R v Fifita [2018] TOSC 9; [2018] Tonga LR 71; CR 49 & 51 of 2017 (8 February 2018)

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

CR 49 & 51 of 2017

BETWEEN: R E X
- Prosecution

AND: 1. ‘AMONI FIFITA
2. PAKILEATA FUKOFUKA

- Defendants

BEFORE THE HON. JUSTICE CATO

S E N T E N C E

1. The prisoner, ‘Amoni Fifita, was charged with one count of armed robbery contrary to sections 154(1) and (3) of the Criminal Offences Act. After a defended trial, he was found guilty by me in a verdict delivered on the 5th December, 2017.
   
2. His co-accused, Pakileata Fukofuka, was charged with one count of abetment to armed robbery contrary to sections8 and 154(3) of the Criminal Offences Act. He was also found guilty after a defended trial in the verdict given by me on the 5th December, 2017.
   
3. A third man who gave evidence for the Crown after pleading guilty to armed robbery and being sentenced by me on the 9th August, 2017, Viliami Kopu, was sentenced to 4 years imprisonment, his sentence being reduced from 7 years imprisonment because of special circumstances. His sentence was also partially suspended.
   
4. In relation to the offending, Mr Fifita and Mr Kopu had entered a Chinese store in Kolovai on the 11th January 2017 armed with machetes, and had stolen money and other items in the sum of about $7, 671.50. Mr Fifita had brandished a machete which he had concealed in a bag and had threatened the proprietor with it. Both he and Mr Kopu had been dropped off and picked up shortly after by the accused, Mr Fukofuka, who had driven the vehicle for several hours during which the men had, I found, contemplated robbery in several locations around Tongatapu before finally embarking upon the robbery. As I indicated, in my judgement relating to the verdicts, I am satisfied that Mr Fukofuka was heavily implicated in the robbery and indeed probably suggested the robbery of the Chinese store in Kolovai after other possibilities were not considered suitable. I was satisfied that he knew the others were armed with machetes which had been used, earlier to his knowledge, in other lawful activities by the men earlier that day. I am satisfied, as I have said, that he willingly participated in the events of the 11th January 2017 and was not in any way subject to intimidation or duress by the others. On his own admission in his probation report Mr Fukofuka was well versed in professional fighting and I considered that he was no “shrinking violet.” That said, I am satisfied that he did not enter the shop and I allow him some reduction in starting point from that of Mr Fifita.
   
5. In the sentencing of Mr Kopu I indicated that in my view a starting point of 8 and a half years was appropriate where machetes had been taken and used to extort money or property. Armed robbery carries a maximum sentence of 20 years imprisonment, and a greater starting point is appropriate when guns are used as weapons and or when injury is caused by the use of weapons. Thus, in Maikolo Fifita CR 109-11/ 15 the starting point I adopted was 10 years where the accused was one of three men who had pleaded guilty to an armed robbery of a Chinese store in Vava’u using a rifle as a weapon. There was no injury in that case, but in Sefo Moala Cr 166 of 2012 on a charge of attempted robbery where the prisoner had shot a service station employee in the leg I sentenced him to 9 years imprisonment. In this case, Mr Aho submitted that 8 and half years was appropriate and I propose to adopt this starting point. Although heavily implicated in the armed robbery, I allow Mr Fukofuka a reduction of 2 years imprisonment to reflect the fact that he did not enter the store and was found guilty by me of abetment. The principal sentencing rationales for this kind of offending is deterrence and protection of society, and sentences for armed robbery must reflect this.
   
6. I turn to the mitigation factors. In the case of Mr Fifita his probation report contains nothing that can be said to be positive about him. He is aged 34 and commenced his career in crime in about 2001 serving a sentence of imprisonment. That ended his formal education in Tonga. He travelled to New Zealand in 2003 but was deported from New Zealand in 2011 for serious offending, including aggravated burglary with a weapon for which he was imprisoned for five years and six months. Between 2003 and 2009 in New Zealand he committed 10 offences of various kinds mainly involving dishonesty and property damage. In Tonga, in recent years he has had convictions for housebreaking and has escaped from custody. He married in New Zealand and he has two children by that marriage. Much of his life has seen him engaged in criminal offending in Tonga and in New Zealand. He can truly be described as a recidivist. The only possible mitigating factor is the fact he apologized to the complainant for his actions and whilst he maintained his plea of innocence, at trial he in fact took little part in his defence and I formed the view that he accepted he was guilty of the offending, and really did not resist what was an inevitable conclusion. Like many offenders in his position and with his experience in criminal offending, I doubt whether, however, he truly is remorseful. However, I allow him 6 months discount for his apology as the only mitigating factor I can see in his case. The sentence I impose upon him for armed robbery is 8 years imprisonment backdated to the time he was remanded in custody on this charge. I consider there is no basis to suspend any part of his sentence. I do not see him as a person who is at all likely to be rehabilitated, and suspension as the Court of Appeal has emphasised in Mounga can only be granted on a principled basis. None of those principles are satisfied here.
   
7. In relation to Mr Fukofuka, he falls into a different category. He has only one conviction of any consequence and that relates to obtaining money by false pretences for which he received three months imprisonment in 2015. He is, perhaps, unfortunate that after escaping from prison Fifita and Kopu should have made their way to a residence where he was the caretaker. He should have desisted, however, in any plan to rob they may have suggested in order to secure money but instead of doing so he seems to have become a willing participant that day. He defended his case quite robustly but I rejected his defence that he was simply a victim of circumstance and was not an abetter of the robbery in Kolovai, as alleged.
   
8. His probation report indicates that he had a limited education assisting his father with fishing to maintain a large family of ten. He married in 1991 then migrated to America. He had seven children when married in Salt Lake city. He is a Morman. He has also about 9 illegitimate children, who all reside in America. He returned to Tonga in 2001 to look after his father who has recently died. He claimed to be a successful professional martial arts fighter in the US. He claimed to have earned a substantial income as a fisherman when he returned to Tonga. I very much doubt whether his income from fishing was substantial, however, at least at the time he participated in this offending. As I have said, I do not consider he was intimidated into participating by Fifita or Kopu who were smaller in size than he. Rather, I consider he participated, perhaps opportunistically in a venture which he saw as one from which he could derive some quick financial gain. He has indicated some remorse in his probation report and before me, and he says that he intends on his release to spend more time with his children in America now that his father has died. Whether he is able to do this in the light of this conviction remains to be seen. I am prepared to allow him 18 months discount for his apology or expression of remorse for becoming involved and more because he has little in the way of previous offences. He is now aged 48. The sentence of imprisonment I impose upon him is five years for abetment to armed robbery backdated to the date of his remand in custody in custody on this charge.
   
9. In Mr Fukofuka’s case, I consider there is good reason to suspend part of his sentence. He has little in the way of a criminal record and is aged 48. He seemed as the probation report indicated to be committed to assist others in his Morman church by providing fish when able to do so. It was probably for him very bad luck when Fifita and Kopu chose to make their way to him having escaped but he should not have joined or encouraged them in this robbery. He has shown some contrition for his participation. I consider that he is capable of rehabilitation and should be given a chance to do so.
   
10. I suspend the final 18 months of his sentence of imprisonment on the following conditions;
    
    1. He is not to commit any offences punishable by imprisonment for the period of his suspension;
       
    2. He is to live where directed by his probation officer and is under the supervision of probation for the period of his suspension.
       

11. He has been warned that a failure to abide by the conditions of his suspension may mean that he is ordered to return to prison to serve the suspended part of his sentence.

C. B. Cato
DATED: 8 FEBRUARY 2018 J U D G E