R v Lokotui [2023] TOSC 25; CR 16 of 2023 (14 April 2023)

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

CR 16/2023

REX
-v-
VILIAMI LOKOTUI

SENTENCING REMARKS

Before: Justice P. Tupou KC
Appearances: J. Fifita for Prosecution
Defendant in person
Date: 14 April, 2023

The charges

1. The Defendant was charged with one count of using arms without a licence, contrary to s.4(1), (2)(b) of the Arms and Ammunition Act (Count 1); one count of discharging a firearm within the boundaries of a town without the town officer’s permission, contrary to s.3(o) of the Order in Public Places (Count 2); and one count of killing a swine, contrary to s.182 of the Criminal Offences Act (Count 3).
2. On 27 February, 2023, the Defendant pleaded guilty to Count 1 and the Crown entered a nolle prosequi for Counts 2 and 3.

The offending

3. The Defendant and his wife live at Nukuleka, at her parents’ home. His wife’s brother, Tevita Kalavite and his wife, ‘Akanesi also live with them. The complainant, Losaline Sili is the Defendant’s wife’s sister.
4. On 6 August, 2022, Tevita Kalavite, saw the Defendant outside the veranda of their house. He had a short, black gun with a wooden handle which he used to shoot a pig.
5. Tevita’s wife, ‘Akanesi, was at the veranda of the family home, washing clothes. She heard the shot, saw the pig lying on the ground and the Defendant with the gun still in his hands.
6. The pig belonged to Losaline. On 7 August, 2022, Losaline lodged a complaint with the police about the killing of her pig.

Crown’s submissions

7. The Crown submitted the following as aggravating factors:
   1. offences involving firearms are dangerous and serious;
   2. the firearm was loaded and used near and in the presence of others;
   100. the Defendant did not hold an appropriate licence;
   4. the Defendant maintained he used an axe to kill the pig;
   5. the firearm was never recovered.
8. The Crown noted the mitigating factors to be;
   1. the Defendant’s early guilty plea; and
   2. no previous criminal record.
9. The Crown relied on the following comparable sentences:
   1. R v Ta’ufo’ou Fale’ofa (CR 54 of 2021) – the Defendant pleaded guilty to a charge of using arms without a licence. The firearm was not recovered and the Defendant held previous convictions. A starting point of 2 years was fixed and reduced by 4 months in mitigation. The final 10 months of the resulting sentence of 1 year and 8 months was suspended for 1 year on conditions.
   2. R v Kaluseti Holani ( CR 52 of 2022) – the Defendant was charged with 2 counts of using a firearm without a licence amongst other things. A starting point of 18 months was set for each count and reduced in mitigation to 12 months.
10. In submitting that a custodial sentence was appropriate, the Crown cited LCJ Whitten QC in Fale’ofa where he said:

“In R v Kohinoa [2008] Tonga LR 41, Andrew J stated that in offences involving firearms, it was almost inevitable that a jail sentence would follow. And in Tu’iha’ateiho, ibid, Cato J observed that licensing and security of firearms in any society is a matter of great importance. His Honour added that Parliament has set a clear directive to the Courts that serious consequences should follow a conviction for being in possession of an unlicensed firearm”.

11. The Crown proposes a starting point of 18 - 24 months to be reduced by 9 months and the resulting sentence of 9 - 15 months to be fully suspended.
    

Pre -Sentencing Report

12. The Defendant did not attend the Probation Office as directed, therefore no pre-sentencing report could be prepared.

Starting point

13. Section 4(2)(b) of the Arms and Ammunition Act provides a maximum statutory penalty of 5 years imprisonment, for the use of firearms without a licence.
14. In Fale’ofa, ibid. LCJ Whitten QC identified a number of issues including a number of gaps in the agreed facts that inhibited the process of assessing the seriousness of the offending and circumstances of the offender to a certain degree. For those reasons, His Honour rejected the assertion that the firing of the weapon was a mistake and held the view that the case was above the ordinary case of using a fiream without a licence.
15. His Honour also referered to the cases of Hekisou Fifita^[1] and R v Koka^[2] both involving an intention to intimidate and considered them more serious. He stated that the unlicenced use of a firearm was plainly more serious than mere possession. I agree.
16. Similar to Fale’ofa, the facts in the instant case did not identify what type of firearm the Defendant used; where or from whom he acquired the firearm; whether it was licenced and to whom and/or what happened to it after the offending.
17. Oddly, the Defendant, despite pleading guilty to the use of a firearm without a licence, still insisted that he killed the pig with an axe.
18. Notwithstanding the gaps in the facts and having preferred Tevita and Akanesi’s version of the facts that the Defendant used a firearm to shoot the pig, I accept that the Defendant did not use the firearm to intimidate or to point it directly at any person. It was used for the sole purpose of killing the pig for food.
19. For those reasons, I place this offending lower in range compared to Fale’ofa and Holani.
20. Accordingly, having regard to the seriousness of the offence and the principles referred to above, the relevant comparable cases, the principles of punishment, deterrence, denunciation and the maximum statutory penalty, I set a starting point of 18 months imprisonment.
21. For the Defendant’s good record, guilty plea and co-operation with the Police, I deduct 30%, resulting in a final sentence of 12 months imprisonment.

Suspension

22. Having considered the applicable principles in Mo’unga^[3] for suspsension, I accept the Crown’s submission that the Defendant is entitled to a full suspension of his sentence.

Result

23. The Defendant is convicted for using arms without a licence and sentenced to 12 months imprisonment to be fully suspended for a period of 2 years on the following conditions, namely, that during the said period of suspension, the Defendant is to:
    1. not commit any offence punishable by imprisonment during the period of suspension;
    2. perform 80 hours community service as directed by the Probation Office;
24. Failure to comply with any of those conditions may result in the suspension being rescinded, in which case, the Defendant may be required to serve the suspended sentence.
    

P. Tupou KC
JUDGE

NUKU’ALOFA

14 April, 2023

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^[1] R v Fifita [2018] Tonga LR 28
^[2] CR 55 of 2021
^[3] Mo’unga v Rex [1998] Tonga LR 154