R v Vaka - Sentence [2024] TOSC 86; CR 95, 96 & 72 of 2024 (20 November 2024)

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

CR 95, 96 & 72/2024

REX
-v-
Taniela VAKA

Sentence

BEFORE: THE HONOURABLE COOPER J
Counsel: Mr. Fisi’iahi for the Prosecution
Mr. Vaka was unrepresented.

Date of
sentence: 20 NOVEMBER 2024

NON-PERFECTED FINAL

ORDER OF COOPER J
DATE OF ORDER 20 NOVEMBER 2024

SENTENCE: 12 years and 10 months’ imprisonment.

REASONS

The offences

1. The offences for which Mr. Vaka entered guilty pleas in the Magistrates’ court were:

95/2024

2. This indictment number covers diverse summary matters that were all before the Magistrates’ court and Mr. Vaka pleaded guilty to.
3. I have not been provided with any details of these offences save what the charge was and the date of commission.

CR 688-689/2023; possession 0.52 grams methamphetamine and a utensil, a test tube, committed 20 November 2023.

CR 697-698/2023; Housebreaking and theft of money or goods to the value of $1,800.00, committed on 1 December 2023.

CR 50/2024; possession of 0.19 grams methamphetamine, committed on 24 January 2024.

The indictable offences

96/2024

4. Armed robbery, committed on 20 November 2023. The Victim was walking to his car at approximately 1130 hrs, having bought groceries from a store in Kolofo’ou. He got into his vehicle.
5. Mr. Vaka got into the front passenger seat, produced a knife (no further detail has been made available) and instructed the victim to drive.
6. He was directed by Mr. Vaka to drive to ‘Anana. As he drove, at knife point he took an opportunity to flee and jumped out of the car.
7. The victim went to the police and reported the loss of his car, worth approximately $20,000.00 and the groceries and cash therein, worth about $5,782.00. Albeit that only $50.00 was made up in cash.
8. Mr. Vaka was arrested that same day. He was interviewed on 4 December 2023 and admitted the offences.
9. Extraordinarily, it appears he was then released on bail. For a man who had just admitted an armed robbery that appears to raise some serious questions.

CR 73/2024

10. On 23 January 2024 the victims, mother and 27-year-old daughter, were in their car, at their gate, awaiting the husband and father of their family to lock the front gate and get in their car to join them.
11. Instead, Mr. Vaka, armed with a knife got into the rear seat and at knife point commanded the two women to drive.
12. He took a handbag belonging to one of the victims and stole cash from it, TOP $ 1,000.00 and NZ$ 200.00.
13. Mr. Vaka then got out of the vehicle, but not before threatening both ladies that he would return to find them at their home if they reported this offence to the police.
14. A member of the public who knows Mr. Vaka saw the women being threatened in their car with a knife and raised the alarm. The police chased him but he hid. He evaded them initially.
15. The Police attended the victims and recovered the knife from the car.
16. I note that no details as to this weapon have been provided, either for this offence or the last.
17. No circumstances have been provided to explain Mr. Vaka’s arrest.
18. On 12 June 2024 Mr. Vaka appeared before the Supreme Court and pleaded guilty to the two allegation of armed robbery. I note there was a third like offence Mr. Vaka faced, but Crown could not proceed as the witness had returned to her home country and was not contactable.

Sentence

19. In calculating the correct starting point for this offence I have reviewed this Court’s decision in CR 77-79/2021; R v Toki and others.

“Comparable sentences

20. Armed robbery carries a maximum sentence of 20 years and a greater starting point is appropriate when lethal weapons are employed.
21. There are two aspects to sentencing that are at the fore of my mind, firstly what is the correct tariff for armed robbery where a lethal weapon is used but there are no injuries caused? Secondly, how to calculate the overall sentence where there is a string of offences of a similar character?
22. In the first robbery a steel bar was used as the weapon to threaten the victim, but in the latter two robberies the weapons on both occasions were a knife and a machete.
23. The steel bar in the first robbery appears to be a meter in length. In fact, if one watches the CCTV for that robbery, the inside camera, camera 2 and slow that down at 07:57:36 one can see the end that is raised above the head of the robber is curved around and it has every appearance of being a crow bar and I am sure that is what it was.
24. In relation to the second robbery the knife appears to be kitchen knife with a black handle and a blade at least some 6 inches long, the machete has a blade that appears to be at least a meter in length, both plain to see on the CCTV.
25. In the third robbery, by looking carefully at the CCTV clips that were served, viewing the camera entitled “Entrance & Exit” and slowing down the playback to as much as one can, at 13 seconds from the start, the robber with the knife, Mr. Pahulu, can be seen holding it in his left hand as he ran into the shop, the blade protruding down from his clenched hand and it appears to be some 6 inches in length. The other robber, Mr. Toki, had the machete and just like in the robbery of 9^th January that appears to be one with a blade at least a meter in length.
26. In relation to each offence no one was struck with any of the weapons or physically injured in any way.
27. That said these would have been terrifying incidents for the victims and that fear would plainly leave some form of lasting impression.
28. Cases were lethal weapons were used in armed robberies and injury sustained to the victims the starting point has been one of 10 years, for example Samuela ‘Alatini v Rex, AC 4/2018, a shotgun was used to shoot a man who tried to stop the robbery; the Court of Appeal concluded that a starting point of 10 years was the correct approach.
29. Heamani Lopeti v Rex, AC 11/2018 a robbery where the victim was struck with a machete and seriously injured by the defendant.
30. Rex v Alaisia Matangi CR 68/18 and 117/18, these were two separate offences of armed robbery. The first a robbery of a restaurant armed with a machete, the second breaking into the residential home of a Chinese couple where two men burst in and brandished knives to rob the victims.
31. The starting point of 8 ½ years was adopted for the first offence and 7 years for the second.
32. Rex v ‘Amoni Fifita & Pakileata Fukofuka 49 & 51 2017 Cato J went on to consider the appropriate tariff for a case of armed robbery where a machete had been brandished but not used and no physical injuries had been inflicted.

“Thus, in Maikolo Fifita CR 109-11/ 15 the starting point I adopted was 10 years where the accused was one of three men who had pleaded guilty to an armed robbery of a Chinese store in Vava’u using a rifle as a weapon. There was no injury in that case, but in Sefo Moala Cr 166 of 2012 on a charge of attempted robbery where the prisoner had shot a service station employee in the leg I sentenced him to 9 years imprisonment.”

33. He then adopted a starting point of 8 ½ years.
34. In Foliaki v Rex [2015] TOCA 12, the co-defendants in Samuela ‘Alatini v Rex, the Court of Appeal took into account the aggravating features of disguises, vulnerable victims and planning, as well the “...deployment of firearms and the actual violence inflicted.^[1]” before confirming 10 years was the correct starting point.
35. In this case the prosecution has submitted that for each defendant in respect of each’s head count a starting point of 10 years is appropriate.
36. I have carefully considered their submissions on this and also the cumulative sentence that they submit ought to be passed.
37. Following the analysis of the cases concerning armed robbery I consider the Crown’s submissions arrived at too high a tariff.

...

38. Next I turn to the question of how I should approach the overall tariff for the series of offences.
39. Rex v ‘Alamoni Makafilia CR 87/2019 & 19/2020, three armed robberies were considered, with sentences of 11 years, 12 years and 10 years imposed. The first three years of the first was cumulative to the second giving a total of 15 years; two years of the third cumulative to that to give a total of 17.
40. In Samuela ‘Alantini v Rex the appellant was sentenced for two offences, a March 2008 robbery and a May 2008 armed robbery. A cumulative sentence of 13 years was considered the correct tariff (before the discount of 25 % for an early guilty plea and then the activation of a suspended sentence gave the final tariff 12 years and 9 months).
41. The point I make being the Court of Appeal took the 3 years of the robbery sentence to add the armed robbery sentence for two separate offences committed relatively closely in time.
42. I respectfully consider that approach puts into effect a careful consideration of the totality principle, I have seen it used in these two examples and as such it provides a formula I shall adopt.
43. In Rex v ‘Amoni Fifita & Pakileata Fukofuka Cato J stated of offences of armed robbery:

“The principal sentencing rationales for this kind of offending is deterrence and protection of society, and sentences for armed robbery must reflect this.”

44. He could well have added that the need for punishment for committing these vicious offences was essential.”

Pre-sentence report

45. I set out exactly what the report has stated:

SOURCE OF INFORMATION

Interviewees

- Taniela Vaka (Accused)
- Vailoa Kavaliku (Town Officer of Kolofo’ou & Nualei)

PERSONAL HISTORY

• Family

1. Mr. Taniela Vaka will be referred to as the “Accused” in this report. The Accused was born on Septemer 19, 1982, to Sione and Foeata Vaka of Fua’amotu, Tongatapu. He is the eldest child of seven siblings.
2. The Accused born here in Tonga, and his family traveled to New Zealand when he was 5 years old on a visiting visa, and they stayed there and never returned. He mentioned that some of his siblings are now in New Zealand and Australia.
3. He said that his deportation from New Zealand in 2010 stemmed from a murder case. At the times he is in Tonga, he first lives at his wife’s family’s home at Ha’alalo.
4. However, in 2010, his parents visited here in Tonga, and then they sent him back to Fua’amotu to live with them.
5. The Accused married to Ana Finekifolau of Ha’alalo and has five children, which are three boys and two girls. In 2014, the Accused’s family migrated to Australia until now.
6. He further added that in 2014 he moved from Fua’amotu and stayed by himself at Nualei in their own home until now.
   

RELIGION & VILLAGE COMMUNITY

7. The Accused grew up in the church of the Assembly of God, and he married in the Catholic Church. He said that he is only a Catholic’s member but he hardly attended any church services.
8. According to Mr. Vailoa Kavaliku, he did not know about the Accused.
   

EDUCATION

9. The Accused attended his Year 7 – 8 at Otahuhu Intermediate School and attended his secondary school on Otahuhu College for his Year 9 – 11. He continued on to Wesley College for his Year 12 – 13 due to his rugby talent.
10. He said that he was a member of the Counties Manukau rugby under 20 team.
    

HEALTH

11. The Accused has good health conditions. Aside he consumed alcohol, smoking cigarettes and selling of drugs.
    

OCCUPATION/INCOME

12. The Accused is unemployed.
13. He used to work in construction and earn approximately $400 weekly. He said he also works as a security guard at the Ambassador China; he earns $350 weekly.
14. He further added that his family has sent money for him fortnightly approximately $800.
    

FACTOR RELATING TO OFFENDING

• Accused’s version of the offence

15. In the interview with the Accused, he admitted to the offence and accepted the summary of facts is true.
16. He added that he intended to do this offence because he knew the victim’s home when he used to work as a construction worker. He said that one day the construction manager sent him to perform work at the victim’s residence so he knows that they have money.
17. He further added that on the day of the offence, he was dropped off at Fanga, and then he walked straight to the victim’s residence and committed this offence due to his lack of money related to drug trafficking.
    

• Accused’s Character Post-Offence

18. The Accused expressed remorse for his wrongdoing.
19. He said he had not apologized to the victim because he has no time due to his remanded at Hu’atolitoli prison.
20. However, he asked for the court leniency and mercy.
    

CRIMINAL HISTORY

21. The Accused has previous conviction at Supreme Court as shown below:

CR 75/2012: Count 1- ARMED ROBBERRY

This case was sentence on 21 September, 2012. The Accused was sentenced to three and a half years with sentence to take into account time served on remand on this charge.

CR 136/2012: Count 1 & 2: HOUSEBREAKING & ROBBERY

In this case, the Accused was sentence on 09 November, 2012 as follow: -

On the robberies- 4 years concurrent with one another

Housebreaking- 3 years concurrent with one another, and concurrent with the robberies.

The housebreaking and the robberies on this indictment CR 136/2012 are to be served cumulatively upon the three and half year sentence on CR 75/2012.

- Overall sentence 7 and half years- on a totality basis not considered to be excessive.

22. In addition, the Accused have current cases in the Magistrate Court as shown below:

CR 653-654/2023, CR 710/2023

23. Additionally, the Accused had a previous conviction for kidnapping and had been sentenced to four years imprisonment in New Zealand.
    

SUMMARY

24. In summary, Mr. Taniela Vaka is now 42-years old. He is the eldest child of seven siblings. He is married to Ana Finekifolau and has five children. He lived at Nualei.
25. He was deported from New Zealand after committing a crime related to murder.
26. The Accused’s family lives at Australia with his parents.
27. He has no health illness; he is generally healthy.
28. The Accused expressed remorse for his wrongdoing.
29. He is not a first-time offender; he has previous convictions.
30. Mr. Vailoa Kavaliku did not know about the Accused.
    

ASSESSMENT

31. The Accused has pleaded guilty and is appearing for sentencing on one count related to robbery.
32. He did not fully remorse for his offence because he was not willing to do his apologize by himself he was questioned if the probation officer will able to do it on behalf of him. .
33. The Accused is at “high risk” of re-offending because he committed similar offending in his previous conviction.
    

RECOMMENDATION

34. It is hereby respectfully submitted and recommended for the Court to consider a custody sentence and any other appropriate sentence for the Accused to consider.
    

Aggravating features

1. Possession of a deadly weapon
2. Victim targeted through knowledge while working in the area
3. Kidnapping the victims
4. Two victims taken by force on one occasion
5. Offence committed on bail for offence
6. Robbery targeting women as vulnerable victims
7. History of like offences

Mitigating features

1. Guilty plea

CR 73/2024

46. This must be the head count because there were two victims, both women and as such both vulnerable. An 8 ½ year starting point I increase to 9 ½ because Mr. Vaka was on police bail at the time for a like offence.
47. That I further increase to 10 ½ years because there were two victims. That is again increased to 11 ½ years because of the element of kidnap of both women, that was involved in the commission of the offence.
48. For his early guilty plea, I reduce that to 8 ½ years.

CR 96/2024

49. A starting point of 8 ½ years, I increase to 9 ½ years to reflect the kidnapping that was part of the commission of the armed robbery in this case.
50. That I reduce to 6 ½ years to reflect the early guilty plea.
    

CR 688 – 689/2023

51. Possession 0.5 grams methamphetamine
52. The statutory maximum sentence pursuant to section 4 (1) (a) (iv) Illicit Drugs Control Act is a fine of up to $1,000,000.00 or up to life imprisonment or both.
53. Comparative sentences
    1. ‘Unga (CR 28/2019) – the Defendant pleaded guilty to possession of 0.47

grams of methamphetamine. She was a first time offender. She was

sentenced to 8 months’ imprisonment, fully suspended on conditions.

2. Master Tome Suasau (CR 120/2020) – the Defendant pleaded guilty to

possession of 0.48 grams of methamphetamine. He was a first-time

offender. A starting point of 12 months was set, reduced by 4 months for

mitigation, resulting in a sentence of 8 months’ imprisonment, fully

suspended for two years on conditions including 70 hours community

service.

54. For the offence of possession 0.5 grams methamphetamine, a starting point of 12 months, reduced to 8 for his guilty plea.
55. For possession of utensil, no separate penalty.

CR 697 – 698

56. I have no further information before me concerning these offences than that I set out above. I work on the basis this was an offence of simple housebreaking.
57. The maximum sentence is, pursuant to section 173 (6) (a) Criminal Offences Act is 3 years’ imprisonment.
58. For an offence of theft below the value of $10,000.00 the maximum sentence pursuant to section 145 (a) Criminal Offences Act is 3 years’ imprisonment.
59. I set a sentence of 6 months for each offence, reduced to 4 for the timely guilty plea. That is a toral of 8 months’ imprisonment.
60. CR 50/2024 0.19 grams methamphetamine a sentence of 6 months, reduced to 4 for his guilty plea. That sentence will be concurrent with the overall sentence imposed.
61. In assessing how to arrive at an overall sentence and bearing in mind the totality principle I have adopted the approach this Court took in R v Toki (supra).
    • For Cr 96/2024; 3 years will be added to the head count.
    • In respect of CR 688 – 689/2024; 8 months will be added to the head count.
    • For the offences CR 697 – 698; 8 months will be added to the head count.
62. That gives a sentence of 12 years and 10 months’ imprisonment.

Suspension

63. The principles to be applied when considering whether to suspend a sentence are as set out in Mo’unga [1998] Tonga LR 154 and are established to encourage and assist with rehabilitation.
64. Regrettably Mr. Vaka has committed offences of this kind time and again. He indulged in drug use and, I have no doubt, then robbed and stole to fund that habit. He did not care the harm and fear he caused.
65. He clearly is a high risk of re-offending and to society at large. He must serve his full term and no part can be suspended.
66. His sentence will be back dated to his first remand, 21 May 2024.
    

Total sentence

67. 12 years and 10 months’ imprisonment.
    

SUPREME COURT	20 NOVEMBER 2024
NUKU’ALOFA	COOPER J

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^[1] Samuela ‘Alantini v Rex AC 4 2018; at paragraph 8