R v Fifita [2024] TOSC 3; CR 174 of 2023 (6 March 2024)

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

CR 174 of 2023

REX
-v-
LIVINGI FIFITA

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mr S. Patelesio for the Prosecution
Mr S. Fili for the Defendant
Date: 6 March, 2024

The proceedings

1. On 9 January, 2024, the Defendant pleaded guilty to one count of possession of an arm without a license (Count 1), contrary to section 4(1) and 2(b) of the Arms and Ammunition Act, one count of carrying an arm with intent to commit an offence (Count 2), contrary to section 42 of the said Act, one count of trespassing with an arm in building (Count 3), contrary to section 45 of the same Act, and one count of common assault (Count 4), contrary to section 112(g) of the Criminal Offences Act.

The offending

2. On 21 August, 2023, at around 5:00pm, the Complainant, Tokolahi Paki of Pea was finishing his day shift at Costlow. The Manager of the store called the Defendant, Livingi Fifita, (also of Pea) to work the night shift. The Defendant said he was ill and unable to come to work.
3. On hearing the conversation, the Complainant grabbed the phone from the Manager and told the Defendant to quit his job. The Defendant was angry and told the Complainant to mind his own business. This led to a heated exchange between the two in which the Complainant insisted that the Defendant came over and settle the matter.
4. The Defendant showed up in his car with a .22 rifle. He stepped out and walked to the veranda and aimed the rifle at the Complainant and said, “I’ll shoot the shit out of you.”
5. The Complainant was afraid. He tried to escape through the main entrance door of Costlow but was unsuccessful.
6. The Defendant kept pointing the rifle at the Complainant and then returned to his car and left.
7. When the Defendant was interviewed by police, he admitted that the rifle belonged to his late father and claim he threw it into the sea. He said that if the Complainant charged towards him, he would have hit him on the head with the rifle.
8. The Defendant cooperated with the Police and admitted to the offending. The Police confirmed he does not have a license to possess a .22 rifle.

Crown’s submissions

9. The Crown submits the aggravating features of the offending were:
   1. The Defendant threatened the Complainant with a firearm at a public place;
   2. The firearm was unlicensed;
   100. No provocation;
   4. The firearm was not found; and
   5. The Defendant has previous convictions.
10. The Crown submits the following as mitigating features;
    1. Ealy guilty plea;
    2. Remorse;
    100. Cooperation with the Police; and
    4. The Defendant and his family apologized to the Complainant.
11. The Crown referred to the following comparable sentences:

For the charge of trespassing with arm in building (Count 3)

1. Rex v Petueli Mafi Tuita (CR17/2019) – the sentence imposed on the Defendant in this case was a fine of $500. However, the Crown wishes to propose a term of imprisonment instead for the Defendant in the present case, to reflect the overall seriousness of the offending.

For Count 1, Count 2 and Count 4

2. Rex v Kefu Tuila (CR 146/2011) – The Defendant pleaded guilty to one count of housebreaking. He had entered a house whilst drunk had kissed a sleeping woman. He ran out when she woke up and confronted him. He had told her he was her husband.

In the second incident, for an earlier incident of provocation where he had been beaten up, he had obtained a bolt action rifle and shot the complainant in the arm. There was a wound but no serious harm. He was sentenced, to 3 years’ imprisonment for the bodily harm and 1 year imprisonment for possession of the firearm and ammunition.

100. Rex v Viliami Taipaleti (CR 104/2013) – The Defendant pleaded guilty to one count of causing serious bodily harm and possession of an arm and ammunition without a licence. He had caused a commotion whilst intoxicated and got into an argument with the complainant. He went to his house and returned with a rifle and shot the complainant in his left shoulder. A starting point of 4 years’ imprisonment for count 1 was set, reduced by 18 months, resulting in a sentence of 2 ½ years’ imprisonment. He was sentenced to 6 months’ imprisonment on counts 2 and 3, to be served concurrently with count 1. The final 16 months of count 1 was suspended on conditions

4. Rex v Tu’a Tavake & Sosefo Langi Kautai (CR 102&103/2015) – Kautai, after trial, was convicted of causing serious bodily harm having shot two victims with his .22 rifle. He had accused them of stealing his tapa bark. For the first victim, a starting point of 4 ½ years’ imprisonment was set, reduced by 18 months for mitigation, resulting in a sentence of 3 years’ imprisonment and $1,500 compensation. For the second victim, a starting point of 4 years imprisonment was set, reduced by 18 months, resulting in a sentence of 30 months and $1,500 compensation. The two sentences were ordered to be served consecutively with the final two years of the sentence were suspended, on conditions.
5. Rex v Ta’ufo’ou Fale’ofa (CR 54/2021) – the Defendant pleaded guilty, relevantly to one count of using an arm without a license (Count5) amongst other charges. The Defendant had entered a house at Kolonga with a .45 calibre pistol. There, he threatened one individual in the household and fired the weapon at an unoccupied vehicle parked outside. A starting point of 2 years imprisonment was imposed with a deduction of 4 months for mitigation. This resulted in a final sentence of 1 year and 8 months imprisonment. The final 10 months was suspended for 1 year on conditions.
6. Rex v Soape Ta’e’iloa Koka (CR 55/2021) –the Defendant was convicted for discharging an arm with intent to intimidate. He was hunting with the Complainant’s husband when the Complainant came to pick her husband, an argument arose as the husband did not want to leave. When the Defendant intervened, the Complainant shouted and swore. As the Complainant drove off in her car, the Defendant fired a shot at her vehicle hitting the top left side of the windshield. Using the United Kingdom’s Sentencing Guidance relating to Firearms Offences, Cooper J after deducting 30% for the Defendants guilty plea arrived at a sentence of 2 years and 9 months imprisonment. For the lack of previous convictions, the final 12 months was suspended for 2 years on conditions.

12. The Crown submitted the following sentencing formulation:
    1. Count 1 - a starting point of 12 months imprisonment;
    2. Count 2 is the head sentence – a starting point of 3 years imprisonment;
    100. Count 3 - a starting point of 2 years imprisonment;
    4. Count 4 - a starting point of 12 months imprisonment;
    5. For the early guilty plea, cooperation with the police, apology and remorse:
       1. Count 1 be reduced by 4 months, resulting in a final sentence of 8 months;
       2. Count 2 be reduced by 12 months, resulting in a final sentence of 2 years;
       3. Count 3 be reduced by 8 months, resulting in a final sentence of 18 months; and
       4. Count 4 is reduced by 4 months, resulting in a final sentence of 8 months imprisonment.
    6. Counts 1, 3and 4 be served concurrently to Count 2; and
    7. The sentence be fully suspended.

Defendant’s submissions

13. Mr Fili, for the Defendant, submitted the mitigating features in favour of his client were:
    1. His age of 43 years and is married with seven children;
    2. The firearm was his fathers;
    100. He was awaiting result of his application for a licence;
    4. He is a first-time offender;
    5. He pleaded guilty at the earliest opportunity;
    6. He is remorseful;
    7. There was provocation over the phone;
    8. He cooperated with the Police and admitted to the offending; and
    9. He has changed since the offending;
14. Letters from the Parliament Representative of Tongatapu 7, Vaini District Officer, Pea Town Officer, LDS Stake President, Stake Bishop and the Defendant’s wife were submitted in support of the Defendant’s good character.
15. Mr Fili proposed a fully suspended sentence for the Defendant.

Pre-sentencing report

16. Mr Livingi Fifita is 43 years of age. He is the eldest of six children of Mr Malakai Manu Fe’ao and Mrs ‘Iatilili Fonua Fe’ao of Malapo. He was raised in a disciplined and decent Mormon family.
17. He attended Liahona High School and dropped out after 4^th form. He started working at a wood carving workshop and then helped his father at the bush. He had been employed as a night watchman at the Costlow store for 7 years but has lost the job since the offending. He has started his own engineering workshop to help his family financially.
18. The Defendant has been married to his wife, Mrs Meleseini Lavemai of Popua, for 17 years. They live at Pea and have seven children. The eldest being 16 years of age and the youngest is 6 years old. He is an active member of the Church of Jesus Christ Latter Day Saints.
19. According to the Defendant, the Complainant works a day shift, while he takes the night shift. When one takes time off, the other will cover that time. The matter started when he called the Manager to take the night off to attend a church program. The Defendant intervened and took the phone off the Manager and was throwing abusive, disrespect and hateful words to him. It upset him and he felt disrespected. He took his father’s rifle and drove to Costlow to confront the Complainant.
20. He intended to intimidate the Complainant as he was physically stronger than him. On arriving at Costlow, he got out of his car and pointed the rifle at the Complainant. The Complainant, upon seeing the rifle, ran towards the main entrance (sliding door) of the store and collided with the door as it was closed. The Defendant then returned to his car and left. He felt uneasy of what he did and he drove towards the Ha’ateiho beach and threw the rifle into the sea.
21. Letters from the town and district officer, parliament representative of Tongatapu 7 and his church leaders spoke of the Defendant being a man of good character and a very responsible citizen of his church and community.
22. The probation officer was of the view that the Defendant is truly remorseful. He apologized to the Complainant, but it was rejected. He was placed in the range of low risk to re-offend reflected by his genuine remorse, guilty plea, good character and lack of previous convictions. The probation officer recommended a fully suspended sentence on conditions including community work.

Starting Point

23. The maximum statutory penalty for each count is as below:
    1. Count 1 – 5 years’ imprisonment;
    2. Count 2 – 10 years’ imprisonment;
    100. Count 3 – 5 years’ imprisonment; and
    4. Count 4 – a fine of $5,000 or 1 year imprisonment.
24. Clearly the Crown is correct that Count 2 should be the head sentence. Having regard to the seriousness of the offending, the comparable sentences and principles referred to above, the importance of imposing sentences which adequately reflect the community’s denunciation for this type of violence and the need for deterrence, I set the following starting points:
    1. Count 1 – 12 months imprisonment;
    2. Count 2 – 3 years’ imprisonment;
    100. Count 3 – 2 years’ imprisonment; and
    4. Count 4 – 12 months imprisonment.

Mitigation

25. For the Defendant’s early guilty plea, clear criminal record and cooperation with the police I deduct 30% off the starting points resulting in final sentences of:
    1. Count 1 – 8 months;
    2. Count 2 – 2 years;
    100. Count 3 – 16 months;
    4. Count 4 – 8 months; and
    5. Counts 1, 3 and 4 shall be served concurrent to Count 2.

Suspension

26. As against the principles in Mo’unga [1998] Tonga LR 154, the Defendant;
    1. Is not young but possesses a previous good record;
    2. Has been described by the probation officer as “low risk of re-offending” and coupled with the references filed in his favour provide some confidence that he is likely to take the opportunity of a suspended sentence to rehabilitate himself;
    100. Cooperated with the authorities.
27. For those reasons, I accept that the Defendant is entitled to part of his sentence being suspended.
28. Conversely, the Crown and the Defendant’s submission together with the Pre-sentencing report propose a fully suspended sentence. But in referring to the comparable sentences relied on by the Crown, all carried a custodial sentence each. Furthermore, those cases emphasized the need to condemn and deter the use of firearms to settle disputes or punish others. For example, in Taipaleti, the Court held:

“that presentation of firearms and the discharge of them must be condemned as a deterrent for those who are disposed to settle arguments or scores in the Tongan community.”

29. In Kautai & Tavake the court opined that:

“self-help and retributive action of this kind, ... involving violence, vigilante action and the use of firearms is denounced as incompatible with civilized conduct. No citizen has the right, no matter what he conceives may be the seriousness of crimes committed against him, to take the law into his own hands and punish others without due process and trial. ...”

30. By the Defendant’s own admission, he took his father’s rifle and drove to the Costlow Supermarket to confront and intimidate the Complainant reflecting a premeditated act on his part to resolve their argument by threatening and /or scaring the Complainant. He succeeded.
31. I have also considered R v Kohinoa [2008] TOLaw Rp 9, where Andrew J opined that:

“In offences involving firearms it is almost inevitable that a gaol sentence will follow.”

and in Tu’iha’ateiho [2015] TOSC 8, Cato J observed that:

“[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..”

32. In contrast, I have looked at cases involving firearms whereby sentences were fully suspended, such as R v Talia’uli [1997] TLR 7, R v Liou [2010] TLR 181, R v Vakapuna [2018] TOSC 81 and R Fukofuka [2022] TOSC 96. In my view, they are easily distinguished as they all involved pistols and were not used to intimidate another as in this instant.
33. For example, in Talia’uli, the Judge said there was no evidence of use of the firearm. In Liou the firearm was discovered by police under a table. In Vakapuna the firearm was discovered in an attic and in Fukofuka, the firearm was uncovered at a checkpoint inside a bag in the boot of the car.
34. Despite the court not being bound by the Crown’s indicative sentencing submissions, it is faced with a dilemma when in all likelihood, a Defendant’s guilty plea rests on the basis of the Crown’s indicative sentencing submission that on a guilty plea, any imposed sentence will be suspended in full, as in this case. This is aggravated when the submissions and authorities relied on (especially by the Crown) fail to support the proposed indicative sentence.
35. Nevertheless, I have directed myself to the case of R v Fifita [2018] TOSC 6. In that case the Defendant was at the Nauti Ruby bar drinking. He was taken out by the complainant, a security at the bar. The two had an altercation outside, after which the Defendant went to his car in the parking area took out his .22 rifle and took it back to the bar to shoot the complainant. A third party managed to remove the rifle from him and he was arrested. The rifle was not loaded. The Defendant pleaded guilty. A starting point of 3 years and 3 months imprisonment was set. For his guilty plea, good character and valuable work for the community, a period of 18 months was deducted from the starting point, leaving a final sentence of 21 months.
36. Cato J considered the following factors in fully suspending his sentence:
    1. He was a first-time offender;
    2. He cooperated with the police;
    100. No person was hurt in the incident;
    4. The Defendant, as a result of the incident has fallen from grace and suffered humiliation;
    5. The incident was out of character; and
    6. A lengthy period of community work was imposed to serve as a retributive and punishment factor in his sentence.
37. The Defendant’s sentence was therefore fully suspended on conditions including 140 hours community service.
38. I find the facts in Fifita intimately consistent with those in the present case. I am persuaded that it is open to me to follow Fifita and fully suspend the Defendant’s sentence here and I do so on conditions, I set out below.

Result

39. The Defendant is convicted of:
    1. Count 1 – and sentenced to 8 months imprisonment;
    2. Count 2 – and sentenced to 2 years imprisonment;
    100. Count 3 – and sentenced to 16 months imprisonment; and
    4. Count 4 – and sentenced to 8 months imprisonment.
40. Counts 1, 3 and 4 shall be served concurrent to Count 2 to be fully suspended for a period of 30 months on the following conditions, namely that, during the period of suspension, the Defendant is to:
    1. Not commit any offence punishable by imprisonment;
    2. Be placed on probation;
    100. Report to the probation office within 48 hours;
    4. Complete a life skill or such other course(s) as his probation officer may direct; and
    5. Perform 140 hours community work under the supervision of the probation officer.
41. Failure to comply with any of those conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of his sentence.
    

NUKU’ALOFA	P. TUPOU KC
6 March, 2024	ACTING LORD CHIEF JUSTICE