R v Manu [2019] TOSC 11; CR 152 of 2018 (25 January 2019)

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

CR 152 of 2018

BETWEEN: REX

Prosecution

AND: SIONE FAKALELEI VALUVALU MANU

Accused

BEFORE LORD CHIEF JUSTICE PAULSEN

Counsel: Mr. T. ‘Aho for the Prosecution

The Accused in person

Date of Hearing: 25 January 2019
Date of Sentencing: 25 January 2019

SENTENCING REMARKS

[1] Mr. Manu pleaded guilty upon arraignment to one count of Serious Arson contrary to ss.177(1) and (2) Criminal Offences Act. The particulars of the charge are that on 6 June 2018 at Fatai he did wilfully and without lawful justification set fire to a building belonging to Posi Hufanga.

[2] The accused appears for sentence today. The maximum penalty for this offence is 7 year imprisonment.

The facts

[3] On 6 June 2018, Mr. Manu picked up his wife from the hospital intending to return to their home at Fatai. He was intoxicated and they got into an argument. Mr. Manu then drove the car at high speed causing his wife to e afraid and exit the car when she was able. She sought refuge at a residence and refused Mr. Manu’s demands that she get back into the car. Mr. Manu then returned to their home at Fatai where he consumed more alcohol. Clearly angered by the events of the day and intoxicated he lit a match and threw it into a pile of clothes in the bedroom and then locked up the house and left to go to a nearby shop. When he returned the house was fully ablaze. He took no action to stop the fire and left again. He says that nothing could have been done to save the house and it was completely destroyed. I am advised that the house and its contents were worth TOP5000 and that the house was owned by the wife’s family. When arrested, Mr. Manu admitted the offences and as noted above he pleaded guilty when arraigned.

The material before me

[4] I have been provided with:

(a) A pre-sentence report;

(b) Written submissions from the Prosecution, including references to relevant authorities.

[5] I have also heard from Mr. ‘Aho and Mr. Manu.

Pre-sentence report

[6] Mr. Manu was 30 years old at the time of the offending. He is married with an 8 year old child. I am advised that he did not do well at school and left in the 5^th Form. For some years he worked at Pacific Timber but late last year he stopped working with that company. He tells me that he now has found work in construction. After the fire Mr. Manu and his wife moved to a property at Havelu and they are still together. Mr. Manu has previous convictions for minor offences that occurred many years ago which I do not regards as relevant for sentencing purposes except to the extent that were for drunkenness and an assault indicating that Mr. Manu has a drinking problem and difficulty coping with his anger.

[7] The pre-sentence report states that Mr. Manu has taken responsibility for his offending (which having heard from him today I accept) and that he has apologised to his wife’s family and that his apology has been accepted. He says he will rebuild the house that was destroyed. It is said that he is truly remorseful and his wife reports that since his arrest he has taken steps to improve himself. The pre-sentence report recommends that Mr. Manu undertake community work and be placed on probation and be required to undertake alcohol and drug awareness and anger management courses.

The Prosecution submissions

[8] In its written submissions, the Prosecution submits that there are both aggravating and mitigating factors relating to this offending. In terms of aggravating features it is said that the offending was premeditated and driven by anger, that a house and its contents were completely destroyed, that the accused could easily have stopped the fire at an early state and taken steps to halt the blaze upon his return from the shop, but did not do so.

[9] In terms of mitigation it is noted that Mr. Manu entered an early guilty plea, no one was hurt in the fire, the house and contents were of modest value and that Mr. Manu fully co-operated with the Police.

[10] The Prosecution also referred me to a number of authorities all of which I have read and on the basis of the authorities submits that the appropriate sentence is 2 years and 6 months imprisonment with the final 12 months suspended. However, as I shall come to Mr. ‘Aho did not take issue with the Court taking a more lenient approach in his oral presentation.

Discussion

[11] I regard Mr. Manu’s offending as very serious. Fuelled by alcohol and anger directed at his wife he made a decision to set fire to their house (which they did not own) in an entirely irrational, irresponsible, senseless and spiteful attempt to hurt his wife. Mr. Manu had no regard for the financial costs he was inflicting upon the owner of the house or the inconvenience he was going to cause his wife and daughter whoe possessions were entirely destroy.

[12] I accept that no one was in fact put at risk of injury and that this is an important factor that distinguishes this case from others I was referred to, namely R v Lao (CR 116/2016 Cato J) and Tui v R [2007] Tonga LR 135 (CA) and Latu (CR 40 of 2017, Cato J).

[13] Taking into account all the circumstances and based on the authorities, I adopt a starting point of 2 years and 6 months imprisonment for this offence.

[14] In terms of mitigating factors relevant to Mr. Manu, he is entitled to credit for his early guilty plea and I discount his sentence by 9 months for this. I also discount the sentence by a further 3 months to reflects his co-operation with the Police, his expressions of remorse (which I accept are genuine) and because he has made peace with the wife’s family. In the result, the sentence I impose is 1 year and 6 months imprisonment.

[15] It is accepted that it is appropriate to suspend some portion of the sentence (R v Mo’unga [1998] Tonga LR 154). The most difficult task I have faced in this case is in deciding whether to partially or fully suspended the custodial sentence. In my discussion today with Mr. ‘Aho he accepts that in this particular case the Court should be primarily concerned with assisting Mr. Manu to rehabilitate himself and that requiring him to serve a portion of the custodial sentence may not advance that object. A significant contributing factor in all of Mr. Manu’s prior offending is the consumption of alcohol and Mr. Manu has shown that when intoxicated he is unable to control his anger. I think he should be given assistance to deal with these issues in the expectation that an successfully doing so he is unlikely to reoffend. However I must also recognise that this is a serious crime and there should be some punitive aspect to Mr. Manu’s sentence. I consider it appropriate to fully suspend his sentence subject to conditions.

Results

[16] On the one count of arson Mr. Manu is convicted and sentenced to 1 year and 6 months imprisonment. I fully suspend the sentence on the following conditions:

(a) He is not to commit any offence punishable by imprisonment for the period of his suspension;

(b) He is placed on probation for the period of his suspension to live where directed by his Probation Officer;

(c) He shall undertake 80 hours community service on such days and during such hours as directed by his Probation Office and he shall report to the offices of the Probation Service prior to 4pm on Tuesday, 29 January 2019 to make arrangements for his first assignment; and

(d) He is not to consume alcohol or illicit drugs during the period of his suspension; and

(e) He is to undergo and successfully complete an anger management course and a course on drugs and alcohol abuse with an appropriate agency under the direction of his Probation Officer within 12 months.

[17] Mr. Manu has been warned that should be fail to comply with any of these conditions during his suspension he may be required to served out the balance of his sentence.

O.G. Paulsen

NUKU’ALOFA: 25 January 2019 LORD CHIEF JUSTICE