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

CR 8/2022

REX
-v-
ANDY HAYDEN FUKOFUKA

SENTENCING REMARKS

Before: 		Justice P. Tupou KC
Appearances: 		Ms. H. Aleamotua for the Prosecution
		   	Defendant in person
Date: 			18 November, 2022

The charge
1.	The Defendant is charged with one count of possession of arms without a licence, contrary to s 4(1), (2)(b) and 47 of the Arms and Ammunition Act and one count of possession of ammunition without a licence contrary to s 4(1), (2)(b) and 47 of the said Act.

2.	On 7 April, 2022 he pleaded not guilty to both charges and the matter was fixed for a two-day trial to commence on 27 September, 2022.  

3.	On 27 September, 2022 the defendant changed plea and pleaded guilty to both count. He was convicted and the matter was set down for sentencing.

4.	Directions were made by consent for the Crown to file submissions by 25 October, 2022, to which the defendant may file a response by 8 November, 2022 and sentencing was fixed for 15 November, 2022.

5.	Crown submissions was filed on 14 November, 2022 and served on the defendant when the matter was called for sentencing on 15 November, 2022. 

6.	The defendant requested time to respond and this sentencing had to be adjourned to for that purpose.

The offending
 
7.	On the morning of 4 November 2021 the Defendant was travelling from Fo’ui into town for his vaccination shot. He had asked his neighbor, for a lift in his vehicle. He had a black bag with him which he threw at the back of the said vehicle. 

8.	At a checkpoint at Sia’atoutai, Paea Koloamatangi Kautai a member of His Majesty’s Armed Forces stopped them. When they could not produce identification cards, they were pulled to the side and questioned about the presence of any illicit drugs in the vehicle. 

9.	At this point, the Defendant disclosed that a firearm and ammunition was at the back of the vehicle. It turned out that in the black bag he had thrown to the back of the vehicle was a .25 calibre pistol and a magazine containing 3 x .25 calibre ammunition.   

10.	The Defendant said that someone had given him the firearm and that another person will collect it from him. He was arrested for possession of an unlicenced firearm. 

11.	On 5 December, 2021, the Police Armourer confirmed that the said firearm and ammunition were real and in good condition for use. The Defendant did not hold a licence to possess the said firearm and ammunition. 

Crown’s submissions

12.	The Crown submitted the following as aggravating factors:

a)	this is a serious offence;

b)	the Defendant was in possession of an unlicensed firearm.

13.	The Crown submitted the following mitigating factors;

a)	 the Defendant’s guilty plea;

14.	The Crown referred to the following comparable sentences:

a)	R v Kohinoa [2008] TLR 9 –On a charge of possession of arms without a licence, the accused was sentenced to four months’ imprisonment and upon the charge of possession of ammunition without a licence, the accused was sentenced to two months’ imprisonment.

b)	R v Tu’iha’ateiho CR 116 of 2013- the defendant here was convicted for possession of an unlicensed .22 semi-automatic pistol. He was fined $2,500 to be paid within 2 months or in default 3 months’ imprisonment.

c)	R v Talia’uli [1997] TLR 7 – the court sentenced the defendant to 2 years’ imprisonment for possession of an unlicensed pistol and 6 months for possession of bullets, both fully suspended for 3 years.

d)	R v Liou [2010] TLR 181 & AC 21/2010 – the Defendant was sentenced to 12 months’ imprisonment fully suspended together with a fine of $3,000.

e)	R v Vakapuna [2018] TOSC 81 – the defendant was sentenced to 18 months’ imprisonment for possession of an unlicensed .22 rifle and 6 months’ imprisonment for possession of ammunition, fully suspended on conditions and 100 hours of community service. 

15.	The Crown proposed the following sentence formulation:

a)	A starting point of 12 months’ imprisonment with a reduction of 6 months in mitigation.

b)	No suspension as the defendant is not eligible under the principles in Mo’unga v R [1998] TLR 154 and that he has failed to take the opportunity to rehabilitate himself and has breached his suspension for CR 108/18. That case does not appear in the Crown’s list of previous convictions against the defendant and was not provided to the court. 

c)	Alternatively, the Crown proposed a fine of $1000 for count 1 and $100 for the second count in line with the ISS provided. 

Pre-Sentence Report

16.	The defendant is 36 years old and lives with his wife and daughter at Fo’ui. He was deported from Hawaii to Tonga in 2011 for illegal misdemeanor. He was married in 2012 and has a daughter. He told the Probation officer that having a child made him more responsible. 

17.	The report conveys a sad account, from the defendant’s view, of his life. When he was 12 years old, his grandfather went missing at sea and his father sold his fishing boat and moved the family to Hawaii for a better life. 

18.	The Defendant was eldest of 10 children and attended primary school here in Tonga. He completed high school in Hawaii and enrolled at a Military Institute School that offered training for the military. He said he was impatient and was soon drawn to gangs and dealing drugs. That enabled him to buy gifts for his siblings instead of watching them wishfully stare at others gifts on birthdays and Christmas.

19.	He described the move to Hawaii as a move from a perfect life in Tonga to one of struggling to make ends meet. No matter how hard his parents worked the struggle continued because there were so many of them. 

20.	As for the firearm, the Defendant told the Probation officer that a friend had given it to him for safe keeping and he was not aware that it was not licensed. He said he had no intention of using it illegally or to cause harm to anyone and that is why he was the first to tell the army officer about the firearm.  

21.	References from his wife, the Ward Bishop and statements of the Town Officer of Fo’ui were provided in relation to the good character of the defendant. He has previous unrelated convictions.

22.	The Defendant keeps his family by fishing, farming and contract work. His siblings in the United States assist from time to time. He is of good health.
24. 	The Probation officer recommended a partial suspension on conditions to include taking the life skill course with the Salvation Army.   

Accused’s Submissions
 
25.	I received a written letter from the accused on 17 November, 2022. He accepted that he had broken the law and understands he must be punished and and pleads for a sentence in line with previous similar cases.   

Starting point
26.	The maximum statutory penalty for possession of arms and ammunition without a licence is 5 years’ imprisonment each. 
27.	In the recent case of R v Tongamoa [2021] TOSC 51, LCJ Whitten QC set a starting point of 18 months for the possession of an unlicensed firearm and 6 months for possession of unlicenced ammunition. That was reduced by 30% for the defendant’s early guilty plea and lack of relevant previous conviction, resulting in a final sentence of 12 months’ imprisonment for the possession of an unlicenced firearm and 4 months for the unlicenced ammunition.
 
28.	I agree and bear in mind the concerns raised by Cato J in Talia’uli, ibid, that; 
“This is a serious offending. It is made more serious, in my view, by the fact that these are handguns. Such are not common in Tonga I am told and nor should they be. The people of this Kingdom do not want people walking round with guns in their pockets, guns that are able to be hidden on the person, lethal weapons.”

29.	The Crown has suggested a fine as an alternative sentence. The cases where this court had imposed a fine, such as R v Tu’iha’ateiho – CR 116 of 2013 where the defendant was fined $2,500; R v Tu’ilakepa – CR 173/14 – with a fine of $2,000 for each firearm and R v Latu – CR 118 of 2014 with a fine of $1,000 are easily distinguished from the present case. Those defendants, were first time offenders, of good character and there was a lack of evidence of any sinister criminal purpose relating to the said possession. 

30. 	In contrast, the defendant here, is not a first time offender and the two different accounts he gave for having possession of the pistol, i.e. that he held it for another person to collect and the second version, that he had it for safe keeping, confuses as opposed to clarifying the purpose for his possession. For those reasons, I do not find imposing a fine an appropriate sentence here.

31.	Consequently, having regard to the maximum statutory penalty, the seriousness of the offence, the comparable sentences referred to by the Crown above (ranging from 2 years imprisonment to 4 months imprisonment for the unlicensed firearm), the need to protect the public and the need for punishment and deterrence, I adopt a starting point of 18 months for count 1 - in line with Tongamoa and 6 months imprisonment for count 2.
  
32. 	For his guilty plea and lack of relevant convictions I deduct 30% of the starting points, resulting in a sentence of 12 months for count 1 and 4 months for count 2 which shall be served concurrent to the sentence in count 1.
Suspension
33.	The Pre-sentencing report suggested a partial suspension and the Crown opposed any suspension on the whole, on two grounds. One that the defendant is not eligible to any discount under the principles in Mo’unga v R [1998] TLR 154 at 157. Secondly, that the defendant had not taken the opportunity to rehabilitate himself in breaching the conditions of suspension under CR 108/18.  

34.	The Crown listed previous convictions against the defendant in its submissions. It did not include CR108/18. My research revealed a previous case against the defendant in 2018 - CR107/18 – for possession of a .22 semi-automatic rifle without a licence and interfering with the course of justice by throwing away to hide the said firearm. 

35.	On 13 November, 2018, Niu J dismissed those charges and acquitted the defendant. It followed that there was no sentence or conditions of suspension that the defendant breached. That submission was an error.     

36.	Returning to whether or not it is appropriate to suspend any part of this sentence. 

37.	Having considered the principles set out in Mo’unga, I accept the Crown’s position that it is not favourable to the defendant. 

38.	Keeping in mind the view in Kohinoa where Andrew J said: 

	“In offences involving firearms it is almost inevitable that a gaol sentence will follow.”
	
	and Tu’iha’ateiho, where Cato J observed that: 

“[14] … Parliament has set a clear directive to the Courts that serious consequences should follow a conviction for being in possession of an unlicensed firearm…”

39.	I have considered that the defendant informed the army officer about the firearm at first opportunity and was not discovered after a search; his guilty plea, albeit late, indicate owning responsibility of his offending; the lack of any relevant convictions and good character described by his wife, ward bishop and town officer. I further consider as a positive mitigating factor for the defendant, that for a period of 6 years from 2016 to July, 2022, the defendant lived a crime free life up until July and October, 2022 where he was charged and fined or sentenced but with full suspension of that sentence at the Magistrates Court.  

40.	Consequently, I propose to offer the defendant here an opportunity to curb what appears to be the beginning of committing offences and return to the crime free life he has shown he is capable of maintaining from 2016 to July this year.
 
41.	In support, I have reflected on Tongamoa, where LCJ Whitten QC opined;

“… the overarching consideration on this issue is whether suspension is likely to aid in the rehabilitation of the Defendant. If it is, his rehabilitation is, in turn, also likely to benefit the community.”  

as well as on R v Pousini [2017] TOSC 22, where Paulsen LCJ said:
“There may be a view that a fully suspended sentence is in some a ‘let off’ for an offender
who has got away without consequences for their offending. This is a crude perspective. It certainly can never be thought to be the case here where the fact of a conviction will have serious consequences for Miss Pousini regardless of the sentence imposed by the Court. Furthermore, fully suspended sentences are commonly imposed subject to conditions which in themselves constitute demanding sentences and act also as significant restrictions on offender’s liberty. It is also the case that if the conditions are not complied with the offender may be required to serve their prison sentence.”
42.	For the above reasons, I fully suspend the defendant’s sentence for a period of 2 years on conditions with an expectation that he will take this opportunity to fully rehabilitate himself and to make good on the references provided on his behalf by his wife, bishop and town officer.  
Result  

43.	The Defendant is convicted and sentenced to;

a)	Count 1 - 12 months’ imprisonment;

b)	Count 2 - 4 months’ imprisonment to be served concurrently with count 1.

44.	The sentence is fully suspended, for a period of 2 years on the following conditions, the Defendant is to: 
a)	 not commit any offence punishable by imprisonment; 

b)	 undertake a like skills course at the Salvation Army as directed by his probation officer. 
45.	Failure to comply with any of these conditions will result in the suspension being rescinded, in which case, the Defendant will be required to serve his sentence in prison.

46.	I order that the firearm and ammunition, subject of this proceeding, be forfeited to the Crown, pursuant to s. 37 of the Arms and Ammunition Act. 

P. Tupou KC
JUDGE

NUKU’ALOFA
18 November, 2022