PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Tonga
You are here:  PacLII >> Databases >> Supreme Court of Tonga >> 2020 >> [2020] TOSC 15

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

R v Tu'ivakano [2020] TOSC 15; CR 7 of 2019 (24 April 2020)

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


CR 7 of 2019


REX

-v-

‘EIKI TU’IVAKANO a.k.a NGALUMOETUTULU KAHO


SENTENCING REMARKS



BEFORE:
LORD CHIEF JUSTICE WHITTEN
Counsel:
Mr J. Lutui with Mr T. ‘Aho for the Prosecution
Mr W. Edwards Snr SC with Mr Latu for the Defendant
Date of submissions:
14 April 2020, 16 April 2020, 17 April 2020 (oral)
Date of sentence:
24 April 2020

Introduction

  1. The trial of this matter commenced on 10 February 2020. The Defendant pleaded not guilty to ten counts on the indictment comprising:
  2. On 4 March 2020, during the course of his evidence, the Defendant was rearraigned on count 9 and pleaded guilty.
  3. On 6 March 2020, the Crown entered a nolle prosequi in respect of counts 1 to 6.
  4. On 9 March 2020, at the conclusion of the trial (of some 20 sitting days), the jury delivered verdicts of guilty on counts 7, 8 and 10.
  5. The Defendant was then remanded on bail pending sentence.
  6. Written submissions on sentence have been filed on behalf of the Crown and Defence and oral submissions were received on 17 April 2020. A presentence report was filed on 14 April 2020.

Facts

Count 7: making a false statement for the purpose of obtaining a passport

  1. The particulars of the charge were that on or about 17 July 2015, at Nuku’alofa, with the purpose of obtaining a passport for Hua Guo and Xing Liu, and with intent to deceive the Immigration Division of the Ministry of Foreign Affairs, the Defendant wrote a letter to the Immigration Division of the Ministry of Foreign Affairs, stating that Hua Guo and Xing Liu were naturalised as Tongans on 29 October 2014, and that he had reasonable cause to believe that statement was misleading.
  2. The circumstances leading to and surrounding the letter are as follows. In his evidence in chief, the Defendant explained that on the day in question, one Andre Manu, brought the two Chinese nationals to the Defendant's office in need of assistance with their application for passports because their initial approaches to the Immigration Office had been declined. When he saw them, the Defendant said he realised that he had administered their oaths of allegiance on 29 October 2014.
  3. The letter the subject of this count dated 17 July 2015[1] contained the following:
"I wish to confirm that during my tenure as Prime Minister 2010-2014 Mr Hua Guo and Ms Xing Liu were naturalised as Tongans on the 29 October 2014. Mr Singkei Lou and Ms Xing Liu have lost their passports twice and my staff during my time as Prime Minister issued the second passport and this is the third time they have lost their passport due to theft.
I should be most grateful if the Immigration Tonga could kindly facilitate Hua Guo and Xing Liu with their passports to enable them to travel abroad to import building materials to complete their business that was used to be Shooters Nite Club on Vuna Road.
Should you have any requirements please feel free to contact my office."
  1. In fact, as exhibits D1 and 2 at the trial revealed, the persons naturalised that day were Singkei Lou and Shanoi Kam.
  2. In cross-examination, the Defendant initially said that Andre Manu provided the names but later said that the Chinese couple provided their names. When asked about the preparation of the letter, the Defendant said it was prepared by a clerk by the name of Gloria Poleo but that a personal assistant typed the letter. When questioned about the dates of naturalization, the Defendant said that he directed that searches be undertaken of the Prime Minister’s office. He said he did not look at the certificates of naturalization when he drafted the letter.
  3. The Defendant said that he read the letter before he signed it, and that he believed the names referred to in the letter were that of the Chinese couple. He said that he understood that his letter was going to be supporting applications for passports for Hua Guo and Xing Liu, that applications for passports were very important documents and that any supporting letter must provide information in a proper way, not just from appearances.
  4. At this juncture, it is relevant to note that by s.21(5) of the Act deems any person who signs a statement to know its contents.
  5. Ultimately, the Defendant accepted that the names recorded in the first sentence of his letter were incorrect. The genders of the respective titles were also incorrect.
  6. Viliami Lolohea gave evidence that he did not accept the applications in the names of Hua Guo and Xing Liu because, among other things, they were incomplete, he identified from photographs that they were the same persons as Singkei Lou and Shanoi Kam and the respective dates of birth were different.

Count 8: perjury

  1. The particulars of this charge were that, on or about 21 December 2015, in Nuku’alofa, the Defendant made an oath in an affidavit a material statement to his knowledge, when in paragraphs 6 and 7 of that affidavit he stated that “Mr Huo\a Guo and Ms Xing Liu were naturalised during my tenure as the Minister of Foreign Affairs of the Ministry” and “after naturalisation Tongan passports were then issued to these two”, and he knew those statements were false.
  2. The affidavit which is the subject of this count[2] was sworn by the Defendant on 21 December 2015. It was prepared for Magistrates Court proceedings CR 432 of 2015. At paragraphs 6 and 7, the Defendant deposed:
"6. I recall that Mr Hua Guo and Ms Xing Liu were naturalised during my tenure as Minister of Foreign Affairs of the Ministry.
7. After naturalisation Tongan passports were then issued to these two."
  1. For context, the following paragraphs of the affidavit are instructive:
"8. In July this year while being in office as Speaker of the Legislative Assembly I wrote a letter on 17 July 2015 to the Immigration Officer at the Immigration Department to check these Chinese individuals' record and carry out work on their Passport application.
9. I understand that the Police contacted this Officer Viliami Lolohea who had started working as an Immigration officer in December 2014 informed the Police that these two individuals had no naturalisation file. Unfortunately he is not a reliable person who resigned from the Department and went to work in Fiji and was dismissed from there returning to work in Tonga at the Ministry of Education.
10. From my memory of this person I did not want him to return to the Ministry as he had a case and is not reliable but unfortunately he was eventually employed in the Ministry after the General Election and the Election of the New Government."
  1. At paragraph 13, the Defendant exhibited his letter to the Immigration Department dated 17 July 2015. Paragraphs 14 to 16 addressed concerns about the lawfulness of the search undertaken by the Police on 18 December 2015, as a result of which, they seized various items from the Defendant's office at the Legislative Assembly. At paragraph 17, he requested that the said search warrant be cancelled. At paragraph 18, he requested that the seized items be returned to his office. At paragraph 19, he asserted that it was "not lawful to execute a search at a residence or office of the Speaker of the Legislative Assembly without prior notice of the items that are stolen or the items that are lost but that are hidden." The Defendant then stated:
"... This is because of the sensitiveness of the position held by the Speaker of the Legislative Assembly especially for someone who had the full authority over the Passports."
  1. In his evidence in chief, the Defendant said that the affidavit had been prepared by a clerk of the House by the name of Gloria Pohelo and that he did not read it before signing it and initialing each page. At one stage in his evidence, the Defendant said that he gave Gloria the information for the affidavit, but at another, he said that it was based on information provided by Andre Manu. The Defendant said that he believed the statement in paragraph 6 of his affidavit was true as the Chinese couple named there was the same as those he saw the day of his letter on 17 July 2015.

Counts 9 and 10: firearms offences

  1. The particulars of these charges were that on or about 1 March 2018, at Nuku’alofa, the Defendant possessed, without a licence, a .22 rifle and 212 pieces of ammunition.
  2. During the execution of a search warrant at the Defendant’s residence, the Defendant told police officers that he had a .22 firearm and ammunition and no licence for them. He directed the officers to the boot of a vehicle owned by Mr Sika, a friend of the Defendant’s. There, the police found, relevantly, a .22 rifle and a total of 212 rounds of ammunition in a large box. The Defendant had a licence for the rifle for 2016. He maintained that he had renewed the licence for 2017, and around December that year, gave it to his driver to have renewed. The 2017 licence was never produced in evidence, nor was there any record in the relevant registers of a licence having been issued for 2017.
  3. The Defendant gave evidence that the ammunition belonged to his son, a Major in His Majesty’s Armed Forces. After an appropriate warning, his son gave evidence to that effect. When the son returned the rifle with ammunition, which he said belonged to HMAF, to the Defendant’s house after training, the Defendant told him to put them in the boot of the said vehicle.

Submissions

Crown

  1. The Crown submits the following as aggravating features:
  2. On the firearms offences, the Crown submits that the Defendant should receive an appropriate punishment that deters other members of society from similar conduct.
  3. The Crown submits the following as mitigating features:
  4. The Crown relies on the following decisions as comparable sentences.
  5. R v Kaumavae & anors [2016] Tonga LR 456 - a case involving four accused. ‘Ahohako pleaded guilty to one count of making a false declaration for the purpose of obtaining a passport. Kaumavae pleaded guilty to one count of forgery. Heleta pleaded guilty to one count of causing to be made a false statement for the purpose of obtaining a passport. Tameifuna pleaded guilty to obtaining a passport by making a false statement. All four were involved in various ways in seeking to obtain a false passport in the name of Connor James Tameifuna at the request of a third party. The third party had approached ‘Ahohako who was his friend and a long serving clerk at the Magistrate’s Court, to assist him to obtain a passport. ‘Ahohako declared on the passport application form that he knew the applicant Connor James Tameifuna for 25 years when in fact he had not. ‘Ahohako subsequently approached Kaumavae who at the time of the offending was employed as a Public Servant in the Ministry of Justice, to obtain a false birth certificate which he did by forging the birth certificate. Heleta was residing with Tameifuna and instructed her to write a letter to Immigration to confirm that she was the mother of the Applicant, and the details to be put in the letter. She obliged and wrote the letter to Immigration Tonga in support of the application where she confirmed that the Applicant was her illegitimate son when she knew that the Applicant was not her son. Cato J considered that ‘Ahohako and Kaumavae seriously abused their positions of trust as public servants. His Honour also considered, as aggravating factors, that the actions of the Defendants undermined the capacity of Government to administer passports and the Passport Act and obstructed the proper regulation of movement of people into and out of Tonga and its treaty obligations in that respect. Cato J stated that for a single episode of offending such as arose in this case, the starting point should be three years imprisonment. However, an offender who indulged repeatedly in such activity for profit or who corrupted others by repeatedly inveigling them into such schemes could expect a higher starting point. He considered that the starting point must reflect the seriousness of the offending, be an adequate deterrent and be protective of the integrity of the Tongan Passport regime. His Honour added a year to ‘Ahohako’s starting point for the gross breach of trust as a public servant of several years standing, making the overall starting point 4 years imprisonment. For his guilty plea, remorse, good previous record and co-operation, that starting point was reduced by 15 months, resulting in a sentence of two years and nine months imprisonment. The final 12 months of his sentence were suspended. The starting points for Heleta and Tameifuna were set at three years’ imprisonment. Heleta did not appear to show any genuine remorse. He had a previous conviction for manslaughter by negligence. He was allowed 9 months discount for his early guilty plea, thereby reducing his sentence to 2 years and 3 months imprisonment. The last 12 months of his sentence was suspended. Tameifuna received a discount for her guilty plea, remorse, and previous good character including community work of 12 months, thereby resulting in a sentence of two years imprisonment. A plea for full suspension in her case was rejected[3] by Cato J who opined that:
“[20] ... offending against the passports regime of the kind [Tameifuna] participated in should generally carry some period of actual custody....”
  1. R v Tuitalikitai Afuha’amango (Unreported, Supreme Court, CR 52 of 2017, 28 July 2017) - The Defendant was the ringleader of and had corrupted the four individuals sentenced in Kaumavae & Ors, ibid. He pleaded guilty to forgery, knowingly dealing with a forged document, and making a false declaration for the purpose of obtaining a passport. He was a first-time offender. On the count of making a false declaration for the purpose of obtaining a passport, the Defendant was sentenced to three years imprisonment with the final 12 months suspended on conditions.
  2. R v Uluilakepa [1999] Tonga LR 166 (CA) - The respondent pleaded guilty on arraignment to perjury in stating on oath that he was the heir to his father’s tax allotment knowing full well that such statement was false. Finnigan J discharged the respondent without a conviction. The Court of Appeal allowed the Crown’s appeal against sentence and substituted a fine of $1,000. Their Honours observed:
“Perjury has long been recognised as a very serious offence, as is indicated by the maximum sentence of seven years imprisonment. It strikes at the very foundation of Tonga’s judicial system and at the administration of justice. Persons who commit perjury usually do so to mislead a court into giving a wrong decision, or, as here, to cause a wrong administrative decision to be made. The consequence of giving false evidence or making a false affidavit can be far reaching and serious. Where a case of deliberate lying on oath has been established it must be met with a stern response. The Court is bound to impose a penalty that marks the seriousness of the offence and will act as a strong deterrent to others minded to give false statements on oath. The Court will normally be considering a sentence of imprisonment. It is only where there are significant mitigating factors that a non-custodial sentence will be appropriate.”
  1. R v Lord Tu’ilakepa (Unreported, Supreme Court, CR 172 of 2014) - The Defendant pleaded guilty to possession of a number of unlicensed firearms and hundreds of rounds of various ammunition. He was of good character, 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 died. Cato J noted that this was not a case where the firearms had been associated with a criminal enterprise or obtained for trafficking purposes. His Honour imposed cumulative fines of $2,000 on each count, resulting in an overall penalty of $10,000.
  2. R v Tu’iha’ateiho [2015] Tonga LR 45 - The Defendant was found guilty of one count of possession of .22 semi-automatic pistol without a licence. Lord Tu’iha’ateiho was a man of good character, a Noble, a member of Parliament, and a first-time offender. The firearm was considered to only be for protection. He was fined $2,500 to be paid within two months or, in default, three months imprisonment. The firearm was forfeited.
  3. Here, on sentence, the Crown submits that:
  4. The Crown submits that the Defendant is eligible for a partially suspended sentence pursuant to s.24(3) of the Criminal Offences Act and the principles in Mo’unga v Rex [1998] Tonga LR 154.
  5. During oral submissions, Mr Lutui submitted that:

Loss of rights upon conviction, etc.

Any holder of any hereditary estate convicted of a criminal offence and sentenced to imprisonment for more than two years ... shall as from the date of such conviction ... cease to hold such title and the estate.

Provided that the operation of this section and sections 30, 38(1), 40, and 41(b) and (h) shall be suspended in any case until the expiration of 42 days after the date of sentencing; and in cases where notice of appeal or leave to appeal is given within 42 days after the date of sentencing, until the determination of the appeal; and if the conviction is quashed on appeal or the sentence reduced to no more than 2 years imprisonment then the relevant provisions of those sections shall not have effect.

(h) similarly, clause 23 of the Constitution provides:

Disabilities of convict

No person having been convicted of a criminal offence and sentenced to imprisonment for more than two years, shall hold any office under the Government whether of emolument or honour nor shall he be qualified to vote for nor to be elected a representative of the Legislative Assembly unless he has received from the King a pardon together with a declaration that he is freed from the disabilities to which he would otherwise be subject under the provisions of this clause:

Provided that the operation of this clause shall be suspended in any case until the expiration of 42 days after the date of the conviction; and in cases where notice of appeal or leave to appeal is given within 42 days after the date of conviction, until the determination of the appeal; and if the conviction is quashed on appeal or the sentence reduced to no more than 2 years imprisonment then this clause shall not have effect.

(i) notwithstanding, the Crown maintained its revised submissions on the head sentence, in effect submitting, that the potential ramifications for the Defendant (particularly of a sentence greater than two years) should not influence the sentences.

Defendant

  1. Mr Lutui took objection to the accuracy, contextual precision, characterisation and/or relevance of a number of Mr Edwards’ written submissions.[5] Suffice to say, I agree with the majority of Mr Lutui’s criticisms and Mr Edwards did not seek to refute them.
  2. Otherwise, a somewhat remarkable feature of a significant part of Mr Edwards’ submissions, both written and oral, was his, at times, less than subtle devotion to casting doubt on one or more elements of the charges on which the jury found the Defendant guilty.
  3. For instance, in relation to count 7, he wrote [22] that “there were no facts to support intention to deceive or mislead...”.
  4. In relation to count 8, he submitted that:
  5. Generally, Mr Edwards submitted that the verdict on the dishonesty offences “could have gone either way”.
  6. Otherwise, and less surprisingly, the submissions sought to diminish the seriousness of the offences by describing for instance [21] the offending in count 7 as “borderline” and [23] “highly technical”; and on count 8, that [43] the nature of the offence bordered on “triviality”.
  7. During his oral submissions, Mr Edwards sought to distinguish the offending in Kaumavae from the instant case. He described the offending of Tameifuna in Kaumavae as involving ‘deliberate lying’, whereas here, the Defendant, he submitted, was merely confused as to the names being used by the Chinese nationals such that any motivation or knowledge on the part of the Defendant reflected a much lower degree of criminality. Further, Mr Edwards submitted that “compromising the passport system was not in the Defendant’s mind”.
  8. On the firearms offences, focus was cast on the involvement of the Defendant’s son and the unfulfilled instruction by the Defendant to his driver to have his firearm licence renewed in early 2018. In that latter regard, a brief of evidence said to be from the Defendant’s driver was attached to Mr Edwards’ written submissions. No evidence was called from the driver at trial (although as Mr Edwards explained, by then, the Defendant had decided to plead guilty to count 9) and the statement was unsworn.
  9. Eight letters of reference were submitted in support of the Defendant from former Ministers, high church officials, and district and town officers. It is unnecessary to set out here the various glowing testimonies therein as they are largely recited or paraphrased in the presentence report. Suffice to say, the Defendant is and has been highly regarded by a significant section of Tongan society.
  10. In relation to mitigation, Mr Edwards submitted that the Defendant:
  11. In 2013, the Defendant suffered a heart attack and underwent surgery. A report by Dr Sione Latu, Specialist and Royal Physician at Vaiola Hospital, dated 16 April 2020, listed a history of some six medical conditions ranging from the coronary heart disease to osteoarthritis in the Defendant’s right knee. Dr Latu described the Defendant’s cardiac status as “deemed stable with last assessment last year” although that last assessment in August 2019 revealed a dilated aortic root requiring CT scan surveillance every nine to 12 months.
  12. Mr Edwards submitted that the nature of the offending in this case does not call for a deterrent or punitive sentence. He supported and echoed the sentiments expressed in the presentence report, which he described as recommending community service. As will be seen, the report primarily recommends that any custodial sentence be fully suspended.
  13. No other comparative sentences were proffered, although Mr Edwards was at pains to caution the court against slavishly following any comparative sentences without due regard to the specific circumstances of the instant case.
  14. As to appropriate sentence, Mr Edwards submitted:

Presentence report

  1. The presentence report records, among other things, the results of interviews conducted by the author with some 11 respondents, who included town officers, an ambassador, ex-Ministers and church leaders.
  2. The report describes the Defendant’s personal and family history and education in positive terms. He is said to be a devout Christian and a prominent member of the Free Church of Tonga. He holds a number of important positions in that congregation and provides significant support.
  3. Mr Edwards drew particular attention to the remarks of Dr ‘Ana Taufe’ulungaki, the previous Minister of Education in 2010 to 2014 which are referred to in the report along with her more fulsome letter of support which was submitted, where she stated that:
“...in my four years in government, under Lord Tu'ivakano’s Prime Ministership, I have never once doubted his integrity, honesty, commitment to good governance, accountability, and the rule of law or his deep compassion for the people of Tonga and their welfare."
  1. The Defendant’s version of the offences was reported as follows:
“He said the Chinese passport applicants were foreign investors interested in purchasing shares from the Tonga Development Bank with the National benefit to be obtained from lowering loan interest fees to small businesses in fishing and agricultural sector. He explained his version of the offence and exactly what has been contested in trial which unsuccessfully received conviction by the jury. He said he has learned to accept the court results through prayers and family support. He shared to the report writer that throughout his political career, all he has ever done is help the people and never for a moment has he sought any wrongful benefit for himself. Apart from the conviction mark on his name, it is his title’s reputation that has been morally downgraded since his opposing political party claimed that he was involved in a "sale of passport scandal" followed by the search and seizure and him being detained in police custody for two days. Despite no proof of this "sale of passports" which he says is politically motivated, he has been labelled and negatively expressed in the media which has also affected his family and community's reputation. It is his hope that his community and family will not lose confidence in him as a result of this case and that it will not impede the development efforts already in place."
  1. In the summary to the report, the author wrote:
"[The Defendant] is 68 years old, a devout Christian, prominent chief and father to 6 children including a youngest teenager who still relies on him for financial support. Despite being born to aristocracy with privileges, he had a humble upbringing with experiences no different to commoners or people in his community. This is likely why he remains close to his "kainga" - people in his estate community, and his motivation to help those in need.
(The Defendant) is the head of four large communities of his estate in Nukunuku, Matahau, Matafonua and Vaotu’u. He also holds important positions in his Church as Senior Trustee member of their Committee of Trustees. Politically he has extensive experience as the Speaker and was elected as Premier from 2010-2014. He is currently a Member of Parliament as an elected representative of the nobles for Tongatapu. His contribution to the development of community, church and Tongan people in general, is countless. The surveyed respondents were all praises and report no illegal/dishonest behavior from him, rather a trustworthy, honest and reliable man.
There is concern regarding his health status as he has a heart condition that needs serious consideration for his sentencing."
  1. The probation office assessed the risk of the Defendant reoffending as "low" and elsewhere that he posed no risk of reoffending. The author opined that in light of the Defendant’s low risk assessment results, character attestations, health status, contributions to the development of the country and critical positions he holds in the community, any custodial sentence should be fully suspended.
  2. Finally, reference was also made to s.37 of the Land Act in respect of which the author said:
“There is fear of chaos and destruction to his community should that happen, also affecting the development endeavours already in place. A community sentence is preferable and would certainly benefit the community.”

Dishonesty offences

  1. Mr Edwards submitted that, in his view, of late, the objects of punishment, deterrence and rehabilitation had not been reflected in some sentences of this court.
  2. Whilst I cannot agree with Mr Edwards’ unspecified purported criticisms, lest there be any doubt, I hereby stipulate that my approach to the sentence in the instant case is to give effect to and balance the recognised rationale for sentencing including the punishment of offenders, the reduction of crime (including by deterrence), the reform and rehabilitation of offenders, the protection of the public, and (although not directly relevant here) the making of reparation by offenders to persons affected by their offences.[6]
  3. Further, I adhere to the principle of parsimony or frugality in punishment, i.e. in all cases, the lowest sufficient punishment should be chosen. I also seek to reflect in this decision the principle of equality before the law. There is long-standing precedent that offenders with wealth should not be allowed to buy themselves out of prison by paying large fines or compensation: e.g. Marwick (1953) 37 Cr App R 125. Equality before the law at the sentencing stage is assured if the proportionality principle is applied throughout.
  4. While it is certainly true that the severity of the penalty for an offence involving dishonesty will almost always be directly proportional to the amount of harm, damage, injury or loss occasioned by the dishonest conduct, the dishonest conduct itself will often be scrutinised, for some offences, to determine the level of culpability attaching to the offender, and hence the extent to which the dishonesty aggravates at sentence: e.g. R v Einfeld [2009] NSWSC 119 at [75].[7]
  5. At this point, it is also important to emphasise that, contrary to the effect of a number of Mr Edwards’ submissions, this Court must give effect to the jury’s verdicts.

Starting point

Count 7: Making a false statement for the purpose of obtaining a passport

  1. The relevant provisions of the Passport Act are as follows:

21 Offences

(1) Any person who —

(a) for the purpose of obtaining for himself or for any other person, any passport or certificate of identity, or other advantage under this Act with intent to deceive, makes or causes to be made any declaration, return or statement which he knows or has reasonable cause to believe to be false or misleading;

...

shall be guilty of an offence against this Act.

22 General penalty

Any person guilty of an offence against this Act for which no special penalty is provided shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 10 years or to both.

  1. I respectfully derive and adopt the following from statements of the Western Australian and New South Wales Courts of Appeal. The reliability of the passport system is valuable and the integrity must be maintained. The reliability and integrity of the passport system is not just of domestic concern but significantly is of international concern to [Tonga] which obviously has international obligations.[8] It is clearly contrary to Tonga’s interests and perhaps even security for people to make false passport applications or to assist others in doing so.[9]
  2. While I accept, generally, the Crown’s submission that the offending in count 7 potentially [my insertion] impugned the very integrity of the passport regime which is fundamental to the administration of Tongan passports to be used as evidence of identity and nationality of Tongan subjects travelling internationally and potentially undermined the capacity of Government to administer passports and the Passport Act, I do not consider the offending here to be as serious as that considered by Cato J in Kaumavaei, even that of the Defendant there, Ms Tameifuna.
  3. Here, there was no evidence of any plan or illegal enterprise to bring about the issuing of illegitimate passports. In fact, due to the diligence of the Immigration Department personnel, who realised that the same Chinese couple were applying for passports under different names, the Defendant’s letter was not effective in manifesting or contributing to the manifestation of any illegitimate passports.
  4. Further, in the present case, the uncontradicted evidence was that the Chinese nationals were presented to the Defendant by Andre Manu seeking assistance on their passport applications which had to that point been unsuccessful. The Defendant enlisted his staff to undertake checks and draft the relevant letter, which, on the same day, he then signed in his then capacity as Speaker of the Legislative Assembly.
  5. Having regard to those distinctions, the statutorily prescribed maximum penalty of, inter alia, ten years imprisonment and the comparative sentence in Tuitalikitai Afuha’amango, I consider that an appropriate starting point for the offending on this count is two years imprisonment.
  6. However, I also agree with the Crown’s submission that an uplift on that starting point is appropriate for the Defendant’s breach of trust in issuing the erroneous letter in his then Parliamentary position as Speaker of the Legislative Assembly. I also take into account that the relevant statement in the Defendant’s letter related to earlier events in which he was directly involved as Minister of Foreign Affairs. As he stated in his affidavit the subject of count 8 (discussed below), the Defendant was, at the relevant time, “responsible for all matters concerning passports” in the Kingdom.
  7. In my view, an appropriate uplift or premium for those matters is one year, making a total starting point for this count of three years imprisonment.

Count 8: Perjury

  1. Section 63 of Criminal Offences Act provides, relevantly:

Perjury

(1) Perjury is the making by any person upon oath or affirmation, either in a judicial proceeding or in any affidavit or solemn declaration, of any material statement relating to a matter of fact, opinion, belief or knowledge which the person making such statement knows to be false.

...

(3) Every person who commits perjury or counsels or procures a person to commit any perjury which is actually committed shall be liable to imprisonment for any period not exceeding 7 years.

  1. Lying under oath and making false declarations have traditionally been seen as among the most serious offences "striking at the very heart of the administration of justice". These offences are often difficult to detect either forensically or within judicial proceedings. A custodial sentence will always be within range in the interests of deterrence: see, for example, Morgan (1995) 82 A Crim R 518; R v Dodd [1985] 2 Qd R 277 and Uluilakepa, referred to in the Crown’s submissions above.
  2. In Einfeld, ibid, James J of the Supreme Court of New South Wales said:
"As has often been said, each of the offences of perjury and perverting the course of justice strikes at the heart of the administration of justice. These offences are often referred to as offences against public justice. In sentencing for these offences there is a special need to give effect to the purposes of sentencing of general deterrence and denunciation. ... In the case of perjury a full-time custodial sentence should be imposed, unless there are very special circumstances ..."
  1. Further, perjury offences which involve public officials in positions of trust tend to attract significantly harsher penalties: e.g. Smith [2000] QCA 390; (2000) 116 A Crim R 447.
  2. In my view, any guidance from the revised sentence in Uluilakepa of a $1,000 fine is inapposite here.
  3. The relative criminality or seriousness of offending on this count assumes a different complexion to that of count 7. While it may be said that this count merely involved a recitation of the impugned statements in count 7, in a later affidavit, and that therefore given the lower statutory maximum should attract a lesser penalty, any attenuating features of the offending in count 7 were not necessarily present when the Defendant swore the affidavit the subject of count 8.
  4. For instance, the intervening period of some five months presented an opportunity to check the accuracy of the facts stated in paragraphs 6 and 7 of the affidavit. Further, whereas the letter in count 7 was said to have been produced for the sole purpose of assisting the Chinese nationals, the affidavit in count 8 was prepared for the purpose of court proceedings where the Defendant applied to have a search warrant set side and various items seized from his office returned. It may also be inferred that he evidently sought to persuade the Magistrates Court that his earlier letter was exculpatory in respect of the police investigation into bribery allegations for passports then underway. In addition, the Defendant’s then position as Speaker of the Legislative Assembly and previous positions of high office must, in my view, have instilled in him an appreciation of the gravity of ensuring that any affidavit he swore contained nothing but verifiable truths.
  5. In that light, I consider the comparative seriousness of offending between counts 7 and 8 to be on par, and that notwithstanding the modest differential in statutory maximum penalty (10 years vs seven), the appropriate effective sentence for the perjury here should, as the Crown contended, also be two years imprisonment.

Mitigation

  1. The Defendant maintained his not guilty pleas on counts 7, 8 and 10 to verdict.
  2. I am ambivalent about whether the Defendant has shown remorse given the manner in which he has reportedly viewed the jury’s verdict.
  3. However, I do take into account the following demonstrated circumstances in mitigation:
“An offender's serious medical condition might enable a court as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate.”
  1. I also take into consideration the potential ramifications of s.37 of the Land Act, clause 23 of the Constitution and, I add, s.386 of the Companies Act by which the Defendant may be barred from being a director or otherwise being involved in the management of a company for a period of five years post-conviction. I consider these matters not as any basis for unequal treatment, but as relevant considerations in ensuring that the impact of the overall sentences to be imposed is not disproportionate to the offending for which the Defendant is to be sentenced.
  2. In consequence of all those matters, I reduce the head sentence on count 7 of three years by one year. That results in an effective sentence of two years imprisonment on each of counts 7 and 8, to be served concurrently.
  3. As discussed with counsel during oral submissions, consideration was given to imposing a fine on count 7 as well as the term of imprisonment which is provided by the words in the section “or both”. Counsel were not aware of any previous comparable decision in which both had been imposed. In Seluini v Rex [2010] TOCA 4, on a conviction for perjury, Shuster J sentenced the offender there to 30 months in prison, suspended for 3 years, and fined him $10,000.[10]
  4. However, in the absence of any guiding authority on the circumstances in which the imposition of a term of imprisonment and a fine may be appropriate, I do not consider this case a suitable one for such a sentence. Without being required, or wishing, to lay down any rigid principle on the topic, I incline to the view that at least one circumstance in which such a course may be appropriate is where there is some commercial or financial element to the dishonest offending which would warrant the superadded penalty of a fine in response. With the Crown’s decision here not to pursue the bribery and money laundering charges, any potential for that element on counts 7 and 8 disappeared.

Suspension

  1. In considering whether to suspend all or part of the sentence, the Court is obliged to have regard to the interests of the Defendant and the interests of the wider community in his rehabilitation: Rex v Tau'alupe [2018] TOCA 3 at [15].
  2. The guiding principles on this issue, from Mo’unga v R [1998] Tonga LR 154, are well known. A suspended sentence is intended to have a strong deterrent effect, so that if the offender is incapable of responding to a deterrent, it should not be imposed. The circumstances in which a suspension of sentence may be appropriate include:
  3. Apart from the last, here, all other considerations fall in favour of suspension. The Defendant has been free of criminal activity all his life. In my view, he is well and truly capable of responding to the deterrent and rehabilitating himself. Despite the gravity of the dishonesty offences, there is some diminution of culpability in the lack of premeditation and the extent to which the Defendant actually read the two documents the subject of those counts. While the latter cannot be considered as exculpatory, it does bear on the level of culpability.
  4. I accept the Crown’s submissions that offending against the passports regime should generally carry some period of actual custody and that, in relation to perjury, a non-custodial sentence will only be appropriate where there are significant mitigating factors.[11] However, I consider that the circumstances of this case, namely, the comparatively low level of offending, the absence of any illegitimate passport having been issued, the Defendant’s previous long and exceptional record of service to the community, and his medical conditions, warrant suspension of the two year prison sentence in full.
  5. That suspension will be subject to conditions, set out below, including 100 hours community service.

Firearms offences

  1. Section 4 of the Arms and Ammunition Act provides, relevantly:

Possession of arms and ammunition prohibited except under licence

(1) No person shall possess, use or carry any arm or ammunition except under a licence in respect of each arm and such ammunition so possessed, used or carried and in accordance with the prescribed conditions of such licence.

(2) Any person who shall possess, use or carry any arm or ammunition without such licence shall be guilty of an offence and shall be liable on conviction in respect of every such arm or the total amount of ammunition so possessed, used or carried —

(a) ...

(b) if the offence was committed elsewhere, to imprisonment for a term not exceeding 5 years.

  1. Pursuant to s. 30 of the Criminal Offences Act, I consider it appropriate to impose fines for counts 9 and 10 rather than any terms of imprisonment. That approach was not objected to by the Crown during oral submissions and is, in fact, consistent with the comparative decisions advanced by the Crown in Tu’ilakepa and Tu’iha’ateiho as well as the Defence submissions.
  2. Having regard to the circumstances of the offending, and the previous decisions referred to, an appropriate starting amount is $2,500 on each count. I note that that sum was ordered by Cato J in Tu’iha’ateihoi in 2015, some five years ago.
  3. However, I reduce that sum by $500 on each count for the following reasons:
  4. The result is therefore a fine of $2,000, on each of those counts, making a total of $4,000. The total amount is to be paid within three months, in default, the Defendant is to serve two month’s imprisonment.

Result

  1. The Defendant is convicted and sentenced as follows:
NUKU’ALOFA
M.H. Whitten QC
24 April 2020
LORD CHIEF JUSTICE

[1] Exhibit P 49

[2] English version exhibit P 68.

[3] Although, due to a bipolar disorder, she was ordered pursuant to the Mental Health Act to be remanded in the psychiatric ward of the Vaiola Hospital.

[4] As to the automatic nature of which, see Veikune v Kingdom of Tonga [2007] Tonga LR 284.

[5] Paragraphs 6, 10, 19, 20, 21, 23, 34, 37 to 44, 54 to 56, 65, 66, 91, 92.

[6] As discussed in “Sentencing in Criminal Justice” by Andrew Ashworth, Cambridge Press, 5th edition, section 3.3.1 referring to section 142 of the UK Criminal Justice Act 2003.

[7] Referred to in “Principles of Sentencing” by Geraldine McKenzie and Nigel Stobbs, The Federation Press, 2010.

[8] Pinkstone v The Queen [2000] WASCA 228.

[9] Clarkson v Regina [2007] NSWCCA 70.

[10] Although the conviction and sentence were quashed on appeal.

[11] A custodial sentence has in fact been imposed.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/to/cases/TOSC/2020/15.html