R v Fa'uhiva [2025] TOSC 31; CR-VAV 9 of 2024 (28 March 2025)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NEIAFU REGISTRY

CR-VAV 9 of 2024

BETWEEN:

REX

-Prosecution

AND:

‘ATUNAISA LALAMEIPAU FA’UHIVA

-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances : Director of Public Prosecution & Mr G Aleamotu’a Crown Prosecution

via AVL

Ms L Fonua for the Accused

Date: 28 March 2025

1. THE CHARGES

1. On 7 March 2025, you pleaded guilty to the following charges;
   1. Count 1: Possession of an Arm without a License, contrary to section 4(1) and (2)(b) of the Arms and Ammunitions Act.
   2. Count 2: Possession of Ammunition without a License, contrary to section 4(1) and (2)(b) of the Arms and Ammunitions Act.
   100. Count 3: Possession of Utensils, contrary to section 5A of the Illicit Drugs Control Act.
   4. Count 4: Possession of Illicit Drugs, contrary to 4(1)(a)(i) of the Illicit Drugs Control Act.

2. CROWN SUBMISSIONS

1. On 21 March 2025, the Crown filed their sentencing submissions to assist the Court.
2. Aggravating and mitigating factors were submitted along with the following caselaw in support;
   1. Rex v Afimeimo’unga CR 186 of 2023
   2. Rex v Vakapuna CR 133 of 2018
   100. Rex v Huni & Ors TOSC 33, CR 135-136 of 2017
   4. Rex v Uasike aka Fanga CR 25 of 2024
   5. Rex v Manuofetoa & Ors CR 147-149 of 2024
3. In your case the Crown recommended the following sentence:
   1. Count 1 – 16 months’ imprisonment concurrent to Count 1
   2. Count 2 – 12 months’ imprisonment concurrent to Count 1
   100. Count 3 – 10 months’ imprisonment concurrent to Count 1
   4. Count 4 – 9 months imprisonment concurrent to Count 1
4. It is further recommended that your sentence be fully suspended on conditions. I will deal with the consideration of suspension later in this sentence.
   100. PRESENTENCE REPORT & MITIGATION PLEA
2. A report was received from the Probation Office on 26 March 2025 where I was told about your family, upbringing and personal history.
3. You state that the gun found was borrowed from a licensed owner which you used to kill chicken, and the cannabis was sold was to support your plantation business.
4. You are currently married and have 7 children with your wife. You are Catholic but not an active member, you were injured last year but have now recovered and you have not been properly employed since 2016 when you participated in a fruit picking scheme.
5. According to the Probation Office, and I accept, you are remorseful for the offending.
6. I received further submissions about you from your learned Counsel this morning which I have read and take into consideration in dealing with your sentence.
   4. DISCUSSION
7. You were apprehended following police receiving intelligence, and cannabis seeds were found in your motor car which you were sharing with 3 women. Also, in the boot of the car, there was a loaded rifle, and ammunition was found in the car itself.
8. I am quite satisfied that you are a small-time street seller in cannabis. Indeed, in your plantation in the past you have grown cannabis which you have sold. What is serious about your case is the presence of a loaded firearm in your car albeit in the boot.
9. The possession of firearms by drug dealers is an increasing problem here in Tonga and the Court must take a serious view. I accept that in Tonga that there is not yet gang warfare over drugs which has decimated life in many large cities in Western Europe, Australia and the United States, but the courts must nip in the bud conduct which might lead to a rash of criminality involving lethal weapons.
10. I accept that the amount of cannabis seeds in question was small. I accept that you pleaded guilty at the first opportunity.
11. I am told and I am prepared to accept that you regret what happened and that you are remorseful. However, a sentence of imprisonment is necessary to impress upon you and the public that the Court will not tolerate behaviour such as yours.
    5. STARTING POINT
12. The head sentence is Count 1 possessing a firearm. This is a serious offence and sentence of custody is inevitable. I impose a starting point 24 months imprisonment however because you have no previous convictions for this type of offense and your cooperation and early guilty plea, I reduce the sentence by 8 months resulting in a total 16 months’ imprisonment.
13. For Count 2, 18 months discounted by 6 months making a total sentence of 12 months.
14. For Count 3, 15 months because I’m satisfied that you are a drugs dealer but reduce the sentence by 5 months so that the sentence is 10 months.
15. Count 4, 12 months as a starting point reduced by 3 months making a total of 9 months imprisonment.
16. All these sentences I have just imposed in Counts 2 to 5 is to run concurrently to the sentence in Count 1.
    6. SUSPENSION
17. I have considered whether or not the sentences should be suspended and have consulted the leading case of Mo’unga. You are not young, you are 32 years old but this again is a first-time offence and although I’m not as optimistic as the prosecution in believing that you are a low risk offender but I accept the assessment of the probation office that you are a medium risk offender.
18. I have struggled to consider whether the whole or part of the sentence should be suspended. The prosecution submit that a wholly suspended sentence is appropriate, that in my view is merciful but, I am prepared to take a risk and order the sentences which I have just imposed be fully suspended for a period of 3 years on conditions.
    7. FINAL RESULT
19. The final result being as follows:
    1. Count 1: Possession of an Arm without a License, 16 months’ imprisonment.
    2. Count 2: Possession of Ammunition without a License, 12 months’ imprisonment concurrent to Count 1
    100. Count 3: Possession of Utensils, 10 months’ imprisonment concurrent to Count 1
    4. Count 4: Possession of Illicit Drugs, 9 months imprisonment concurrent to Count 1.
20. I fully suspend the entirety of your sentence for a period of 3 years on the following conditions:
    1. You must not commit any offence punishable by imprisonment.
    2. You must complete 80 hours of community service at the direction of the Probation Office within 12 months.
    100. You are placed on probation for the period of your suspended sentence.
    4. You must complete a course on alcohol and drugs awareness under the supervision of the Salvation Army.
21. I further order that all drugs and utensils in these proceedings be destroyed pursuant to section 32 of the Illicit Drugs Control Act. The cash seized from the Defendant is to be forfeited to the Crown pursuant to section 33 of the same Act, and the arm and ammunitions are to be forfeited to Tonga Police pursuant to section 37 of the Arms and Ammunitions Act.

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

NEIAFU

28 March 2025