R v Fifita [2018] TOSC 6; [2018] Tonga LR 28; CR 103 of 2017 (26 January 2018)

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

CR 103 of 2017

BETWEEN: R E X - Prosecution

AND: HEKISOU FIFITA - Defendant

BEFORE THE HON. JUSTICE CATO

S E N T E N C E

1. The defendant, Hekisou Fifita, was charged on indictment with one count of carrying arms with intent to commit an offence contrary to section 42(1) of the Arms and Ammunition Act and a second count of carrying arms in a public place contrary to section 44(1) of the Arms and Ammunition Act, particulars of which was a .22 rifle and five.22 long rifle ammunitions. He pleaded guilty to both charges at the earliest opportunity, on the 2nd October, 2017.
   
2. The Summary of Facts read that on or about the 6th August 2016, the complainant was working as a security at the Nauti - Ruby’s Bar. The accused was in that bar consuming alcohol and he was taken by the security out of the bar. When he got outside the accused elbowed the complainant in the chest. The complainant pushed him away. The complainant went back into the bar and the accused went to his car in the parking area. He came back to the bar carrying a .22 rifle seeking the complainant to shoot. He got to the entrance of the bar and asked for the complainant. An person ran by and managed to take the .22 rifle away from the accused. The police arrested him. The .22 rifle was said to be in good working condition and .22 long rifle ammunition were tested and found to be in good working condition. The accused had a licence for a .22 rifle and five.22 long rifle ammunition. The accused is a first offender.
   
3. When he first came up for sentence I was concerned at an aspect of the Summary. I asked for additional evidential concerning whether the rifle was loaded at the time and adjourned the sentencing. An affidavit was subsequently filed by a Tongan police officer with 12 years experience saying that he had attended the complainant, saw the accused struggling with another person over the rifle and he had confiscated the rifle together with a magazine with 5 rounds of ammunition that was found inside his pocket. Importantly, he said the rifle was not loaded.
   
4. The defendant, who is aged 48, in his probation report detailed a different version of events involving his participation which appeared to me to have no credible application to the summary which he had signed. It involved a suggestion of his being involved in an earlier attack, then going to his office and laying a complaint with the police who followed him back to the Nightclub, there being attacked again and remembering his rifle in his vehicle which he seems to say he got for his protection. The defendant was represented by counsel Mr Fili when he entered his plea and signed the Summary of Facts. I dismiss any alternative explanation he has given to his probation officer.
   
5. However, I am doubtful whether he had the gun to shoot the complainant as the Facts read rather than to scare or threaten violence. He was charged with being in possession of a firearm with the intention, the Crown particularised, of attempting to assault the complainant to which he pleaded guilty and not to some more serious crime of intended violence. The rifle I am satisfied at the relevant time when intervention occurred was not loaded although I do not overlook he had access to ammunition and had placed this in his pocket. Had it been loaded then more serious consequences would have followed in terms of this sentencing as that would have suggested an actual shooting was contemplated. I take the view that the defendant acted out of character and became belligerent after having been removed from the nightclub. I consider that he has had some difficulty himself in coming to an understanding of his aberrant behaviour, that evening. I have no doubt his judgement, however, was seriously affected by the liquor he had consumed although he does not admit to an alcohol problem. There is no other reason for his aberrant behaviour, or drunken bravado and I will address this in the sentence I impose.
   
6. The probation report indicates that the defendant, who is a first offender, in his forties, is married with five children. He came from a respected Tongan family. Two of his children are pursuing tertiary education. His wife has a senior position at Viola Hospital. He is a senior civil servant with tertiary qualifications including a Masters in Business Administration. He has held senior positions at the Ministry of Meteorology, Energy, Information, Disaster Management, Environment, Climate Change and Communications. He used to represent the Ministry on some meetings overseas and to outer Islands. He is a man plainly who has had a good education and had an important career in several facets of service to the Tongan community.
   
7. That said, the offending in serious. The charge of possession of a firearm with intent carries a maximum sentence of ten years imprisonment; the lesser offence, 5 years imprisonment which are indications that Parliament plainly viewed this kind of offending as serious. I inquired with both counsel what the starting point should be. Mr Fili submitted three years and the Crown about three and half years imprisonment. I consider there being no sentencing comparable, a sentence of three years and 3 months imprisonment is appropriate reflecting that, although this is serious offending, it was in my view for reasons I have given towards the lower end. If the weapon had been loaded or the complainant hurt as a consequence of some use of the rifle that would have justified, in my view a higher starting point.
   
8. By way of mitigation for his early guilty plea I allow him a reduction of 12 months, and a further six months for his good character and valuable work for Tonga and also I take into account his expression of regret albeit his alternative view of the facts which I do not accept rather tempers that. In all I allow him 18 months discount by way of mitigation. The sentence of imprisonment for count one carrying arms with intent to commit an assault I impose is one year and nine months imprisonment.
   
9. I have decided to fully suspend his sentence. He is a first offender and has been co-operative with police and pleaded guilty at the first available opportunity. Nobody was hurt in this incident. The defendant has plainly fallen from grace, no doubt suffered some humiliation and I have no doubt has had difficulty in coming to terms with his actions which I am satisfied were out of character, that evening. A lengthy period of community work will be a significant imposition for him as the retributive or punishment factor in this sentence and has been organized by Probation with the defendant’s qualifications and experience in mind to benefit Tonga. I further adjourned his sentence so that Probation could take steps to facilitate this. They have done so and I am satisfied with the proposal which I set out below. The terms upon which I fully suspend his sentence of imprisonment is that;
   
   1. He is placed on probation for the term of his suspension;
      
   2. He is not to commit any offences punishable by imprisonment for the term of his suspension;
      
   100. He is not to drink alcohol during the term of his suspension;
        
   4. He is to undergo the following courses under the direction of probation;
      
      1. A course on alcohol and drug abuse
      2. A course on anger management
         
   5. He is to perform 140 hours community work under the direction of probation and also under the direction and supervision of Mr Andrew To’moana (Director of IT MEIDECC department). The community work he may undertake in compliance with the order includes;
      
      1. Conducting a survey on education standards in Forms 5, 6 and 7 to be analysed and reported;
         
      2. Provide advice to students in villages regarding education and educating them to set goals;
         
      3. Provide advice to people in villages regarding security issues when using Social Media and the Internet;
         
      4. Provide Computer training skills to Civil Officers of the Government;
         
      5. Create a Computer Program to store records of the department.
         

10. Probation is to report to the Court at the conclusion of the required attendance being 140 hours.

11. He is warned that a failure to perform the conditions of his suspension may mean that he is required to serve the term of imprisonment imposed upon him.

12. On count 2 charge of carrying a firearm and ammunition in a public place I convict and discharge him.

13. The rifle and ammunition is forfeit.

C. B. Cato
DATED: 26 JANUARY 2018 J U D G E