R v Funaki [2024] TOSC 105; CR 157 of 2024 (29 November 2024)

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

CR 157 & 181 of 2024

BETWEEN:
REX
-Prosecution

AND:

MAKA SOLE FUNAKI a.k.a MAKA FOLAU SOLE
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr A Fisi’iahi for the Crown Prosecution
The Accused in Person
Date: 29 November 2024

THE CHARGES
CR 157 of 2024

1. On 10 September 2024, the Accused pleaded guilty to the following charge:
   1. Count 1: Theft (a red Massey Ferguson Tractor) contrary to section 143(a) and 145(b) of the Criminal Offences Act.

CR 181 of 2024

2. On 15 October 2024, the Accused pleaded guilty with his co-accused in CR 179/24 to their following respective charges:
   1. Count 6: Possession of Arms (a 12-gauge shotgun) without a license contrary to section 4(1) and (2)(b) of the Arms and Ammunitions Act
   2. Count 7: Possession of Arms (a 12-gauge ammunition) without a license contrary to section 4(1) and (2)(b) of the Arms and Ammunitions Act
      

CROWN SUBMISSIONS

1. The Crown submitted their sentencing submissions on 28 November 2024 to assist the Court.
2. Aggravating and Mitigating were further submitted for the Accused with the following caselaw:
   1. R v Vaioleti [2024 TOSC 60]
   2. R v Pahulu [CR 30 of 2023]
   100. R v Siulangapo [2023 TOSC 41]
3. The Crown’s recommended sentence for the Accused is 24 months’ imprisonment with the final 12 months suspended for 2 years on conditions.
   

PRESENTENCE REPORT

4. On 26 November 2024, the Probation Office filed a report submitting no submission of a Pre-Sentence Report due to failure to show up by the Accused.
5. The sentence today proceeds as scheduled without a Pre-Sentence Report on that basis.
   

DISCUSSION
CR 157 of 2024

6. On this indictment you pleaded guilty to the theft of a tractor with no less than $58,200. You must’ve realised that would’ve caused considerable financial distress and operational difficulty for the owner concerned who is a farmer.
7. It was obvious that the source of the theft would be quickly traced as indeed it was, but this is a serious matter of a of a valued agricultural implement and must be marked by a term of imprisonment.
8. In your case, the starting point is 24 months however I bear in mind your lack of previous convictions, your early guilty plea and I reduce the sentence by 9 months to one of 15 months’ imprisonment.

CR 181 of 2024

9. Count 6 possession of 12-gauge shotgun and the possession of a shotgun without a license is a very serious matter and control of a lethal instrument is necessary for the well-being of the community at large is of utter importance, again a sentence of imprisonment is unavoidable.
10. The starting point in your case is 18 months which I reduced by six months to account of your early guilty plea resulting in a term of 12 months’ imprisonment.
11. Count 7 possession of ammunition I take a starting point of 6 months which I reduced by 2 months resulting in a sentence of 4 months should be served concurrently with count 1.
12. In CR 157/2024 for the theft of the tractor you are sentenced to 1 year and 3 months imprisonment. In CR 181/2024 for both counts being in possession of firearms and ammunition you are sentenced to 12 months’ imprisonment and is to be served concurrent to the sentence in CR 157/2024.
13. The overall sentence for the Accused is 15 months’ imprisonment. The last 6 months is be suspended for two years on condition that you do not commit any offense punishable by imprisonment, to report the probation office within 48 hours we release from custody, and you must complete a skills awareness course at the direction of the probation office the upshot is that you will serve 9 months in custody.
    

FINAL RESULT

CR 157 of 2024

14. For Count 1 on Theft (a red Massey Ferguson Tractor valued at $56,200), I impose a sentence of 15 months’ imprisonment

CR 181 of 2024

15. For Count 6, I impose a sentence of 12 months’ imprisonment.
16. For Count 7, I impose a sentence of 4 months imprisonment to be served concurrently to Count 7.
17. The sentence in CR 181/2024 is to be served concurrently to that of CR 157/2024.
18. For the avoidance of doubt, the Accused is to serve a total sentence of 15 months’ imprisonment with the last 6 months suspended for a period of 2 years on the following conditions:
    1. You must not commit any offence punishable by imprisonment
    2. You must report to the probation office within 48 hours of your release from custody
    100. You must complete a life skills awareness course at the direction of the Probation Officer
19. Pursuant to section 37 of the Arms and Ammunitions Act, both arms and ammunitions is to be forfeited to Tonga Police.
    

NUKU’ALOFA
HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
29 November 2024