R v Ma'u [2022] TOSC 19; CR 97 of 2010 (12 April 2022)

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

CR 97 of 2010

REX

-v-
Pita MA’U

SENTENCING REMARKS

BEFORE : THE HONOURABLE COOPER J
Counsel : Mr. J. Lutui, DPP for the Prosecution
Defendant in person
Date of Sentencing: 12 April 2022

1. The defendant is before the court having failed to attend for his arraignment in 2010 and not until he was arrested on the warrant was he produced before the court and on 28^th October 2021 he pleaded guilty to the three counts on the indictment.
2. Those are common assault, possession of illicit drugs, cultivation of drugs.

The offences

3. On 13^th March 2010 there was an incident when the defendant lived with a former wife, ‘Ilisapesi Ma’u. He got into an argument with her.
4. The summary of facts indicates that a request for his assistance, a request to assist so as to help their children led him to become abusive and then he beat her with his fists and threw a chair at her and threatened to kill her.
5. The specific detail of the attack is that he punched her eye and then punched her over her body while threatening to kill her, before hitting her hand with a rock.
6. There are no details before me of the injuries she sustained. Nor, given the lapse in time, has Miss’ Ilisapesi Siale Ma’u been able to be traced so as to provide a victim impact statement. The only other detail I know is that she was 26 years old at the time.
7. The other counts on the indictment relate to his having some cannabis with him at that time that he had hidden in their home. His wife became aware of leaves hidden under a bed in their home and became suspicious then searched their garden where she found a small plant growing in dustbin.
8. The attack on his wife led her to contact a family friend and word got back to her father and the police became involved and Mr. Ma’u was arrested for the assault and the drug offences. He was interviewed and admitted the offences, all that same day as the attack.
9. He therefore falls to be sentenced for an offence in count 1 contrary to section 112 (a) Criminal Offences Act. That carries a maximum sentence of a fine of up to $5,000 or a term of imprisonment not exceeding a year, or both. The offences in counts 2 and 3 are contrary to section 4 (1) (a) (i) and (ii) Illicit Drugs Control Act.
10. The prosecution have not been able to provide me with a weight for the leaves or the plant.
11. They have argued in their submissions that it “is safe to say” it must be over 28 grams because otherwise it would not have been dealt with in the magistrates’ court.
12. That, though, is a circular argument. In the absence of a weight, they are not in a position to say that. How do I know that an error has not occurred, especially as this case goes back over 12 years to 13^th March 2010 ?
13. In the last few weeks I had a case before me that had been wrongly committed it being simple housebreaking and not serious housebreaking, yet it had been committed in error.
14. Given the absence of any weight attributable to “the leaves in the piece of paper” as Mrs Siale Ma’u described it, or “the plant” (there being no weight, further description or any photographs in respect of either exhibit) I do not therefore accept there is any way I can be certain either exceeded 28 grams.
15. Thus I must work on the basis that the maximum sentence for an amount under 28 grams applies. That is a fine not exceeding $5,000 or a sentence not in excess of 1 year’s imprisonment, or both, pursuant to section 4 (i) (a) (ii) of the Illicit Drugs Control Act.

Approach to sentence

16. I have not been provided with any comparable sentences.

Common assault

17. R v Fate & ors [2021] CR 317 of 2020. Lord Chief Justice Whitten QC imposed a sentence of 4 months imprisonment upon Suliana Fate for an offence of common assault. The victim was hit to the head with a stick by Miss Fate causing him to lose consciousness.
18. The aggravating features of the instant case are (i) it was an assault of a woman, (ii) it involved the use of a weapon.
19. I consider that a starting point of 3 months is appropriate before any reduction for guilty plea and mitigation is considered.

Possession Cannabis and cultivation Cannabis

20. In the absence of a weight attributable to the illicit drugs in counts 2 and 3 it serves no purpose to try and find comparable cases.
21. I shall therefore impose in count 2 a term of 3 months and count 3, 6 months’ imprisonment concurrent with count 2.
22. I reduce each sentence for the guilty plea and also take into account the remorse expressed and for plea and mitigation reduce each by 30 %, so arrive at sentences of count 1, 2 months, count 2, 2 months and count 3, 4 months.

Concurrent or consecutive sentences

23. There is nothing as between the offences in count 1 and 2 and 3 so as to suggest they are the same series of offences or in any way related, save the defendant was arrested for them all on the same date.
24. Following the observations in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 I consider the questions of concurrent sentences or concurrent and then turn to totality.
25. As observed in Hokafonu v Rex [2003] TOCA 3 offences that are unrelated should normally attract consecutive terms.
26. I therefore conclude that sentence in count 1 should be consecutive with the term in count 3. That is a sentence of 6 month’s imprisonment.

Totality

27. I have gone on to consider totality, but see nothing about a term of 6 month’s imprisonment for these offences that would mean that sentence is so over bearing as to be wrong in principle.

Reference

28. There is a reference from Mr. Sione Manumanu the District Officer for the Hihifo region where Mr. Ma’u had lived.
29. It sets out that Mr. Ma’u has completely changed his life, has settled down and is re-married with four children whom he supports.
30. The reference notes that he works hard for his church, the village and the village police, that he is well mannered and well behaved.
31. It is right to say I am very impressed with what I have read and this has influenced me in coming the final decision about sentence.

Suspension

32. I have gone on to consider the principles in Mo’unga [1998] Tonga LR 154.
33. Whilst Mr. Ma’u is not so young and his co-operation with the authorities is tempered by the fact that he then avoided these proceedings for as long as he did. Yet he plainly has completely changed to become someone responsible and a devoted family man.
34. He has committed no other offences since this. This is also a significant factor as rehabilitation is a key component of the Mo’unga considerations.

Sentence

35. I conclude the correct sentence is count 1, 2 months’ imprisonment, count 2, 2 months, concurrent with count 3, 4 months’ imprisonment. But the 4 months sentence on the last count should be consecutive to count 1.
36. That is an overall sentence of 6 month’s imprisonment.
37. But I shall fully suspend that for 2 years on condition that he commits no offence punishable by imprisonment.

Total

38. Total 6 months’ imprisonment fully suspended for 2 years.
    

NUKU’ALOFA N. J. Cooper

12 April 2022 J U D G E