R v Ma'u [2025] TOSC 27; CR 235 of 2024 (14 March 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 235 of 2024

BETWEEN:
REX
-Prosecution

AND:
VILIAMI TINO MA’U
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC
Appearance: Mrs T Vainikolo for the Crown Prosecution
The Defendant in person
Date: 14 March 2025

1. THE CHARGES

1. The Accused pleaded guilty to the following charges;
   1. On 29 January 2025, Count 1: Serious Housebreaking, contrary to section 173(1)(b) and (5) of the Criminal offences Act
   2. On 6 February 2025, Count 2: Theft, contrary to sections 143(a) and 145(b) of the Criminal Offences Act

2. CROWN SUBMISSIONS

2. On 12 March 2025, the Crown filed their sentencing submissions to assist the Court.
3. Aggravating and mitigating features were submitted along with the following caselaw in support;
   1. Rex v Tatafu [2023] TOSC 32
   2. Rex v Malafu CR 133 of 2016
   100. Rex v Malupo CR 1 of 2023
   4. Rex v Kanongata’a & Anor CR 115-116 of 2022
4. The Crown recommended the following sentence:
   1. Count 1: 26 months’ imprisonment
   2. Count 2: 9 months’ imprisonment concurrent to Count 1.
5. The final 8 months of the sentence is to be suspended for 2 years on conditions.
   100. PRESENTENCE REPORT
6. A presentence report was filed from the Probation Office 14 March 2025.
7. The report detailed your upbringing, personal history and factors relating to the offence with their recommendation.
8. You are at “high-risk” of reoffending given your pattern of offending, lack of good character and your little to no connection to your community.
9. The Probation Office concludes their report by recommending a partially suspended sentence.
   4. DISCUSSION
10. You have pleaded guilty to serious housebreaking and theft of goods to the value of $1,848. Both arise out of the same criminal activity.
11. You broke into commercial property by dismantling the window. You ransacked the shelves and the amount of goods which you took is that I have indicated was $1,848.
12. Housebreaking is always a serious offence but in your case some of the aggravating features which accompany these incidents are absent. These were commercial not residential premises, at the time there was no one present, there was no violence, and you owned up to your wrongdoing when arrested and co-operated with the police.
13. The serious feature of your case is your previous offending. You have been convicted of offences of dishonesty on 4 previous occasions the last being in 2021 when you were put on probation by the magistrates for theft.
14. You appear not to have learnt your lesson, and I am satisfied that there is no other way of dealing with you but by imposing an immediate custodial sentence.
15. I have considered the helpful comparable sentences filed by the crown but of course each case must be decided on its own particular facts.
16. The head sentence is Count 1 for serious housebreaking where I take 3 years as the starting point but because of your plea of guilty and your early cooperation with the police, reduce that by 12 months resulting in 24 months imprisonment.
17. Count 2 seems to be part and parcel of count 1 and therefore a concurrent sentence of 12 months is appropriate which should be reduced by 3 months to take account of the mitigation I have already indicated, making a total of 9 months concurrent to Count 1.
18. I have considered carefully whether all or any of your sentence should be suspended and have concluded that 8 months is appropriate for 2 years during which you must not commit offense punishable by imprisonment, to report to the probation office within 24 hours after your release from prison and you must undertake a live skills course under direction of the probation office.
    5. FINAL RESULT
19. For Count 1 of Serious Housebreaking, I impose a sentence of 24 months’ imprisonment.
20. For Count 2 of Theft, I impose a sentence of 9 months’ imprisonment concurrent to Count 1.
21. I suspend the last 8 months of your sentence on conditions. The result is an immediate term of 16 months’ imprisonment, followed by 8 months suspended sentence for 2 years on the following conditions;
    1. You must not commit any further offences punishable by imprisonment
    2. You must report to the probation office within 48 hours of your release from prison
    100. You must complete a live skills course at the direction of the Probation Officer
         

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NUKU’ALOFA

14 March 2025