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R v Holani [2022] TOSC 65; CR 52 of 2022 (2 August 2022)

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


CR 52 of 2022


REX
-v-
KALUSETI HOLANI


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr F. Samani for the Prosecution
Mrs F. Vaihu for the Defendant
Date: 2 August 2022


The charges

  1. On 21 June 2022, the Defendant pleaded guilty to:

The offending

The first incident – counts 1 and 2

  1. On the morning of 16 October 2021, at ‘Afaa, a fight broke out between youths from that village and Niutoua which resulted in some of the youths from Niutoua being rushed to hospital. One of them was the Defendant’s nephew. The Defendant drove past ‘Afaa and saw Peni Tu’itupou drinking on the side of the road with some boys from Kolonga. The Defendant confronted Peni and they fought. When the fight was stopped, the Defendant returned to his vehicle and said that he would be back with a gun.
  2. Peni returned to his residence. The Defendant drove to and parked in a yard behind Peni’s house. Peni came out to confront the Defendant who then pointed a rifle at Peni and threatened to shoot him. Peni’s sister intervened and pulled him back into their house. Peni’s father then chased the Defendant away. Peni’s mother, Mele, then lodged a complaint with the Mu’a Police.

The second incident – counts 3 to 7

  1. On 8 January 2022, the Defendant again drove by ‘Afaa and saw two boys at a shop beside the main road. He stopped and pointed a rifle at them and said that he was going to shoot them. The two boys ran off and the Defendant drove toward Kolonga.
  2. Later that day, the Defendant drove back through ‘Afaa. One of the boys he had earlier threatened threw a rock at his vehicle. The Defendant stopped and fired the rifle into the air. Peni, Fatai Lolohea and a group of other boys were standing nearby and ran off when the shot was fired. The Defendant then drove off to Niutoua while shouting that he would be back.
  3. The Defendant later returned with others in his vehicle. When they arrived at where Peni, Fatai and the other boys were standing, the Defendant got out of his vehicle with his rifle and fired three shots in the direction where the boys were standing. The boys ran off and hid while the Defendant drove back to Niutoua.
  4. One of the shots struck Peni’s left elbow and another struck Fatai’s left knee. They were immediately rushed to hospital.
  5. The Defendant was arrested the following day. He cooperated with police and admitted to the offending.

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits that following as mitigating features:
  3. The Crown referred to the following comparable sentences:
  4. Here, the Crown submits the following sentencing formulation:

Victim impact reports

‘Amini Tu’itupou (Mele’s husband)

  1. After the incident, ‘Amini was shocked that the Defendant would come to his house and commit such offending considering their community and family relations. ‘Amini’s illegitimate daughter was adopted by the Defendant’s parents. The Defendant’s parents apologized in person and presented $200 to ‘Amini. When the Defendant was released from custody, he apologized in person and gave a further $100 to ‘Amini.

Mele Tu’itupou

  1. The incident shocked Mele and her son being injured upset her. She does not know why the Defendant did what he did but she has forgiven him after a formal apology was made by the Defendant and his parents. She was also upset with the Police for not responding to her first complaint because if they had, and took the firearm from the Defendant, things would not have escalated. She continues to fear for her children’s safety.

Peni Tu’itupou

  1. Peni is 19 years of age. He no longer goes to school but stays home and helps his father in the plantation for their living. When he was fighting with the Defendant during the first incident, his older brother drove by and helped him. This made the Defendant mad hence why he got the firearm. However, he is thankful his injuries were not more serious and that they have healed. The Defendant also apologized to Peni and gave him $100.

Fatai Lolohea

  1. Fatai is also 19 years of age. He is currently studying agriculture at the Open Senior College. The gunshot to his knee has healed well. The Defendant’s parents apologized to his parents and gave them $200, which was accepted. When the Defendant was released on bail, he tried to visit Fatai to apologize but he was not home. Fatai has not heard from the Defendant since.

Presentence report

  1. The Defendant is 22 years old. He is the eldest of four children. He grew up in a stable environment and his parents are respected members of the Niutoua community. When the Defendant was five, his mother suffered a stroke and could no longer take care of him. He was then taken care of by his older sisters. He was educated to Form 5 at Liahona High School but dropped out to help his father provide for their family needs. Their main source of income is from their farm and family store. The Defendant planned to marry later this year.
  2. In relation to the offending, the town officer of ‘Afa and Niutoua reported that young boys there have developed a habit of drinking and hanging out around the Chinese shop. Once intoxicated, they act out violently, including getting angry when customers refuse to give them money when they ask. Since this offending, the communities have reconciled and the Defendant has participated in that process.
  3. The Defendant stated that he feared for the life of his family members and his anger “amplified” to the point he committed the offences. He said he only did so to cause fear so that it could end the violent behaviour. He has apologised to the victims’ families and provided gifts of money as mentioned above.
  4. The town officer described the Defendant as someone who has “no transgression in the community” and that the offending was “out of character.” The Bishop from the Defendant’s church reported that, since this offending, the Defendant has been attending church regularly and is now an active member.
  5. The probation officer described the Defendant as being remorseful and ashamed for what he did. He is currently enrolled in a rehabilitation program with the Salvation Army for anger management. The probation officer opined that the risk of the Defendant reoffending is low and that he is suitable for a suspended sentence which would help with his rehabilitation process.

Defence submissions

  1. In addition to the information provided in the presentence report, Mrs Vaihu submitted that the Defendant is unemployed and is voluntarily attending a rehabilitation program with the Salvation Army. Apart from a general plea for clemency, Mrs Vaihu’s submissions did not extend to any sentence formulation.
  2. I have considered the five letters of reference attached to the submissions. A letter from the Salvation Army stated that the Defendant presented on 30 May 2022 (some five months after he was charged and a few weeks before his arraignment) seeking help with his alcohol addiction. He is said to be participating well in the program and has made significant progress and lifestyle changes. The other letters were from Bishops of the Defendant’s church, a minister of the Free Church of Tonga and the relevant town officer, who also attest to his positive involvement in the village and church community, his remorse and improvement.

Starting points

  1. The maximum statutory penalties for each of the subject offences is 5 years imprisonment. [1]

The first incident

  1. The first two counts are clearly the less serious, although I consider count 2, trespassing with the rifle, to be more serious than the unlicensed possession.
  2. The Crown’s submissions did not include any comparable sentences for the trespassing offence and my research has not uncovered any.
  3. The seriousness with which Parliament views offences involving unlicensed firearms is reflected in decisions such as Kohinoa [2008] TOLawRp 9, where Andrew J opined:
“In offences involving firearms it is almost inevitable that a gaol sentence will follow.”

and in Tu’iha’ateiho [2015] TOSC 8, where Cato J observed that:

“[14] ... Parliament has set a clear directive to the Courts that serious consequences should follow a conviction for being in possession of an unlicensed firearm.
...
[16] ... In my view, the licensing and security of firearms in any society is a matter of great importance.... I consider that Parliament in providing that imprisonment as the appropriate penalty for being in possession of an unlicensed firearm, evidenced its intent plainly. ... It would be a wrong message for the Tongan community that persons could avoid conviction for being in possession of unlicensed firearms...”
  1. In Tongamoa [2021] TOSC 51, a number of comparable sentences[2] for unlicensed possession of a firearm were examined which indicated a range of sentences from 12 months to 2 ½ years imprisonment. I place the unlicensed possession here in the mid-range of those cases. However, I place the trespassing with the rifle, which was pointed at Peni, in the upper end of that range.
  2. For those reasons, I set starting points of 18 months imprisonment for count 1 and 2 ½ years imprisonment for count 2.

The second incident

  1. In my view, the overt violence displayed by the Defendant in the second incident was capable of supporting far more serious charges. The Defendant is very fortunate not to have been charged with, for instance, carrying a firearm with intent to commit an offence, which carries a maximum sentence of 10 years imprisonment;[3] and/or attempted murder, which carries a maximum sentence of life imprisonment.[4] The reasons for the decision to lay lesser charges are not apparent from the material filed.
  2. It may be observed, with similar bemusement, that notwithstanding Mele’s complaint to the Mu’a police in October 2021, the second incident in January 2022 involved the same rifle as that used in the first. The information before me does not allude to what, if anything, the Mu’a police did in response to Mele’s complaint of the Defendant using a rifle to threaten. Clearly, they did not confiscate it. Nor, would it seem, was any action taken at the time to charge the Defendant in relation to the first incident. According to the probation officer, there were no attempts by the police to resolve the issues when they first occurred in October 2021. Had the police taken appropriate action, there is every likelihood that the second incident would not have occurred; certainly not with the same rifle. One can only lament at the apparent neglect by the Mu’a police which, indirectly at least, enabled the Defendant to commit these offences and which could well have resulted in the deaths of two young men.
  3. In Hu’ahulu v Police [1994] Tonga LR 93, Ward LCJ stated:
“... anyone who commits an offence of violence against another person runs a serious risk of immediate imprisonment. That will apply even to a first-time offender. The likelihood of going to prison becomes a virtual certainty ... when a weapon is used.”
  1. The remarks of Cato J in Rex v Siale [2015] TOSC 13, a case which also stemmed from violent, young male group rivalries, are apposite:
“[4] Hopefully, this judgment will assist to deter this kind of mindless violence in the future. ... I consider that deterrent sentences must be imposed to emphasise not only to these offenders but to other students that conduct of this kind will not be tolerated in Tonga. Competitive sporting and academic rivalry between schools is laudable, but conduct of this kind, involving group violence, is not. Vigilante behaviour cannot be tolerated in any civilised society.”
  1. Further, in R v Kautai and Tavake (CR 102/2015 and 103/2015), His Honour emphasised that:
“[18] Self-help and retributive action of this kind, ... involving violence, vigilante action and the use of firearms is denounced as incompatible with civilized conduct. No citizen has the right, no matter what he conceives, may be the seriousness of crimes committed against him to take the law into his own hands and punish others without due process and trial. ...”
  1. Having regard to the seriousness of the offending, the comparable sentences and principles referred to above, and the importance of imposing sentences which adequately reflect the community’s denunciation for this type of senseless violence and the need for deterrence, I set the following starting points:


Mitigation

  1. For the Defendant’s guilty pleas, previous good record and demonstrated remorse, I reduce the starting points to the following terms of imprisonment:

First incident

(a) count 1 - possession of an unlicenced firearm - 12 months;
(b) count 2 - trespassing with a firearm - 20 months.

Second incident

(c) count 3 - discharging a firearm with intent to intimidate – 20 months;
(d) counts 4 and 5 - using a firearm without a licence – 12 months each; and
(e) counts 6 and 7 - causing serious bodily harm – 32 months each.

Cumulation and totality

  1. The sentences for counts 1 and 2 are to be served concurrently.
  2. The sentences for counts 3 to 5 are to be served concurrently with the sentence for count 6.
  3. However, in order to arrive at a sentence which gives effect to the principles for cumulation of sentences for separate crimes,[5] and adequately reflects the totality of the offending where:

I consider it inappropriate to simply add the head sentence for the first incident to the head sentence/s for the second. Instead, I consider that the head sentence for the first incident should be partially cumulative to that for the second incident and that, within the sentences for the second incident, the sentence for count 6 should be partially cumulative with the sentence for count 7. Therefore, 12 months from the sentence for count 2 and 12 months from the sentence for count 6 will be added to the sentence for count 7, making a total sentence of 56 months or 4 years and 8 months imprisonment.

Suspension

  1. Application here of the considerations for suspension discussed in Mo’unga [1998] Tonga LR 154 at 157 produce a mixed result. The Defendant is young, he has a good previous record, he co-operated with the authorities and his accepted apologies reflect an acceptance of responsibility by him for his actions and forgiveness by those he harmed. Against that, his actions were premeditated, and his culpability cannot be regarded as diminished by reason of and provocation and I do not accept that he was acting in defence of himself or his family. His reaction in the first incident to his nephew being injured during fighting between the two groups of boys was misdirected when he singled out Peni. His actions in the second incident were not provoked at all by anything Peni or Fatai did. In my view, the Defendant descended into the retributive, vigilante mindset warned of by Cato J above. His decisions on both occasions to go home and return with his father’s rifle reflected impulsive immaturity, palpable anger management issues and, regrettably, very poor judgment.
  2. Even though a period of incarceration will undoubtedly be difficult for this young Defendant, the seriousness of the offending here is such that full suspension would not serve the necessary sentencing objectives referred to above. A balance between his positive attributes and the imperative for his rehabilitation, on the one hand, and those objectives, on the other, can be achieved through a significant portion of the sentence being suspended.

Result

  1. The Defendant is convicted on:
  2. Twelve months from the sentence for count 2 and 12 months from the sentence for count 6 are to be added to the sentence for count 7, making a total sentence of 56 months or 4 years and 8 months imprisonment. Otherwise, the balance of the sentences are to be served concurrently.
  3. The final 20 months of the aggregate sentence is to be suspended for a period of 2 years from the date of the Defendant’s release from prison on condition that during the period of suspension, he is to:
  4. Failure to comply with any of those conditions may result in the suspension being rescinded in which case the Defendant will be required to serve the balance of his prison term.
  5. Subject to compliance with those conditions and any remissions available pursuant to the Prisons Act, the Defendant will be required to serve 3 years in prison.
  6. Pursuant to s. 37 of the Arms and Ammunition Act, the firearm the subject of the proceedings is to be forfeited to the Crown.



NUKU’ALOFA
M. H. Whitten QC
2 August 2022
LORD CHIEF JUSTICE

[1] Ss 4 and 45 of the Arms and Ammunition Act; ss 107 and 109 of the Criminal Offences Act.
[2] Viliami Na'a (CR 115/19); Talia’uli [1999] Tonga LR 7; Liou [2010] Tonga LR 181 & AC 21/2010; Vakapuna [2018] TOSC 81; Huni [2018] TOSC 33.
[3] Ss 42(1) of the Arms and Ammunition Act.
[4] Ss 91(2) of the Criminal Offences Act.
[5] As discussed in Valikoula v R [2021] TOCA 5 at [39] and R v Selupe [2021] TOSC 47 at [22].

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