R v Fainga'a [2024] TOSC 108; CR 182 of 2024 (29 November 2024)

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

CR 182 of 2024

BETWEEN:
REX
-Prosecution

AND:
KALOLAINE FAINGA’A
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr J Fifita for the Crown Prosecution
The Accused in Person
Date: 29 November 2024

THE CHARGES

1. On 15 September 2024, the Accused pleaded guilty to the following charge:
   1. Count 1: Serious Housebreaking, contrary to section 173(1)(b) of the Criminal Offences Act.
   2. Count 2: Theft, contrary to section 143(a) and 145(b) of the Criminal Offences Act.
      

CROWN SUBMISSIONS

2. The Crown filed their sentencing submissions on 26 November 2024 to assist the Court
3. Aggravating and Mitigating factors were submitted along with the following caselaw:
   1. R v Tupa [ [2017] TOSC 35]
   2. R v ‘Ealelei [CR 162 of 2018]
   100. R v Akau [ [2021] TOSC 150]
   4. R v Kolomalu [ [2012] TOCA 25]
4. The Crown recommends a custodial sentence and maintains their position initially submitted in their Indicative Sentencing Submission of 4 years imprisonment with no suspension.
5. It is further submitted that the 22 months suspended in CR 27 of 2024 be activated and to be served cumulatively to the sentence in this matter.
   

PRESENTENCE REPORT

6. A presentence report was filed from the Probation Office on 26 November 2024.
7. The report detailed the Accused’s upbringing, personal history and factors relating to the offence with their recommendation.
8. The Probation Office recommend a custodial sentence for the Accused with any other order deemed necessary by the Court.
   

DISCUSSION

9. Kalolaine Fainga’a you have pleaded guilty to serious housebreaking and theft to the value of $13,830 and none of the stolen goods have been recovered.
10. Housebreaking is always a serious matter, it destroys security, it engenders fear and causes financial distress. Here the goods involved included jewellery that had irreplaceable value, you initially denied being involved and only pleaded guilty after fingerprint evidence left you with no choice. You also have previous convictions.
11. I accept the starting point of 4 years on Count 1 which gives you an initial starting point of 4 years imprisonment. I deduct 1 year to reflect your guilty plea, this however opportunistic matter rather than premeditated, I deduct a further 6 months in mitigation leaving you with 2 ½ years imprisonment.
12. For Count 2, I impose a sentence of 2 ½ years concurrent to Count 1.
13. In addition, it appears you were given a suspended sentence of 22 months last year for receiving stolen property.
14. The upshot is, that sentence is to be activated in full resulting in a total term of 52 months’ imprisonment. I suspend the 12 months of that sentence on conditions.
    

FINAL RESULT

15. For Count 1 on Serious Housebreaking, I impose a sentence of 2 ½ years imprisonment
16. For Count 2 on Theft, I impose a sentence of 2 ½ years imprisonment concurrent to Count 1.
17. The Accused’s suspended sentence of 22 months in CR 27 of 2023 is re-activated and is to be served cumulatively to the sentence in CR 182/24.
18. In total, the Accused is to serve a period of 4 years and 4 months imprisonment with the 12 months suspended for 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. This sentence is to be backdated to 15 October 2024, when the Accused was first remanded for this matter.
    

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