R v Afimeimo'unga [2024] TOSC 9; CR 186 of 2023 (2 April 2024)

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

CR 186 of 2023

REX
-v-
Vaha Afimeimo’unga

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mr. S. Patelesio for the Prosecution
The Defendant in person
Date: 2 April, 2024

The charge

1. On 19 January 2024, the Defendant pleaded guilty to one count of possession of arm without a license, contrary to section 4(1) and (2)(b) of the Arms and Ammunition Act, and one count of possession of ammunition without a license, contrary to section 4(1) and 2(b) of the said Act.

The offending

2. On the evening of 14 August, 2023, after 6pm, the Police in executing a warrant of arrest for ‘Etina Fonokalafi were at Viliami Tapa’atoutai’s (“Viliami”) residence at Fua’amotu.
3. When the Police arrived, Viliami greeted them. Police Officer Fifita explained their presence at his residence. Viliami explained that Ms. Fonokalafi had left. The police noticed a male person hastening about, outside of the main house.
4. At that point, Police Officer Mafi informed Officer Fifita that they have discovered gun ammunition on top of a table under a mango tree at the property. Viliami was cautioned that pursuant to sections 122 and 123 of the Tonga Police Act, a search of his property will be conducted.
5. Viliami understood and permitted the search to proceed. Inside, the Police found the Defendant, Vaha Afimeimo’unga, hiding in one of the rooms. At the time, he was on bail and subject to a curfew which restricted him to be at his home at Haveluloto between the hours of 6pm and 6am each day. He was in breach of that curfew.
6. The Police detained the Defendant and continued looking for ‘Etina Fonokalafi. After searching the main house, the police searched a small house underneath a mango tree on the property and uncovered a .22 rifle.
7. Viliami and the Defendant were informed of their right to remain silent. When questioned about the firearm and ammunition, Viliami revealed it was the Defendant who brought it. The Defendant said it was for shooting a dog.
8. The Defendant was arrested and remanded in the Central Police Station. Police confirmed the Defendant did not hold a license to possess the .22 rifle (Serial Number – 66075) and the six .22 ammunition.

Crown’s submissions

9. The Crown submitted the aggravating features for the Defendant were that, he:
   1. is not a first-time offender;
   2. committed the present offence whilst on bail for the offendings in CR369-373, 417, 421-423 & 628/2023.
   100. had no license to possess arms and ammunition;
   4. intended to use the firearm to shoot a dog.
10. The Crown submitted the mitigating features were, his:
    1. early guilty plea; and
    2. limited cooperation with the Police.
11. The Crown referred to five comparable cases:
    1. Rex v Siliva’ai Huni (CR 139/2017) –the Defendant was convicted for the cultivation of illicit drugs, namely 698.92 grams of cannabis; and possession of a .22 rifle and 6 .22 rifle ammunitions without a license. He was not a first time offender and was not considered a likely candidate for rehabilitation. The Defendant was sentenced to 2 ½ years’ imprisonment for the possession of arm and ammunition without a license charge, to be served concurrent with the sentence of 5 years and 5 months for the cultivation of illicit drugs charge.

2. Rex v Siosifa Vakapuna (CR 133/2018) – the Defendant was convicted for one count of possession of illicit drugs, and one count of possession of arms (a .22 rifle) and ammunition (24 .22 live bullets). He was sentenced for the possession of arm to 1 year and 6 months imprisonment and 6 months imprisonment for the ammunition to be served concurrent to the 1 year 9 months sentence for possession of illicit drugs. The sentence was fully suspended for 2 years on conditions.

100. Rex v Kuale Patolo (CR 561-563 of 2019) – the Defendant pleaded guilty to possession of a 20-gauge shotgun, 4 gauge shotgun ammunition and 13 .22 ammunition without a license. He was a first time offender and cooperated with the Police. For the possession of firearm, the Defendant was fined $200 and for the ammunition charge, he was discharged without conviction.

4. Rex v Manase Mohenoa (CR 171/2018) –the Defendant pleaded guilty to one count of possessing an arm without a license, one count of possessing ammunition without a license (a 20-gauge shotgun (double barrel) with 4 live bullets) and one count of carrying arms with intent to commit an offence. A starting point of 3 years and 3 months imprisonment was imposed for the possession of arm without license. Cato J deducted 2 years from the starting point by way of mitigation and sentenced the Defendant to 1 year and 3 months imprisonment. The sentence was fully suspended on strict conditions. For the other charges, he was convicted and discharged.
5. R v Luo Wopeng (CR 108/2023) – the Defendant pleaded guilty to possession of an arm without a license (9mm pistol) and possession of ammunition without a license (5x 9mm ammunition). He was a first time offender and cooperated with the Police. A 9mm firearm is prohibited for the public to possess, use or carry. He was sentenced to a fine of $700.00 for the possession of the firearm, and $500.00 for the ammunition charge. The sentence for the possession of ammunition was concurrent to the possession of the firearm.

12. The Crown suggested the following sentencing formulation;
    1. that a custodial sentence was appropriate in this instant;
    2. the appropriate starting is 18 months imprisonment;
    100. to be discounted by 6 months in consideration of the mitigating features;
    4. the Defendant is not entitled to any suspension in view of the principles in Mo’unga;
    5. the final sentence is 12 months imprisonment.

Pre-sentencing report

13. The report reveals an unhappy upbringing around alcohol, physical abuse, extra-marital relationships and control resulting in his parents’ separation. That took the Defendant, his two siblings and their mother to New Zealand.
14. While in New Zealand, his mother re-married and life was good until she and his step-father moved to Hastings. His step-father was a Pastor and was called to their church at Waiuku in 1999.
15. The Defendant was left in the care of a maternal uncle at Otara. It is reported that he experienced violence, physical and verbal abuse at that home. The Defendant felt he was treated differently and was made responsible for most of the house chores. He felt isolated and traumatised causing him to find a life in the streets with his peers. He quit school and started to experience with alcohol and drugs.
16. In 2004, he married ‘Ana Matakaiongo and secured permanent residency in New Zealand. He took online courses and completed his form 7 certificate in 2006. In 2007, he completed a course in Road Construction.
17. Unfortunately, his permanent residency was cancelled in 2009 and he was deported to Tonga for drunk driving. He managed to enter New Zealand using false identity to obtain a passport. He was exposed and deported to Tonga for the second time.
18. Before his deportation, he had worked for a Road Construction Company in New Zealand. Here, he worked for the Pacific Sunrise Company from 2014 – 2019 and from 2020 – 2023, he was an employed by the ‘Ofa Construction Company.
19. The Defendant’s father married Sesilia and he has a stepsister, ‘Ilaisaane from that marriage. Sesilia reported that when the Defendant returned to Tonga, he stayed with them at Havelu. He later moved out but visited them when his father was still alive. After his father passed, the Defendant returned with friends to live with them. They partied and drank at the house making Sesilia feel unsafe in her home.
20. She asked the Defendant to leave and the Defendant reacted violently. Sesilia lodged a complaint with the Town Officer of Havelu and the Police, resulting in his removal from Havelu.
21. He and ‘Ana share 6 children and three grandchildren ranging from 21 to 7 years of age. ‘Ana reports a difficult marriage due to the Defendant’s extra-marital affairs and criminal activities. She and the children visit him and hope that he will turn his life around for the good.
22. The Defendant admitted to the offending and claimed the firearm and ammunitions belong to Lisiate Pulu of Kolonga. He admitted his addiction to alcohol and drugs. But regrets committing this offence and promised to change for his family. He claimed to be a member of the City Impact Church at Sia’atoutai. The pastor of that church denies his claim.
23. The probation officer reports that at the time of the report, the Defendant was held at the maximum security prison at Hu’atolitoli for escaping from prison. It was his opinion that the Defendant is at a very high risk of re-offending as reflected by his lack of good character, previous convictions and his non-compliance with the decision of the authorities. The probation officer believes that the Defendant’s remorse is not genuine and recommends a custodial sentence.
24. The Defendant is 41 years of age and is the second of three children.

Starting Point

25. The maximum statutory penalty for possession of arms and ammunition without a licence is imprisonment for a term not exceeding 5 years.
26. As noted by the Crown the range of sentencing in the comparable sentences it relies on is varied. I note in the case of Wopeng all of the 4 comparable authorities cited to the Court were restricted to fines. The firearm involved in Wopeng was a 9mm pistol, a prohibited firearm, reserved for police and authorised persons only. Wopeng was fined $700 for the prohibited firearm and $500 for the ammunition concurrently.
27. In contrast to Wopeng and the comparable cases cited therein, the Court in Vakapuna considered custodial sentence but (with a degree of reluctance) fully suspended the Defendant’s sentences because it was “impressed” on the Court by Crown Counsel’s submissions to do so.
28. In Huni, the court found the presence of the firearm and ammunition was a part of a professional criminal operation conducted by the Defendant. The purpose of the firearm and ammunition was to protect and deter unwelcomed visitors to the site and the Defendant was sentenced to 2 years and 6 months imprisonment for both the firearm and ammunition charges. That is not the case in this instant.
29. I was unable to access some of the decisions cited by the Crown so I called the matter and requested copies of the cases and further assistance from the Crown in relation to the varied approach at least on the comparable cases it relied on. I received supplementary submissions to that effect on 28 February, 2024 for which I am most grateful.
30. Having regard to the statutory maximum penalty, the seriousness of the offending, the principles of punishment, denunciation and personal and general deterrence and the comparative sentences provided by the Crown, I consider an appropriate sentence of 18 months imprisonment appropriate for count 1 and 12 months imprisonment for count 2 to be served concurrently to count 1.

Mitigation

31. For his early guilty plea and cooperation with the police, I deduct 6 months from each count, resulting in a final sentence of 12 months imprisonment for count 1 and 6 months imprisonment for count 2.
    

Suspension

32. I accept that the applicable principles in Mo’unga v R CA 15/97 for suspension do not favour the Defendant. He is not young and has previous convictions. He has recently committed a series of unrelated offendings in 2023. The instant offending demonstrates his deliberate disregard of the law and any sanctions imposed on him, thereby eliminating any expectation that he will capably utilise any suspended period for rehabilitation.
    

Cumulative or Concurrent to existing sentence

33. The Crown in considering the Defendant’s existing custodial sentence of 6 months imprisonment imposed on 10 November, 2023 for CR 369-373, 421-423 and 628 of 2023 for unlawful possession of utensils; reckless driving; resisting a police officer and simple housebreaking; recommended 6 months from this instant sentence to be added onto the Defendant’s existing sentence to be served cumulatively.
    
34. I agree and am satisfied that this offending is distinct from the offendings in his existing sentence and as the Crown submits, a discrete sentence for this offending is warranted to avoid “subsuming and thereby neutralizing the purport of the new offence.”^[1]
    
35. For those reasons and consistent with the principles of totality, I add 6 month of the instant sentence to the existing sentence of 6 months in CR 369-373, 421-423 and 628 of 2023 to be served cumulatively.
    

Result

36. Vaha Afimeimo’unga is convicted of:
    
    1. one count of possession of arm without a license and sentenced to 12 months imprisonment; and
       
    2. one count of possession of ammunition without a license and sentenced to 6 months imprisonment to be served concurrent to count 1,
       
37. Six months of the final sentence in this instant is added onto the Defendant’s existing sentence in CR 369-373, 421-423 and 628 of 2023 to be served cumulatively, commencing at the end of his existing 6 months sentence.
    
38. Subject to compliance with the said conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 12 months in prison.
    
39. Pursuant to s 37 of the Arms and Ammunition Act the firearm and ammunition is to be forfeited to the Crown.
    

NUKU’ALOFA	P. Tupou KC
2 April, 2024	ACTING LORD CHIEF JUSTICE

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^[1] R v ‘Ofa ‘Alifeleti (CR 110/22 at [47]