R v Palefau [2024] TOSC 36; CR 38 of 2024 (5 June 2024)

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

CR 38 of 2024

BETWEEN:
REX

Prosecution

AND:
FREDRICK PALEFAU

Accused

SENTENCE

BEFORE: ACTING JUSTICE LANGI

Counsel: Mrs. Vainikolo for the Crown Prosecution
The Accused in Person

Date of Sentence: 5 June 2024

1. THE CHARGES

1. On 10 April 2024, the Defendant pled guilty to the following charges:
   1. Count 1: Armed Robbery contrary to section 154(1) and (3) of the Criminal Offences Act.
   2. Count 2: Serious Assault with Intent to Rob contrary to section 155(1) and (3) of the Criminal Offences Act.
      

2. SUMMARY OF FACTS

2. The Complainant is Lin Xi, a 36-year-old female, residing in Fasi. She is the manager of Hungry Takeaway-Zenith, a fast-food restaurant located along Tupoulahi Road in Fasi.
3. The Defendant is Fredrick Palefau, a 25-year-old male, residing in Fangaloto.
4. On or about 28 august 2023, around 7pm the Complainant was working at her fast-food restaurant.
5. The Defendant was outside by the entrance door of the restaurant smoking. At the time he was wearing a black hoodie, black pants, brown boots and a mask around his face.
6. At the same time, Viliami Holeva and Tonga Havea entered the restaurant to order some food.
7. While the Complainant was working on Viliami and Tonga’s order, the Defendant approached her from behind the counter and grabbed the cashier drawer. It contained $20,000 and two Chinese national passports inside a black pouch.
8. The Complainant and the Defendant scuffled over the drawer then the Defendant pulled out a small axe and swung it at the Complainant’s left arm causing her to let go of the drawer
9. The Defendant ran towards the door, but he slipped and fell causing some of the money inside the drawer to fall on the floor, including the small black pouch.
10. Viliami then reached out and grabbed a gas bottle to throw at the Defendant to slow him down
11. The Defendant stood up, lifted the axe as if he was going to swing it at Viliami and then grabbed some of the cash on the floor and the small black pouch and ran out of the restaurant.
12. After the offending the Complainant noticed that she had a small scratch on her right arm where the Defendant had hit her with the axe.
13. At about 7:23pm the complainant lodged a complaint with the police. The police responded and viewed the CCTV footage and were able to identify the Defendant as the person in the black hoodie.
14. On or about 29 August 2023 at 3:00am the Defendant arrived at his girlfriend’s house at Popua, unloaded a lot of alcohol from the car and proceeded to drink alcohol with Niu Fifita, his girlfriend’s sister and others.
15. Later that morning, the Defendant and others went to Nauti Ruby to purchase more alcohol.
16. At about 12:18pm, the Defendant and others had returned to Popua as the Police also arrived and observed the Defendant standing beside a black car.
17. Police found in the boot of the car the small axe used in the robbery, a black backpack, a black hoodie and brown shoes which they identified as the same clothing worn and axe carried by the robbery suspect in the CCTV footage.
18. The Defendant was arrested and was ordered by the Magistrate to be held in custody until 19 September 2023 for a psychiatric assessment to be conducted.
19. On or about 6 September 2023, the Defendant was released from prison by police. He was given his rights to remain silent and contact a lawyer, family member or friend. The Defendant voluntarily informed police to take him to Takaunove to get the passports as he then remembered where he put them.
20. When they arrived at Takaunove, the Defendant gave the police a worn-out pillowcase, concealed inside was a maroon covered passport belonging to Wenchao Lin and $5,300.
21. On 8 September 2023, the police handed over the passport and money to the owner of the restaurant.
22. On 10 September 2023, the police conducted a record of interview with the Defendant. He was given his rights and he elected to remain silent.
23. The Defendant has previous convictions.
    
    100. AGGRAVATING & MITIGATING FACTORS
24. The Crown submits the following as aggravating factors in this case:
    1. the serious nature of the offending, particularly the use of an axe.
    2. the scratch to the Complainant’s arm because of the armed robbery which has left a permanent scar on her arm.
    100. the taking of $20,000 from the Complainant and two passports, of which only $5,300.00 and both passports were returned (although this is disputed by the Accused in the Pre-Sentence Report, to be $8,000.00, the Crown submits that $5,300.00 is correct, because this was part of the facts the Accused pled guilty to when arraigned on 10 April 2024);
    4. the Accused’s use of the same axe to ward off Viliami Holeva, who was a customer waiting for his order at the Complainant’s restaurant, at the time of the offending, in order to carry out the armed robbery;
    5. the fear that must undoubtedly be instilled in the Complainant after the incident, particularly being a foreign national living and undertaking business in Tonga.
    6. The motivation of the offending was to get quick cash to purchase drugs and alcohol for himself and his friends (paragraph 17 of Pre-Sentence Report);
    7. The offending was pre-meditated, evident from the Defendant using a mask to conceal his identity, and the use of a weapon to affect his purpose. He was also seen standing outside of the Complainant’s restaurant before he proceeded to commit the offending.
    8. The Complainant and direct Victim of the armed robbery was a woman.
    9. The Defendant has similar previous offending in 2017 i.e. simple bodily harm and theft.
       
25. The Crown submits the following as mitigating factors in this case:
    1. Early guilty plea
       

4. RELEVANT LEGISLATION

26. The penalty for armed robbery is imprisonment for any period not exceeding 20 years according to section 154(3) of the Criminal Offences Act.
27. The penalty for serious assault with intent to rob is imprisonment for any period not exceeding 10 years according to section 155(3)(a) of the Criminal Offences Act.
    
    5. PREVIOUS CONVICTIONS
28. The Crown submitted the Defendant’s record of his previous convictions. The earliest conviction on record in 2015 for disturbance to a range of drug related offences, theft and bodily harm.
29. The Defendant’s most recent conviction is in the Magistrates Court for possession of illicit drugs on 5 April 2024.In total, the Defendant has a total of 8 previous convictions in the Magistrates Court.
    
    6. SENTENCING COMPARABLES
30. The Crown submits the following case to assist the Court in determining an appropriate sentence for the accused.
    
    1. R v Toki anors [2021] TOSC 175
31. The case involved 3 defendants who were all sentenced after pleading guilty to a string of armed robberies against three separate Chinese run supermarkets in Tongatapu, from 7 – 12 January 2021.
32. The defendants were Mr. Rodney Toki, Mr. Tuiaki Muli Pahulu and Mr. Taniela Pohahau.
33. The first robbery on 8 January 2021, involved the Accused robbing the Complainant of $1,500.00. Pohahau held a steel bar over his head with both hands in a gesture to club the Complainant. The money was taken by the Accused from the counter.
34. On the second robbery on 9 January 2021, Toki and Pohahau rushed into the store armed with a knife and machete respectively. They both covered their faces to conceal their identity. Pohahau used the machete to force the Complainant away from his counter, which allowed both he and Toki to clean the contents of the register, which was $1,900.00. Mr. Pahulu drove their get-away car.
35. On the third and final robbery on 11 January 2021, after buying drugs, Pahulu and Toki were armed with a knife and machete respectively. Toki used the machete to ward off the Complainant and effect their joint robbery of $7,400 cash and a handbag that contained among other things three Chinese passports and an iPad. Pohahau was not involved in this robbery.
36. No injuries were sustained by any of the Complainants during the armed robberies.
37. In Cooper J’s sentencing remarks, he conducted an analysis of the correct tariff imposed for armed robbery where a lethal weapon is used but where no injuries were caused verses where injuries were caused. For cases involving injury, the starting point imposed ranged from 7 to 10 years (paragraphs 38 - 41), and for cases not involving injury, the starting point imposed ranged from 8.5 years to 10 years (paragraphs 42 - 44).
38. For Toki, Cooper J imposed the following starting points
    1. 11 January robbery (head sentence) – 8.5 years
    2. 9 January robbery – 8 years
    100. 8 January robbery – 8 years.
39. Toki was not a first-time offender. He received some discount for his late guilty plea (10%), his sentences were served partly cumulative. He did not meet the requirements in Mo’unga for suspension, and so none of his total sentence was suspended.
40. As for Pohahau, Cooper J imposed the following starting points
    1. 9 January robbery (head sentence) – 8.5 years
    2. 8 January robbery – 8 years
41. Pohahau also was not a first-time offender. He pleaded guilty on the day of trial which afforded him 10% discount as well. His sentences were partially cumulative, none of which were suspended.
42. As for Pahulu, Cooper J imposed the following starting points
    1. 11 January robbery (head sentence) – 8 years
    2. 8 January robbery – 6 years
    100. 9 January robbery – 6 years
43. These were served partly cumulative. For his timely guilty plea, his sentence was reduced by 30%. Because he also made attempts to change his life, this was further reduced by 24 months, resulting in 5 years imprisonment. The last 2 years of his sentence was suspended for 2 years on conditions.
    
    7. CROWN’S POSITION ON SENTENCING
44. The Crown submit that based on the offending and the relevant authority cited, it is appropriate to maintain the Crown’s position recommended in its Indicative Sentencing Submission, filed on 8 March 2024, namely:
    1. A custodial sentence;
    2. Count 1 (armed robbery) be taken as the head count;
    100. For Count 1,
         1. A starting point of 9 – 10 years’ imprisonment (this already reflects the aggravating features in this case);
         2. For the mitigating features mentioned above, 2 years and 6 months mitigation be permitted;
         3. Resulting sentence of 6.5 – 7.5 years imprisonment;
         4. On the issue of suspension, the Crown submits the Accused is eligible for a partially suspended sentence, and that the final 12 months be suspended on the following conditions:
            1. Not to commit any offence punishable by imprisonment;
            2. To be placed on probation;
            3. Report to probation office within 48 hours of his release from prison, and thereafter as directed by his probation officer;
            4. Abstain from alcohol
            5. (subject to having done while in prison) complete course in life skills and alcohol and drugs awareness as directed by his probation officer (emphasis on this in light of the fact that the offending was to obtain drugs and alcohol).
    4. For Count 2,
       1. A staring point of 4.5 – 5.5 years’ imprisonment (comparable sentences have not been provided, but given the maximum sentence for armed robbery is 20 years, and assault with intent to rob is 10 years, the Crown submits that a starting point within this range is suitable);
       2. 18 months mitigation factors mentioned above;
       100. Resulting sentence of 3 – 4 years’ imprisonment;
       4. Sentence to be served concurrently to Count 1.
45. In summary, the Crown proposes an overall sentence of 7.5 years imprisonment, the final 12 months suspended on the conditions mentioned above.
46. Considering the comparable sentences, the mitigating and aggravating factors against the Defendant, the Crown leaves it to the discretion of the Court to determine the appropriate sentence.
    
    8. PRESENTENCE REPORT

1. Personal History

47. The Defendant, Fredrick Palefau was born on 15 February 1998 to the late Lopeti Palefau and Telesia Fevaleaki of Fangaloto. The Defendant is the third out of right children that his parents had. The Defendant’s father passed away in 2008 and his mother is now married to Siosiua Fevaleaki, they currently live in Fanagaloto.
48. The Defendant dropped out of school in Form 4 from Tonga College ‘Atele due to joining peer groups, laziness, smoking and drinking alcohol. According to the Defendant’s mother, he was a good person of good character but when his father passed away, he began to smoke, drink and associate with the peers that went clubbing and such.
49. The Defendant’s mother also stated that he moved out of home in stayed with his peers, being disobedient at home and making decisions for himself without any consultation from her or his older siblings. She also states that he had a stable upbringing but after his father died in his early childhood, it resulted in a lack of discipline as his father was a military officer.
50. The Defendant belongs to the Seventh-Day Adventist Church at Fangaloto but hardly participates in any activities including Sunday services.
51. The Defendant is generally healthy. He smokes, drinks and has also used drugs. He spends his leisure hours hanging out with his friends and smoking.
52. In 2020, the Defendant entered as a military officer in His Majesty’s Armed Forces. Mr Vaha’i confirmed the Defendant entered for 3 years of military affidavit service as a private military officer.
53. On 24 August 2023, the Defendant was punished by a Defence Force Judge and dismissed from the force with disgrace. His dismissal was due to his failure to report to work in December 2022 and after the military received some of his sentencings from Magistrate Court. He was dismissed before the end of his affidavit years of service.
54. The Defendant is unemployed and relies on his parents for financial support. The Defendant’s mother earns a weekly income of $200 from selling homemade baking products and an additional $500 fortnightly from the Defendant’s stepfather as a military officer. Additional income the family receive are from the Defendant’s siblings in Australia and New Zealand.
    
    2. Factors Relating to the Offence
55. The Defendant’s alcohol consuming behaviour and drug abuse may be considered as a risk factor when considering his criminal nature in this offence.
56. On interview with the Defendant, he admitted to the offences and accepted the summary of facts except for the amount of money returned to the owner of the restaurant. The defendant states he returned $8,000 to the police officer and that he counted the money before handing it over to the police officer.
57. Prior to the offending, he was driven by an urgent need of money and the reason he committed the offence was to satisfy his needs. The Defendant states he needs money to buy drugs and alcohol for him and his peers.
58. The Defendant expresses some remorse for his offending and states that he feels guilty for what he did. The Defendant asks the court for mercy and leniency.
59. The Defendant has previous convictions related to illegal drugs. The Defendant is currently serving a 3-month sentence under CR 534 of 2024 from the Magistrates Court. The Defendant also has other pending cases with the Magistrates Court.
    
    3. Summary
60. The Defendant is now 26 years old. He is the third of right children, single and a local resident of Fangaloto.
61. The Defendant has expressed some remorse for his offending.
62. He does not have any health illness and is generally healthy.
63. He is not a first-time offender; he has prior convictions.
64. The Defendant is a school drop-out, had an unstable upbringing since his father passed away when he was young resulting in a lack of discipline for the Defendant.
65. The Defendant made wrong choice in getting involved with illegal drugs and ended up with various convictions.
    
    4. Assessment
66. The Defendant pled guilty and is now appearing for sentencing on two counts related to robbery. He also showed some remorse for the offending
67. There is a risk of heightened reoffending if the Defendant continues to involve himself with drugs and associate with negative peers leading to irrational decisions.
68. Mr Vaha’i stated that the Defendant had good discipline during his service in the force. His performance was also good in the radio and technology department as a recruit officer.
69. The defendant is disobedient at home and refuses to listen to the advice of his parents.
    
    5. Recommendation
70. It is recommended that the Defendant be given a partly suspended sentence on the following conditions during the suspension of his term including:
    1. The Defendant is not to commit any offence punishable by imprisonment.
    2. He is to notify a probation officer within 48 hours after being released from prison.
    100. He is to be placed on probation and live where directed by the probation officer.
    4. He is to undergo a counselling course on drug abuse problems under the direction of Rev. Semisi Kava while serving his term in Hu’atolitoli Prison.
       

1. DISCUSSION

71. Unfortunately, attacks on Chinese owned businesses are becoming all too common as is evident from Toki & Ors and other previous armed robbery cases;
72. It is clear from the list of his previous convictions that the Accused has major alcohol and drug addiction which has led him to commit this offence. Dr. Puloka confirms that the Accused suffers from schizophrenia and mental and behavioural disorder brought on by the use of cannabinoids and amphetamine. He is currently taking medication for those disorders;
73. The maximum sentence for armed robbery is 20 years imprisonment. The principal sentencing rationales for this kind of offending is deterrence and protection of society, and sentences for armed robbery must reflect this;
74. I set a starting point of 10 years imprisonment to reflect the courts denunciation of this kind of offending and for the protection of society and particularly foreign business owners whose businesses seem to be the targets for armed robbery;
75. For the only mitigating factor of his early guilty plea, I deduct 2 ½ years.’ from the starting point leaving a total of 7 ½ years’ imprisonment;
76. The final two years of the sentence is suspended for three years on condition;
77. For the second count of assault with intention to commit armed robbery, the accused is sentenced to 3 years imprisonment to be served concurrent to Count 1;
    
    10. RESULT
78. Count 1 – 7 ½ years’ imprisonment. The final 2 ½ years is suspended for three years on the following conditions:
    
    • Mr. Palefau is not to commit any further offences punishable by imprisonment for a period of 3 years.
    • The Accused is to serve 5 years imprisonment backdated to when he was first taken into custody which was 4 April 2024;
    • He is to contact the probation officer within 48 hours of being released from prison;
79. Count 2 – 3 years’ imprisonment to be served concurrent to count 1;
80. Further to any orders of the Prison Commissioner and his staff, the Accused is to be placed under the supervision and care of the Prison Chaplain, Reverend Semisi Kava who will overlook mental and spiritual counselling for the Accused;
    

NUKU’ALOFA: 05 June 2024

‘E. M. Langi
J U D G E