R v Ika [2022] TOSC 18; CR 65 of 2008 (13 April 2022)

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

CR 65 of 2008

REX

-v-
‘Alamoni Makafilia IKA

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Mr. J. Lutui, DPP for the Prosecution
Defendant in person
Date of Sentencing: 13 April 2022

Background

1. Mr. Makafilia appeared before me on a warrant.
2. He had pleaded guilty on arraignment to an indictment of two counts; house breaking and theft. This offence was committed on 1st December 2007 and he pleaded guilty on 28^th March 2008.

Offences

3. On night of 1^st December 2008 at approximately 2300 hrs he broke into Tau’olunga Computer shop in Fasi, Tongatapu.
4. To do this he removed a security cover to a window and then the lourves covering that window.
5. He stole two iPods a CD rack and an Apple remote control. The value of those goods was $1,660.00
6. He was caught by the police. The details of how that happened have not been made available.
7. Though, they recovered the most valuable items; the iPods.
8. He was arrested and interviewed and admitted the offences.
9. His pre sentence report sets out his antecedent history.
10. On 19^th May 2006 he was sentenced to 12 month’s imprisonment for unlawful entry into a building by night. The final 3 months were suspended for 1 year.
11. He then committed a further two offences.
12. In February 2007 an offence described in the report as “Found by night” for which he was fined $300, and this offence
13. The author of the pre-sentence report notes that put him in breach of the sentence imposed in May 2006. She also described him as being at a very high risk of reoffending.
14. I am afraid that was insightful.
15. Mr. Ika was sentenced to 7 year’s imprisonment in 2012 for conspiracy to commit armed robbery.
16. On 25^th February 2020 he was sentenced to 16 year’s imprisonment for armed robbery, grievous bodily harm and serious arson.
17. The statutory maximum sentences are 10 years and 7 years respectively.

Comparable sentences

18. R v Liku (Unreported, Supreme Court, CR 47/2019, 24^th May 2019. A sentence of 2 years for the house break and 3 months concurrent for theft electrical equipment including television, freezer and gaming equipment total value $13,900. A total sentence of 2 years’ imprisonment.
19. R v Malafu CR 133/20216; serious house breaking and theft were valuable and irreplicable heirlooms such as Togan mats with a value of in excess of $15000 were stolen a starting point of 3 ½ years was deemed appropriate.
20. R v Lakalaka (Unreported, Supreme Court, CR 118/2021 7^th September) I imposed 16 months for the house breaking and 10 months for the theft where $10,900 of computer equipment was stolen.
21. The aggravating features in the instant case are (i) this was a break in of a commercial premises, (ii) highly portable items, and (iii) theft of high value electronic equipment that can be readily sold on.

Sentence

22. Staring points are count 1, 12 months and count 2, 6 months, concurrent to count 1.
23. With the correct discount for his guilty plea, that becomes 8 months and 4 months concurrent.
24. I also re-sentence him to the 3 months that was suspended in his sentence imposed by the magistrates’ court 19^th May 2006.
25. Thus a total of 11 month’s imprisonment.

Suspension

26. I have considered whether, applying the criteria in Mo’unga [1998] Tonga LR 154 any part of that sentence should be suspended.
27. Given the breach of his suspended sentence, I conclude it should not.

Concurrent terms or consecutive and totality

28. I approach the question of concurrent or consecutive terms separately to the question of totality^[1]. Though these offences are in no way connected to the term he is currently serving, Hokafonu v Rex [2003] TOCA 3, so prima facie to be considered as consecutive sentences. But, given and the substantial terms he is already serving, I do not think it just to add to a term of 16 years so this sentence will be served concurrently so as to give proper regard to the totality principle.

Total

29. 11 month’s imprisonment to run concurrent to the term he is already serving.
    

NUKU’ALOFA N. J. Cooper

13 April 2022 J U D G E

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^[1] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610