R v Langi [2022] TOSC 78; CR 85 of 2022 (1 September 2022)

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

CR 85 of 2022

REX
-v-
‘ELIKISONI LANGI

SENTENCING REMARKS

BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Ms 'A. 'Aholelei for the Prosecution
Mr S. Tu’utafaiva for the Defendant
Date: 1 September 2022

The charges

1. On 21 July 2022, the Defendant pleaded guilty to two counts of importation of prohibited goods, contrary to ss 95(1) of the Customs and Excise Management Act.

The offending

On or about 28 May 2019, at Ma’ufanga, a routine inspection of imported consignments involving the Detector Dog Unit was carried out by Officer Punaivaha. During the inspection, the Police Dogs indicated four wooden crates. The four crates belonged to four separate owners, namely, Paula Taufa, Isikeli Kivalu, Velonika Pepa and Tapaita Hu’akau. Officer Punaivaha then profiled the indicated crates and passed on the list to the Customs Supervisor, Siunu’u Sakalia.

2. On 5 June 2019, Officer Punaivaha received a call from a Customs Officer to come with the dogs to inspect suspected goods. However, nothing illegal was detected. Upon leaving, the Customs Supervisor called out to Officer Punaivaha to inspect one of the above crates indicated earlier by the Police Dogs belonging to Tapaita Hu’akau.
3. Inside the crate were four buckets of laundry detergent which contained a total of 5,527 rounds of .22 calibre ammunition. A closer inspection of the crate revealed a double floor compartment concealing five .22 rifles wrapped in aluminium foil. The arms and ammunition were not declared.
4. Tapaita Hu’akau was contacted and informed of the above contents of the crate. After being cautioned, Tapaita was taken to the Customs Office at the Wharf and shown the rifles and ammunition. Tapaita informed the Police that the crate belonged to her uncle, the Defendant herein, and that she only knew that day that the crate was brought under her name as she went to the shipping company to have it cleared.
5. When the Police questioned the Defendant, who was also present at the wharf, he admitted that the crates and their contents belonged to him. The Defendant did not have an import licence for the arms and ammunition.

Crown’s submissions

6. The Crown submits the following as aggravating features of the offending:
   • (a) the arms and ammunition were never declared;
   • (b) the Defendant never made an effort to apply for a licence;
   • (c) the manner in which the arms and ammunition were concealed illustrates wilful disregard to the law and overt criminal intent;
   • (d) the quantity of arms and ammunition were substantial.
7. The Crown submits as mitigating features that the Defendant:
   • (a) pleaded guilty at the earliest opportunity.
   • (b) is a first-time offender; and
   • (c) cooperated with the authorities.
8. The Crown referred to the following comparable sentences:
   • (a) Napole Ta’ufo’ou (CR 21/2020) – the Defendant pleaded guilty to unlawful importation of a .22 rifle and 400 rounds of .22 ammunition. The Defendant had applied for a licence to import the firearm and ammunition, but it had expired. This was overlooked by the Defendant, but he declared the goods to Customs. The Defendant was sentenced to a $100 fine for each count to be paid within two months.
   • (b) Halatu’u Palei (CR 22/2020) – the Defendant pleaded guilty to the unlawful importation of a .22 rifle and 1,080 rounds of ammunition. He did not have an import licence for either and was a first-time offender. He was fined $300 for the rifle and $150 for the ammunition.
   • (c) ‘Isitolo Taufa (CR 143/2020) – the Defendant pleaded guilty to causing the importation of two air rifles and 5,345 pellets. The Defendant was fined $500 for the rifles and a $200 for the pellets.
   • (d) Feinga ki he Lotu Fanguna (CR 229/2020) – The Defendant pleaded guilty at trial to causing the importation of the rifle without an import licence. He had applied for an import licence for the rifle but it had not been not issued before the rifle arrived. He was fined $500.
9. The Crown submits the following sentencing formulation:
   • (a) count 1 – a starting point of $10,000, reduced by $2,000 for mitigation, resulting in a fine of $8,000;
   • (b) count 2 – a starting point of $4,000, reduced by $1,000 for mitigation, resulting in a fine of $3000, concurrent with the fine imposed for count 1;
   • (c) the resulting fine of $8,000 to be paid within six months, failing which, three months’ imprisonment.
10. Alternatively, the Crown submits that:
    • (a) on count 1, a starting point of two years imprisonment, reduced by six months for mitigation, resulting in a sentence of 18 months imprisonment;
    • (b) on count 2, a starting point of 12 months imprisonment, reduced by three months for mitigation, resulting in a sentence of nine months imprisonment, to be served concurrently with the sentence for count 1.

No presentence report

11. Despite a direction to do so on 21 July 2022, the Defendant failed to attend the Probation Office. Therefore, a presentence report could not be prepared.

Defence submissions

12. Mr Tu’utafaiva submitted, in summary, that the Defendant:
    • (a) is 67 years of age;
    • (b) is married with six children;
    • (c) completed High School in Tonga before migrating to Hawaii in 1977;
    • (d) was employed as a correction officer for four years;
    • (e) was also employed in a chemical laboratory for seven years before sustaining an injury at work and becoming physically disabled;
    • (f) started building a house on his tax allotment in Ha’apai in 2017 at a cost of approximately $400,000;
    • (g) spends most of his time in Tonga;
    • (h) suffers from a range of chronic medical conditions;
    • (i) travels occasionally for medical purposes;
    • (j) has no criminal convictions in Tonga or the United States; and
    • (k) holds a firearm licence.
13. In relation to the offending, Mr Tu'utafaiva submitted that in 2019, friends of the Defendant asked him to procure firearms from the United States for the purpose of animal hunting and safeguarding their plantations. Most of them told the Defendant that they had firearms licences. The Defendant agreed to import the firearms for his friends and intended for them to then go to the Ministry of Police and license their firearms.
14. Mr Tu'utafaiva acknowledged the following as aggravating features:
    • (a) the manner in which the firearms and ammunitions were concealed;
    • (b) the number of firearms (5) and ammunition (5,527); and
    • (c) they were not declared in the customs documents.
15. He submitted as mitigating factors that the Defendant:
    • (a) pleaded guilty at the first opportunity;
    • (b) has no previous criminal convictions; and
    • (c) travelled to the U.S. for a medical appointment and returned to Tonga to face these charges.
16. The Defendant was arrested on 5 June 2019 and kept in custody until 19 June 2019.
17. In those circumstances, Mr Tu’utafaiva submitted that a fine of $8,000 for both offences was appropriate.

Consideration

18. Section 95(1) of the Customs and Excise Management Act provides that any person who imports or exports or causes to be imported or exported any prohibited goods or who unlawfully imports or exports restricted goods commits an offence and shall be liable upon conviction to a fine not exceeding $100,000 or to a term of imprisonment not exceeding 10 years, or both.
19. As I indicated at the Defendant’s arraignment, the circumstances in which the firearms and ammunition were concealed are of serious concern. They indicate a wilful and knowing disregard for the law, a clear attempt to circumvent it, and thus a greater level of criminality than is usually experienced for this type of offending which often involves a ‘mistiming’ between genuine applications for import licences and the arrival of the imported firearms. The deliberate and elaborate concealment here also distinguishes the instant case from the comparable sentences referred to by the Crown. For instance, in R v Fanguna [2020] TOSC 103 (referred to above), the offending was described as “a case of ignorance and error, not one of wilful disregard of the law or a display of any overt criminal intent”.
20. The Crown’s indicative sentencing submissions, dated 13 July 2022, filed and served with the indictment and summary of facts, specified that upon a plea of guilty, the Crown would submit that the appropriate penalties would be a fine of $8,000 for the rifles and $3,000 for the ammunition. It is not appropriate for the Crown, upon a belated realisation as to the additional seriousness of the offending by reason of the concealment of the firearms and ammunition, to file submissions on sentence, as has occurred here, which include an alternative sentencing formulation involving imprisonment. While the Crown’s indicative sentencing submission cannot bind the Court, it is intended to, and will often, be an important consideration for any Defendant considering his or her plea ahead of arraignment. For that reason, and in the absence of any change of circumstances or new information between the filing of the indicative submission and the final disposition of the proceeding to which the submission relates, it is very important that the Crown carefully considers all features of the alleged offending so that the indicative sentencing range accurately reflects those features and may reasonably be relied upon by the Defendant to be consistent with the actual submissions filed by the Crown on any subsequent sentencing.
21. For that reason, and notwithstanding my concerns about the level of criminality indicated by the concealment of the firearms and ammunition, I consider that it would be unfair and inappropriate to countenance the Crown’s alternative submission in relation to imprisonment. Had such a formulation been expressed in the Crown’s indicative sentencing submission, the situation may well have been different.
22. Notwithstanding Mr Tu'utafaiva’s tacit acceptance of the range of fines submitted by the Crown, the comparable sentences referred to by the Crown do not support that range and by a far margin.
23. When considering a pecuniary penalty, the value of the contraband is relevant. Here, however, neither party has included in their respective submissions any reference to what the Defendant paid for the firearms and ammunition or what, if any, commercial arrangements existed between he and his ‘friends’ (i.e. what they were paying him) for whom the firearms and ammunition were said to have been imported.
24. In R v Lord Tu’ilakepa (unreported, Supreme Court, CR 172 of 2014), the Defendant pleaded guilty to possession without a licence of a number of 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.
25. In R v Tu'ivakano [2020] TOSC 15, a fine of $4,000 (two fines of $2,000) was imposed for unlicensed possession of a .22 rifle and 212 rounds of ammunition.
26. Even though those prosecutions were for breaches of s. 4 of the related Arms and Ammunition Act, which carries a lower maximum penalty of 5 years imprisonment, I consider the sentences to be instructive.
27. Having regard to the statutory maximum penalty, the seriousness of the offending and the above principles, I set starting fines of:
    • (a) $10,000 for the rifles ($2,000 per rifle); plus
    • (b) $5,000 for the ammunition (approximately $1 per round).
28. For the Defendant’s early guilty plea and good previous record, I reduce those starting points by one third, resulting in a total fine of $10,000.
    

Result

29. The Defendant is convicted of the unlawful importation of prohibited goods, being firearms and ammunition, and is fined a total of $10,000.
30. The fine is to be paid within three months, failing which, the Defendant is to be imprisoned for three months.
31. In accordance with s.108 of the Customs and Excise Management Act, it is declared that the Chief Executive Officer responsible for revenue and customs may order that the firearms and ammunition the subject of this proceeding shall be liable to forfeiture.
    

NUKU’ALOFA	M. H. Whitten QC
1 September 2022	LORD CHIEF JUSTICE