R v Fanguna [2020] TOSC 103; CR 229 of 2020 (26 November 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 229 of 2020
REX -v- FEINGA KI HE LOTU FANGUNA

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Mrs Lui for the Prosecution The Accused in person
Date of sentence:	26 November 2020

The offence

1. On 23 October 2020, the Accused pleaded not guilty to one count of causing the importation of a .22 rifle without a licence and not guilty to the alternative count of unlawful importation of the rifle without an import licence, both in contravention of s.95(1) of the Customs and Excise Management Act (“the Act”). The Accused said that he had a licence for the importation of the rifle in question. The Prosecutor who appeared on that occasion indicated that the Crown had seen a copy of the licence but that the date of it was illegible.
2. The matter was therefore listed for trial today.

Change of plea

3. When the matter was called on for the trial today, Mrs Lui informed the Court that following a discussion with the Accused about the licence he had produced, the Accused wished to change his plea.
4. The Accused was then rearraigned and pleaded guilty to count one. He was therefore not required to replead to the alternative charge.

Crown submission

5. I enquired as to whether the Prosecution was prepared to proceed directly to sentencing. Mrs Lui said that she was. The maximum penalty prescribed by the section is a fine not exceeding $100,000 or imprisonment for 10 years or both. Mrs Lui recalled and referred to a decision of Cato J earlier this year, which involved similar circumstances to the present, in which a fine was imposed of $500. She submitted that that was also an appropriate penalty in this case.
6. After further discussion with Mrs Lui and the defendant, I was satisfied that it was appropriate to proceed with the sentencing.

Consideration

7. This was a case of ignorance and error, not one of wilful disregard of the law or a display of any overt criminal intent. The Defendant ordered the rifle from the United States earlier this year at a cost of US$250. He already had a licence for the importation of a separate .22 rifle. The consignment containing the rifle the subject of this proceeding arrived in Tonga on 4 April 2020. On 14 April 2020, he submitted an application for an import licence for the rifle. On 16 April 2020, the defendant sought to clear the rifle from Customs. His licence application was approved on 20 April 2020 but the licence was not issued to him until 23 April 2020. In the meantime, on 21 April 2020, he was arrested for this offence.
8. The Defendant has no previous convictions. He is married with three children aged 20, 16 and 14. He is employed primarily in farming his tax allotment and he also does some carving. His annual income is between $5,000 and $6,000. He expressed remorse at the mistake he had made and assured the court that it would never happen again. He asked for a month to pay the fine proposed by the Crown.
9. Mrs Lui also sought an order for forfeiture of the rifle. She submitted that the defendant could thereafter apply for a ‘possession licence’ from the police for the rifle. That possibility is not referred to anywhere within the Act. Mrs Lui was not able to provide any other authority or provision which supported that procedure. In my view, forfeiture of the rifle, bearing in mind its cost, in addition to the penalty submitted by the Crown would be an excessive punishment in the circumstances of the case.

Result

10. The defendant is convicted of causing the importation of prohibited goods (alternatively, importing restricted goods) and is sentenced to a fine of $500.
11. The fine is to be paid by 8 January 2021, in default, one month imprisonment.
12. If the fine is paid by that date, the rifle is to be released to the defendant.
13. If the fine is not paid by that date, then pursuant to s.108 of the Act, the Chief Executive Officer may order that the rifle be liable to forfeiture.
    

NUKU’ALOFA		M. H. Whitten QC
26 November 2020		LORD CHIEF JUSTICE