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R v Tu'i [2023] TOSC 18; CR 40 of 2022 (24 March 2023)

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


CR 40 of 2022

REX
-v-
‘UHILA TU’I


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr. F. Samani for the Prosecution
Defendant in person

Date: 24 March 2023

The charges

  1. The Defendant was originally charged with ‘Okusitino Langi (CR 31/22) and ‘Ana Hefa (CR 39/22) on an indictment containing 12 counts comprising possession of cocaine, methamphetamine, cannabis and utensils, various firearms offences and attempted violence.
  2. Mr Langi pleaded guilty to counts 1 and 2 (possession of 6.9 grams of cocaine and utensils) and was sentenced for those and other drug related offences on 14 October 2022 to a total of nine years imprisonment.[1]
  3. The Defendant here originally pleaded not guilty to counts 3 to 12 which involved possession of methamphetamine, cannabis and utensils; possession of a pistol and ammunition without a licence; carrying a revolver with intent to resist arrest; discharging a revolver with intent to intimidate and attempted grievous bodily harm.
  4. Ms Hefa was jointly charged, and pleaded not guilty to, counts 3 to 6.
  5. At the commencement of their trial on 7 September 2022, Mr Lutui, the Director of Public Prosecutions, announced that Ms Hefa had agreed to give evidence for the Crown in exchange for immunity from prosecution. The trial of the Defendant was therefore adjourned.
  6. When the trial resumed on 6 February 2023, Mr Lutui explained that Ms Hefa had reneged on her agreement to give evidence for the Crown and the Attorney General had therefore revoked her immunity and reinstated the charges.
  7. On 7 February 2023, the Defendant was rearraigned and pleaded guilty to counts 7, 8 (possession of a pistol and ammunition without a licence) and 10 (carrying a firearm with intent to resist arrest). Mr Lutui then advised that the Crown was satisfied with the Defendant’s guilty pleas to those counts and withdrew the balance of the charges against him and Ms Hefa.
  8. The Defendant appears today for sentencing on those counts.

The offending

  1. Early on Sunday, 12 September 2021, Police were patrolling in relation to the national COVID-19 curfew restrictions. They noticed a rental car in front of one of the Police vehicles. The Police turned on the vehicle's emergency light to signal the vehicle to stop but it did not. The Police managed to forcibly stop the vehicle at Kolomotu'a. There were three occupants including 'Okusitino Langi who was driving. The Police informed 'Okusitino and the other occupants that they would be arrested for breaching curfew. The Police also informed them of their intention to conduct a search, during which, Police found two packs of white powder on 'Okusitino but nothing of note on the two passengers. 'Okusitino admitted that the white powder belonged to him and that it was cocaine. He was arrested and taken to Central Police Station where Police continued to search his vehicle but found no other illicit items.
  2. Later that morning, the Police operations team conducted a warrantless search of 'Okusitino's residence at Hala'ovave. Upon their arrival, officers marshalled the occupants onto the verandah before commencing the search of the main residence, during which they found 52 empty packets and 1 bong.
  3. Police then noticed a light shining from a container house just outside the residence. Sergeant Vakalahi climbed a ladder to the container door which was open. He saw a man (the Defendant) and a woman (Ms Hefa) sleeping on a bed inside. He informed the Drugs Enforcement Taskforce (DET) Officers, one of whom then woke the occupants. Sergeant Televave then climbed up to the container. He too recognised the Defendant and told him that they needed to go down. He walked the Defendant toward the door while Ms Hefa got dressed.
  4. When he got to the door the Defendant looked outside but then turned around and walked back into the room. Sgt Televave called out to one of the DET Officers for hand cuffs and then rushed back into the room in case the Defendant attempted to destroy any drugs. The Defendant then bent down, reached inside a bag, pulled out a handgun, and said "I am now going to shoot you all".
  5. Sgt Televave jumped from the container house to the ground. The Defendant came to the doorway, pointed the pistol at Sgt Vakalahi and discharged it. The shot missed Vakalahi, and he instantly returned fire, causing the Defendant to fall to the floor.
  6. Police seized and cleared the pistol which contained five empty casings and one live round. The Defendant was then taken to hospital while police continued with the search. In the container room, they found various drug related utensils, over 150 dealer packs, methamphetamine, cannabis, and 40 rounds of .22-gauge ammunition, one 9mm cartridge and a number of empty casings. The Police also searched the Defendant’s vehicle and found a pack of methamphetamine inside the steering wheel cover.
  7. The Defendant was later arrested. When interviewed, he chose to remain silent.

Previous convictions

  1. The Defendant has the following previous convictions:

Crown submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The only mitigating feature is the Defendant’s guilty plea.
  3. The Crown referred to the following comparable sentences:

For Creed Tongamoa, starting points were set of 18 months for the firearm and 6 months for the ammunition. For his early guilty plea and lack of previous firearms convictions, the starting points were reduced by 30% resulting in sentences of 12 months for the firearm and 4 months for the ammunition. Part of the aggregate sentence (for the drugs) was suspended on conditions.

  1. The Crown submits the following sentence formulation:
  2. By the criteria in Mo’unga v Rex [1998] Tonga LR 154, the Defendant is not young, he has previous convictions, he did not cooperate with the Police. Therefore, it is submitted that no part of the sentence should be suspended.

Pre-sentence report

  1. The Defendant is 34 years of age. He is the third of 6 children. He was raised in a decent family who are active members of The Church of Jesus Christ of Latter-Day Saints. In his education at Tonga College, the Defendant passed the National Form 5 Examination but then did not complete Form 6.
  2. In 2008, the Defendant married Lupeolo-ki-Alalata Tu’i. They had four 4 children, three of whom are still attending school. His wife was shocked to learn of his drug convictions. She reported that after he was released from prison in 2020, the Defendant was well behaved and went to work with his uncle, ‘Okusitino Langi, as contract builders to support their family. She had no idea that ‘Okusitino and the Defendant were involved in this offending. Lupeolo also confirmed that she and her children have the care and support of her family at Fasi.
  3. The Defendant confirmed his offending to the probation officer as per the summary of facts and offered no excuse. He also expressed regret and remorse.
  4. The probation officer characterized this matter, combined with the Defendant’s previous convictions, as very serious. He opined that the Defendant’s recidivism may increase if he chooses to continue to be involved with illegal drugs and criminal peers and drug offenders.
  5. The probation officer also referred to the Defendant having since committed other drug offences for which he had been remanded in custody pending his appearance before the Magistrates Court. As at the date hereof, the Court computer system does not contain any such recent offending other than traffic infringements late last year which were withdrawn or struck out.[3]
  6. Notwithstanding, the probation officer describes the Defendant as “a good person” with the potential to revert to his “good nature”. Therefore, he recommends partial suspension of any sentence on the usual conditions including completion of an alcohol and drugs awareness course and religious counselling with Rev. Semisi Kava (Hu’atolitoli Chaplain) while in prison.

Starting points

  1. The statutory maximum penalty for possession of a firearm and ammunition without a licence is 5 years imprisonment.[4] The maximum penalty for carrying a firearm with intent to resist arrest is 10 years.[5] Count 10 is therefore clearly the head count.
  2. In R v Holani [2022] TOSC 65 at [27], it was observed that the seriousness with which Parliament views offences involving unlicensed firearms is reflected in decisions such as Kohinoa [2008] TOLawRp 9, where Andrew J opined that:
“In offences involving firearms it is almost inevitable that a gaol sentence will follow.”
  1. That view was amplified in Tu’iha’ateiho [2015] TOSC 8 where Cato J opined:
“[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 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. At first blush, the instant offending is distinguishable from the comparable sentences referred to above, and marked, in terms of seriousness, by the Defendant shooting at police. For that, he was initially charged with attempted grievous bodily harm. He could well have been charged with attempted murder. Ultimately, he has been extremely fortunate that the Crown has been content with that conduct being dealt with only by way of s. 42 of the Act.
  2. The men and women of Tonga Police swear a solemn oath to, among other things, preserve the peace, protect life and property, and uphold the laws of Tonga. Their role is critical to the safety and security of every person in Tonga and the maintenance of law and order in a civilised society. In performing their role, officers daily risk life and limb. Thankfully, to date, incidents of serious attacks on police have been rare in Tonga. However, the magnitude and gravity of those risks have increased over recent years with the execrable growth of the illicit drugs trade. Often, senseless violence towards police when encountering offenders has been a symptom of the latter’s drug use. It is also often motivated by Police intervention disrupting the flow of money that courses through the veins of that ill-fated sub-culture. Those two features have also led to an uptake in possession and use of unlicensed firearms among drug users and dealers. In my view, the offending here, with the involvement of ‘Okusitino Langi, is a disturbing illustration of some, if not all, of those features.
  3. The Defendant’s action of firing at police is an example of the worst fears of all police officers, and their families, who all have a bona fide right to expect that they will all be intact at the end of each day’s work. Had the Defendant’s aim been more accurate, that might not have been the case for Sgt Vakalahi and his family.
  4. The Crown’s submitted starting point of 6 to 7 years, against a statutory maximum of 10 years, was clearly based on the shooting as being the zenith or critical aspect of the Defendant’s criminality. However, that is not the crime for which the Defendant is to be sentenced.
  5. Section 42(1) of the Arms and Ammunition Act provides:

Any person who has with him an arm while committing or attempting to commit an offence, or with intent to commit an offence or to resist arrest or to prevent the arrest of another, shall be liable to imprisonment for a term not exceeding 10 years.

  1. Count 10 was formulated by the Crown so as to specify only the carrying of the firearm with intent to resist arrest. On the facts, it could have been specified such that the Defendant had the firearm while committing an offence (such as resisting arrest, possession of drugs or attempted grievous bodily harm, which was count 12) which would have been a more accurate depiction of his actions.
  2. There are substantial differences in not only the elements, but also the degree of criminality, between an offence of carrying a firearm with intent to resist arrest (for which the Defendant is to be sentenced) on the one hand, and offences which involve the physical manifestation of that intention by, for instance, pulling the trigger, on the other.
  3. The Crown’s decision to accept the Defendant’s guilty pleas to counts 7, 8 and 10 and, in return, to withdraw the other counts (particularly 11 and 12) has had the effect of precluding the Court from being able to deal directly with the Defendant for shooting at police.
  4. That decision presents a cautionary tale in relation to so called plea bargains.[6] As Part VII of the Director of Public Prosecution’s General Instructions, Number 1 of 2020, makes clear, Crown Prosecutors should select charges which, relevantly, reflect the seriousness and extent of the offending. It may be presumed therefore that charges are selected and laid because the available evidence supports them in accordance with the evidential and other tests prescribed in the Instruction. Clause 40 provides that Crown Prosecutors may not always choose or continue with the most serious charge where there is a choice. That safeguard contemplates, among other things, that there may be unexpected changes in the evidence that remains available by the time a matter is ready for trial, or that upon a review or assessment of the relative strength of the evidence and the reasonable prospects of a conviction, one or more of the original charges should be either amended or withdrawn.
  5. Part VIII of the Instructions is entitled "Accepting Guilty Pleas". Clause 42 provides that:
“... Crown Prosecutors should only accept the defendant’s plea if they think the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features. Crown Prosecutors must never accept a guilty plea just because it is convenient.”
  1. Prudent and appropriate plea bargains play an important role in incentivising Defendants to plead guilty when they should. They also save valuable court time and other resources and obviate the need to call witnesses to give evidence which, particularly in the case of complainants having to re-live their ordeal, can often be traumatic. However, the proper exercise of Prosecutorial discretion requires great care before entering into such agreements. That is particularly so where they may result in very significant reductions in the number and nature of the charges to be dealt with. Prosecutors must guard against such decisions being motivated by organisational expedience or individual convenience and ensure that the outcome still justly reflects the seriousness of the overall offending.
  2. In the present case, there was no suggestion at the time the plea agreement was announced that, for example, there was any actual or perceived deficiency in the available evidence between when the trial commenced and when it resumed, which warranted accepting guilty pleas to 3 out of 10 counts. Even though the maximum statutory penalties for counts 11 and 12 - discharging a firearm near a person and attempted grievous bodily harm - would have been only five years,[7] proceeding with them would have permitted the Court to deal directly with the shooting in determining the appropriate penalty on any sentence.
  3. Notwithstanding, it would be artificial, in my view, to ignore the shooting entirely. It may properly be considered for the purpose of assessing the seriousness of the element of intention in count 10. However, as explained above, that charge falls short of enabling the Court to sentence the Defendant for the shooting at police.
  4. For those reasons, I am unable to accept the Crown’s submitted starting point.
  5. The closest comparable sentences referred to above are Fifita where a starting point of 3 years and 3 months was set for carrying an unloaded rifle in a public place with intent to commit an offence; and Holani, where a starting point of 2½ years was set for discharging a firearm with intent to intimidate. There, Holani fired three shots from his rifle in the direction of two boy victims. Two of the shots injured them which resulted in Holani also being charged and sentenced for serious bodily harm. However, insofar as the Crown relies here on the decision in Holani in respect of the charge of discharging a firearm with intent to intimidate, that offence only carries a maximum penalty of 5 years imprisonment,[8] similar to that for the unlicensed possession offences under s. 4 of the Arms and Ammunition Act. Ultimately, Holani was sentenced to 32 months for each of the serious bodily harm counts as part of an aggregate sentence, after considerations of totality, of 56 months’ imprisonment.
  6. Here, even though the shot fired by the Defendant did not strike any of the officers, the fact that when the Defendant picked up the firearm:

in my view, all warrant a higher starting point than those set in Fifita or Holani.

  1. The sentencing objectives also require additional weight to be given to community protection and deterrence.
  2. For those reasons, I set a starting point for count 10 of 4 years imprisonment.
  3. In Tongamoa [2021] TOSC 51, as referred to by the Crown above, a number of comparable sentences for unlicensed possession of a firearm and ammunition were examined which indicated a range of sentences from 12 months to 2½ years imprisonment. The context and purpose for which the Defendant here had possession of the handgun and ammunition indicate a starting point for counts 7 and 8 of 2 years imprisonment.

Mitigation

  1. For the Defendant’s belated guilty plea and lack of any previous firearms related convictions, a discount of around 20% would have been applicable.
  2. However, it will be recalled from the summary of the offending in paragraph 13 above, that after the Defendant shot at Sgt Vakalahi, the officer returned fire, causing the Defendant to “fall to the floor” which resulted in him being taken to hospital. No other details of any injuries suffered by the Defendant were included in the material filed for sentencing.
  3. On 20 March 2023, in response to a request from the Court, Ms Eliesa of the DPP’s office forwarded a report from Dr Tevita Tuungafasi, Surgical Registrar at the Vaiola Hospital, dated 29 September 2021. In it, Dr Tuungafasi recorded that the Defendant was admitted to the hospital on 12 September 2021 having suffered a gunshot wound to the chest, a closed fracture of his left forearm and an open fracture of his right fifth finger. He was treated and discharged on 20 September 2021 although x-rays of his chest showed “a foreign body inside his upper abdomen look [sic] like a bullet but there was no attempt of removing it”.
  4. This information should have been included in the material filed.
  5. Therefore, I consider it appropriate to take account of the above injuries as an incidental part of the punishment already suffered by the Defendant for his offending by increasing the overall discount to 30%, resulting in the following sentences (rounded down):
  6. The sentences for counts 7 and 8 are to be served concurrently with the sentence for count 10.

Suspension

  1. There is considerable force in the Crown’s submissions against any suspension.
  2. By the factors discussed in Mo’unga v Rex [1998] Tonga LR 154:
  3. However, I am moved by the Probation Officer’s assessment of the Defendant and his frank acceptance of responsibility and expressed remorse. I have no doubt that the offending here was, in no small part, the result of the Defendant’s association with drugs, and the influence of his uncle who had an appalling criminal record spanning more than two decades.
  4. For that reason, and the presence of the Defendant’s wife and children in his life as hopefully a further inducement for reform, I am prepared to offer the Defendant, what may well be his last, opportunity through some suspension. It will also serve as an additional deterrent against any temptation for recidivism.

Result

  1. The Defendant is convicted and sentenced:
  2. The sentences for counts 7 and 8 are to be served concurrently with each other and the sentence for count 10.
  3. The final 9 months of the sentence are to be suspended for a period of 12 months from the date of the Defendant’s release from prison, on condition that he:
  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. Pursuant to s. 37 of the Arms and Ammunition Act, the firearm and ammunition the subject of this proceeding are to be forfeited to the Crown.
  6. Pursuant to ss 32(2) of the Illicit Drugs Control Act, the illicit drugs and utensils seized in relation to this proceeding are to be destroyed.
NUKU’ALOFA
M. H. Whitten KC
24 March 2023
LORD CHIEF JUSTICE

[1] R v Langi [2022] TOSC 88

[2] The original fine of $10,000 was reduced on appeal: Liou v Rex [2010] TOCA 23.

[3] E.g. MC/IN/FA1 2022 – 3320 and MC/IN/FA1 2022 – 1231.

[4] ss 4(2)(b) of the Arms and Ammunition Act (“the Act”).

[5] ss 42(1).

[6] Although preferred terms include ‘plea negotiations’, ‘early and appropriate resolution of cases’ or ‘negotiated guilty pleas’ due to the negative connotations of a bargain or trade that may occur outside the formalised rules and scrutiny applied at trial: “Plea Negotiations”, Report to the Criminology Research Advisory Council administered through the then Australian Institute of Criminology, by Asher Flynn and Arie Freiberg, April 2018.

[7] Ss 109(1) of the Criminal Offences Act for the discharging a fire on the right person and ss 106(1) read subject to s 5 of the same Act for the attempted grievous bodily harm.

[8] s.109 of the Criminal Offences Act.

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