R v Liutai [2023] TOSC 17; CR 13 of 2022 (17 March 2023)

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

CR 13 of 2022

REX

-v-

HENRY LIUTAI

SENTENCING REMARKS

Before: Justice P. Tupou KC
Appearances: Mr. J. Fifita for Prosecution
Ms. A. Kafoa for the Defendant
Date: 17 March, 2023

The Charges

1. On 18 November, 2022, after a 3-day trial, the Defendant was convicted for two counts of unlawful importation of restricted goods, contrary to section 95(1) of the Customs and Excise Management Act.

The Offending

2. On 9 December, 2021, a crate of imported goods consigned to the Defendant was ready for inspection. Customs officer, Kelepi Fifita and Paueli on behalf of the Defendant’s broker inspected the consignment.
3. Inside the crate, amongst other things, were 3 bins. The officers opened the bins which were filled with lose candy. At the bottom of one bin, a box containing 267 .9mm ammunition was found. In another bin, they found the .9mm pistol, a gun case, 4 magazines, 1 ammunition loader and one pistol holder.
4. At trial, the Defendant accepted that:
   1. the consignment was his,
   2. it contained the .9mm pistol and 267 9mm ammunition,
   100. they were restricted goods,
   4. they were not declared on the Importer Authorisation and Declaration form,
   5. he held no import licence for them when they landed in Tonga, and
   6. he had not applied for the relevant import licence.
5. He suggested reasons for his failure to hold and/or apply for an import licence for the restricted goods. Those reasons were rejected and his evidence was found to be inconsistent, tenuous and unreliable for a number of reasons, including a claim he did not know it came in the first crate and that he was not told by his relatives that it was mistakenly placed in there.
6. His own witness, Mr. Harris who packed the crate, said he had many discussions with the Defendant after the first consignment was dispatched. Those discussions were held between June and September, 2021 and he told the Defendant in one of those discussions about his mistake and apologized to him about it. Mr. Harris’s evidence was preferred.
7. The Defendant claimed that the .9mm pistol and ammunition should have been shipped in a second crate. That second crate arrived in Tonga on 6 December, 2021 – 3 days before the restricted goods were found by customs on 9 December, 2021.
8. Even by 9 December, 2021, there was no evidence that he held an import licence or had applied for one for the said restricted goods.

Crown’s submissions

9. The Crown submitted the following as aggravating factors:
   1. this is a serious offence as demonstrated by the statutory penalty;
   2. the defendant pleaded not guilty;
   100. the defendant imported the firearm and ammunition without an import licence;
   4. the processes and requirements for importation was well known to the defendant, he elected not to abide by them;
   5. there was intention to defraud the customs office by not declaring the firearm and ammunition on the declaration form;
   6. the defendant was aware that the subject firearm and ammunition was only allowed for members of the Tonga Police Force, His Majesty’s Armed Forces, yet he imported it for Prince Ata; and
   7. the defendant has failed to maintain the trust and confidence required of an authorized Firearm Dealer.
10. The Crown identified the mitigating factors as:
    1. the defendant is a first time offender; and
    2. his co-operation with the police;
11. The Crown referred to the following comparable sentences:
    1. Rex v Isitolo Taufa – CR143/20 – the defendant pleaded guilty to importation of 2 air rifles and five thousand three hundred and forty five 4.5 pellets. He was sentenced to a fine of $500 and a fine of $200 for the pellets to be paid concurrently.
    2. Rex v Paula Taufa- CR215/2019 – the defendant pleaded guilty to unlawfully importing a .12 rifle and six .12 ammunition. He was fined $200 for each offence.
    100. R v Viliami Paelata Vea – CR 2533/2020 – the Defendant pleaded guilty to importing an air rifle and ammunition without an import licence. He was fined $100 for each offence.
    4. R v Feinga He Lotu Fanguna – CR 229/2020 – the defendant pleaded not guilty to causing the importation of a .22 rifle. He was sentenced to pay a fine of $500 and in default one month imprisonment. The firearm was to be forfeited pursuant to s.108 if the fine was not paid.
    5. R v Halatu’a Palelei – CR 22/2020 – the defendant pleaded not guilty to unlawful importing a .22 rifle and one thousand and eighty .22 ammunition. The defendant knew about the importation but had no import licence. He cooperated with the police and was sentenced to pay a fine of $300 for the ammunition or 6 months imprisonment in default. (Customs & Excise Act)
    6. R v Nisifolo Pisima’ake – CR 87/2018 – the defendant pleaded guilty to possession of a 9mm pistol and 9mm ammunition without a licence contrary to the Arms and Ammunition Act. He was a first time offender and was fined $2,000 for the 9mm pistol and $500 for the ammunition.
12. The Crown suggests a non-custodial sentence and submits that the approach in Pisima’ake is adopted. Apparently, this is the first time a defendant has been convicted for importing a .9mm pistol and ammunition and therefore there are no local comparable sentences.
13. The Crown proposes a starting point of $4,000 for count 1 and $2,000 for count 2. In mitigation a discount of $500 from each count, resulting in a final sentence of:
    1. Count 1 - $3,500
    2. Count 2 – $2,500 to be paid concurrently and
    100. For the firearm to be forfeited under s.108 of the Customs and Excise Management Act.
14. The Crown in foresight registered an objection to any application for a discharge without conviction under s.204 of the Criminal Offences Act because to do so will not be appropriate, just or consistent with sentences for similar offending. It noted that in a similar case, namely, R v Ma’ili Finau – CR 322/2020 Cooper J granted a discharge without conviction and that case is under appeal.

Defendant’s Submissions

15. Miss Kafoa for the Defendant agrees that a non-custodial sentence is appropriate.
16. She identifies the mitigating factors to be;
    1. the defendant is a first time offender;
    2. he is 39 years old and has a family who depend on him;
    100. he is a reliable person in his community and church denomination;
    4. he is the “sole license dealer of ammunition” in Tonga and the Police force and soldiers are relying on him to supply their ammunitions;
    5. he cooperated with the authorities; and
    6. he is remorseful.
17. She opposes the adoption of the approach in Pisima’ake and argue that the nature and circumstances of the offence was different and therefore it is not reasonable or consistent to follow here.
18. Instead she submitted an appropriate sentence consistent with the other comparable cases referred to by the Crown would be for:

Count 1 - $500

Count 2 - $200

19. She submitted that a discharge without conviction under s.204 of the Criminal Offences Act should be granted in favour of her client and refers to R v Loleini Ala, AC 19/2018 which sets out the following principles:

“The correct approach that the Court must take in considering whether to grant a discharge without conviction under s.204 is as follows. First, the Court must assess the seriousness of the offending including the gravity with which it is viewed by Parliament along with all aggravating and mitigating factors relevant to the particular case before it. Secondly, the Court must consider the character and circumstances of the offender which will include any previous offending, the effect of the entry of a conviction on his career, his finances, his reputation, any civil disabilities that flow from the entry of a conviction as well as any indirect consequences. Thirdly, the Court must be satisfied that the consequences of entering a conviction are out of all proportion to the gravity of the offending. Finally, the court must stand back and consider whether in all he circumstances of the case the granting of a discharge without conviction is the appropriate result.”

20. Miss Kafoa acknowledges the seriousness of the offending but argued that the circumstances of her client’s case was one of an honest mistake without any intention of importing the ammunition in secret, or to cause any serious offence or premeditated importation.
21. In terms of the second limb of the Ala test, she argued that the defendant will lose his opportunity to operate his business, the police and soldiers rely on him for supplies and he will lose his income if his licence is cancelled.
22. He has an important role in the church and the youth look up to him for spiritual and moral support. He and his family will suffer reputational damage.
23. And for those reasons she submits that it is reasonable and appropriate to discharge the defendant without conviction.

Pre-sentence Report

24. The defendant is 36 years old. He is the youngest of 5 children. His father was a chief-attendant for Lord Fielakepa. His father died in 2018 and the Defendant takes care of his mother.
25. He attended Liahona High School and finished 6^th form. He is said to be taking online courses. He is married with 3 children with ages ranging between 13-8 years old. His wife works at the church and is the regional director for the Pacific Seminary and Institute of their denomination and travels a lot for it. The Defendant looks after their children when that occurs.
26. They moved off Liahona High School campus to live with his wife’s aging parents as Matangiake.
27. His wife describes him as a dedicated family man and that the offending was out of character for him and he has learnt his lesson.
28. Mr. Tafuna who is said to manage the affairs of the village of Matangiake describes the Defendant as honest, trustworthy and a reliable member of his community. He says the Defendant is always helping others in need and is of good character.
29. The Defendant is a member of the Church of Jesus Christ of the Latter-Day Saints and is a bishop for the young single adult ward in his church.
30. The Defendant is of good health and has participated in the Commonwealth Games 2018 for shooting.
31. The Defendant owns two businesses, namely, Ngahau Toka and Tonga Footprint. Ngahau Toka carries on business as the sole importing/exporting and selling/ supplying ammunition in Tonga. Mr. Semisi Tupou, the Manager of the Police Armoury, says that the police force relies on the Defendant to supply their ammunition. Mr. Tupou was apprehensive that this case “may hamper their ongoing commercial relationship”. He stated that the Defendant had no illegal conduct when holding the licence until the present offence.
32. The accused told the Probation officer that he did not intend to commit a crime and had made arrangements to receive the gun and ammunition in the second consignment where he will process it by the date of its arrival. He insisted it was a special order from a member of the Royal family and was only intended for that particular license holder.
33. She reports that he has learnt from his mistake and is now more vigilant and meticulous to avoid breaching any law/policy. He is concerned that his sentence may affect any application for visas on church and work related trips.
34. It was reported that the Defendant earned $500 per week from his business Tonga Footprint.
35. The Defendant has no criminal history and the report rates him at low risk in re-offending. He poses no risks of harm to the public and has expressed genuine remorse. The report urges the Court to consider his pivotal role in supplying ammunitions for the effective operation of the Police and license holder of Tonga in general.
36. The report recommends a non-custodial sentence with community service or a fine and discharge without conviction.
37. On 27 February, 2023 I invited submissions from Prosecution in reply to the Defendant’s request for a discharge without conviction and any further submissions on behalf of the Defendant.

Further Submissions from Defendant

38. On 20 February, 2023 I had received further character references from the Probation Office for the Defendant from Lord Fakafanua, Leotrina Macomber and a L. Fangupo.
39. Miss Kafoa in her further submissions dated 3 March, 2023 argued that if the Defendant is not discharged under s.204, he will no longer be able to continue the business of supplying arms and ammunition for the Tonga Police, His Majesty’s Armed Forces and licence holders.
40. She says, that is because he is the only local agent for Gun City company and is the sole employee of the company handling all business transaction of the company.
41. A letter from the Manager of Gun City company in New Zealand was filed stating that the Defendant and Ngahau Toka was its local agent. Another letter from Lord Fakafanua confirming his business relationship with the Defendant with a copy of their partnership agreement was attached.

Further submissions from Prosecution

42. Mr. Fifita filed supplementary submission on 7 March, 2023. He challenged the Defendant’s proposed sentence and argued that it failed to accommodate the aggravating factors set out in his original submissions.
43. He argued that the Defendant is a licenced arms dealer who:
    1. imported a firearm prohibited for use by the public, and
    2. failed to declare them and pleaded not guilty.
44. He said, for those reasons, the cases of ‘Isitolo, Taufa, Vea, Fanguna and Palei are distinguished and a higher fine is warranted here.
45. As to the Defendant’s recommendation of a discharge without conviction, Mr. Fifita did not agree. He said such a step would be inconsistent with the authorities he has referred to and the Defendant does not meet the tests in ‘Ala for the following reasons:
    1. first limb – the argument that this was a case of an; honest mistake, lacked intention to cause any serious offence; was not imported in secrecy or involved premeditation was not only inconsistent with the Court’s verdict, in particular paras. 45, 47 and 61-70 findings at paragraphs 45, 47 and 61-70 and seeks to minimize the gravity of the offending.
    2. second limb – the Defendant owns a second business, namely, Tonga Footprint that will provide him with an income. He argues that the supporting documents produced do not directly support the assertion that he will not obtain any income, his reputation will be damaged or that he will not be able to conduct the business of Ngahau Toka. Mr. Fifita emphasized the need for decisions to be based on evidence as opposed to speculation as the Court of Appeal held in ‘Ala and Maile.
46. In response to the Pre-sentencing report, Mr. Fifita submits that the report show the Defendant does not accept the courts verdict and has continued the narrative that the restricted goods were intended for the second crate.
47. In relation to re-offending, Mr. Fifita does not agree that the Defendant is low-risk because he is highly experienced in the business of firearm and ammunition and knows the processes.
48. He does agree though, that a non-custodial sentence is appropriate but opposes a discharge without conviction under s.204 of the said Act.

Starting point

49. The maximum penalty for any person who imports or exports or causes to be imported or exported any prohibited goods or who unlawfully imports or exports restricted goods is a fine not exceeding $100,000 or a term of imprisonment not exceeding 10 years or, both^[1].
50. The charge in the instant case deals with the unlawful import of restricted goods. I have considered all of the written submissions; the pre-sentencing report and the filed references and am grateful to counsel for that assistance.
51. I have also gone on to consider R v Langi [2022] TOSC 78, where the Defendant was sentenced to $2,000 for each of the 5 rifles he imported without a licence. There, 5,527 rounds of .22 caliber ammunition were concealed in 4 buckets of laundry detergent and five .22 rifles were found in a double floor compartment of the same crate, wrapped in aluminum foil. Of those circumstances, LCJ Whitten QC said:

“They indicate a willful knowledge 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.”

52. Here, although not as elaborate as a double floor compartment in Langi above, the concealment in buckets of laundry detergent is relatively kin to the items placed in bins filled with lose candy.
53. I share the view in Langi. In convicting the Defendant, I had expressed concern that had it not been for the thorough search undertaken by the customs officer and broker, there was a promising prospect for these restricted goods to slip through customs and into the community. That would have been an unfortunate situation.
54. The Defendant’s position of trust as a licenced arms dealer and the manner in which the firearm and ammunition were shipped and consigned to the Defendant, in bins covered with lose candy, not declared and without the necessary import licence, even after the second crate arrived, in my view, hardly amount to an honest mistake, no intention to cause a serious offence; not imported in secrecy or a lack of premeditation as suggested by his counsel.
55. In addition, the Defendant had been in this business for 6 years and had earlier applied for import licences at least 6 times and knew that the restricted goods were limited for use by the police force, army and customs officers only.
56. These elements set his case above those referred to above. For that reason, from the starting point of $2,000 in Langi, I add $1,000 for the Defendant’s experience and position of trust and $2,000 for the import of restricted goods known to be reserved for the use of the police force, army and customs.
57. Therefore, having regard to the statutory maximum penalty, the seriousness of the offending, the aggravating factors, the comparable cases, objectives of punishment, denunciation, deterrence and protection of the community, I set a starting point of $5,000 for count 1 and $2,000 for count 2.
58. For his lack of previous record and cooperation with the police, I deduct $1,000 resulting in a fine of $4,000 for count 1 and $1,000 for count 2 to be paid concurrently to count 1.

S.204 Discharge without conviction

59. I have reminded myself that the Defendant is an arms and ammunition dealer. That is what he and his business Ngahau Toka is licenced to do. That licence does not permit him to import arms and ammunition.^[2] To do that, he is required to obtain an import licence which is a separate matter and I understand a separate process.
60. That is supported by his evidence at trial that he had applied for 6 import licences in his 6 years in business and that he would often advise persons wanting to import firearm to apply for the licence themselves. That practice may have saved him here.
61. For that reason, I am not entirely satisfied that entering a conviction for this offending will affect the Defendant’s business. A possible impact is that he may never qualify for an import licence of firearms and ammunition in future. If I am wrong, I am satisfied that the Defendant’s second business, Tonga Footprint, that apparently earns $500 a week, means he will not be completely deprived of an income.
62. As for the argument on a conviction being a restriction on travel, in my view, the answer to that was settled in R v Tu’iha’ateiho CR 116/2013, where Cato J said:

“...It would be a wrong message for the Tongan community that persons could avoid conviction for being in possession of unlicensed firearms by essentially an appeal to the avoidance of possible travel restrictions.”

63. In standing back and considering the gravity and circumstances of the offending and offender, including an obvious lack of remorse, I am not convinced that a discharge without conviction is the appropriate result here.
    

Result

64. The Defendant is convicted for the two counts of unlawful importation of restricted good, being a .9mm pistol and 267 .9mm ammunition and fined for:

a) Count 1- $4,000

b) Count 2 - $1,000 to be paid concurrently to count 1.

65. The fine is to be paid within 2 months, failing which, the Defendant will serve 2 months imprisonment.
66. It is declared pursuant to s.108 of the Customs and Excise Management Act, 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.
    

P. Tupou KC
JUDGE

NUKU’ALOFA
17 March, 2023

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^[1] S.95 (1) Customs and Excise Management Act.
^[2] See exhibit D2