed in the manner in which the case had been defended, by suggesting that the gun was an ornament. This was it seems in answer to the submission advanced by Mr Afeaki that I should take into account the fact that Lord Tu'iha'ateiho had volunteered information to the police that his firearm had been stolen.

[16] I have weighed up all the factors both as they pertain to the seriousness or nature of the offending and the character of the offender. In my view, the licensing and security of firearms in any society is a matter of great importance, and in this case the paramount consideration. I consider that Parliament in providing that imprisonment was the appropriate penalty for being in possession of an unlicensed firearm, evidenced its intent plainly. I consider that Mr Kefu is correct when he submits that, as a very senior member of the Tongan community, with his societal and professional responsibilities, Lord Tu'iha'ateiho should have known better and respected the legislation. He had licensed other firearms I was informed. It would be a wrong message for the Tongan community that persons could avoid conviction for being in possession of unlicensed firearms by essentially an appeal to the avoidance of possible travel restrictions. I share the view that he had the weapon by his bed with access to ammunition as a protective measure and not simply as an ornament.

[17] Having said that I have not considered this later factor as any makeweight in my approach to section 204 and its application. I accept that there may well be certain inconvenience and even hardship associated with travel restrictions for Lord Tu'iha'ateiho but I do not think that this outweighs the objective public interest factors which I have mentioned and the need to impose a conviction for offending as objectively serious as this. I consider Mr Kefu is correct when he submitted

"... given the entirety of the circumstances of this case, this is not an appropriate case for a discharge without conviction, but rather it is an appropriate case for a non-custodial sentence to be imposed, in the form of a fine."

[18] I indicate also that I do not think the Tongan legislation is wide enough to allow, as Mr Afeaki submitted could be the case, and some New Zealand examples exist, a Court to impose in addition to costs, a payment of a sum to a charity or other similar body in lieu of a fine. The legislation is specific as to what penalties a court may impose and they are restricted to costs, compensation and restitution.

[19] Accordingly, on the charge of unlicensed possession of a firearm I convict and sentence Lord Tu'iha'ateiho to a fine of $2500.00 to be paid within 2 months of today's date or in default three months imprisonment. The firearm is forfeit.

DATED: 6 MARCH 2015

JUDGE