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

CR 132 of 2021 & CR 66 of 2022 

BETWEEN    :        

REX
Prosecution

AND               :        

PONI ‘AHOHAKO
Defendant

SENTENCING REMARKS

Before:                    Justice P. Tupou KC
Appearances:          Ms H. Aleamotu’a for Prosecution 
                                Defendant in person
Date:                       6 December, 2022

The Charges

CR 132 of 2021
1.	On 15 December, 2021 the defendant was convicted after a trial, of one count of serious housebreaking, contrary to ss 173 (1) (b) and (5) of the Criminal Offences Act, and one count of causing serious bodily harm, contrary to ss 107 (1), (2) (c) and (4) of the said Act. 
CR 66 of 2022 
2.	On 30 June, 2022 the Defendant pleaded guilty and was convicted of one count of theft, contrary to ss 143 (a) and 145 (b) of the Criminal Offences Act.

The offending
CR 132 of 2021
3.	On 9 February, at around, 2:52pm, the complainant, Lord Dalgety of Sikotilani, 76, heard a noise outside his house and saw a person inside his Ha’ateiho property. He later identified that person as the defendant. The defendant without invitation burst through the front door, of the complainant’s house, forcing the door bolt to rip the metal latch on the door frame together with part of the wooden door frame, sending it several meters across the hallway.
 
4.	At the time the complainant had made his way towards the front door. Upon entering the house, the defendant punched, kicked and hit the complainant on the left side of his head with a china teapot he took off the shelf in the house. 

5.	As a result of the attack, the complainant fell to the floor and suffered injury and bleeding from his head.
CR 66 of 2022
6.	On 25 October 2021 at around 8:55am, Chin Fu Lin, 79 and Manager of Sunburst Investments Enterprises Company Limited, parked in front of the MBF Bank. He got out and stood in line with a bag containing $125,000.00 in cash and a Cheque valued at $1016.00 to deposit with the Bank. 

7.	Behind him also in line was the accused. About a meter further down the line, a police officer Mata’uvave stood in line and was observing the accused. The accused has noticed the Officer and covered his head with the hood of the garment he was wearing.

8.	When the bank opened and the complainant got to the front, the defendant grabbed the bag and struggled with the complainant to remove the bag from him. In the struggle, the complainant slipped and landed on the ground, losing control of his bag. 

9.	The defendant ran across the road towards Tungi Colonnade, with the complainant’s bag in hand. Police Officer Mata’uvave chased after the defendant to the back of Tungi Colonnade. The defendant tried to jump over the fence but was not able to before  Mata’uvave got there and took the bag from him.  

10.	The defendant tried to escape but had to give up when he was blocked by a Ministry of Health vehicle and passengers who ran after him. He was caught and taken to the central police station.  
Crowns’ Submissions
CR132/21
11.	The Crown submitted the following as aggravating factors: 

(a)	this is the defendant’s third conviction for serious housebreaking;

(b)	previous convictions in 2015 demonstrated willful damage and a history of violence; 

(c)	age of the complainant; 

(d)	loss of sense of security in his home for the complainant; and

(e)	lack of remorse. 

12.	 The Crown submitted there were no mitigating factors in this case. 

13.	The Crown referred to the following comparable sentences: 

(a)	Rex v Tevita Fifita CR 74 of 2018 – the defendant pled guilty for one count of serious housebreaking and one count of theft. For the serious housebreaking, a starting point of 3 years and 6 months imprisonment was adopted. After mitigation, the final sentence was 2 years and 6 months imprisonment with the final 12 months suspended on conditions. The Defendant was sentenced to two years imprisonment for the theft
to be served concurrently with his sentence on serious housebreaking. 

(b)	Rex v Penisiliti Malafu CR 133 of 2016 – The Defendant was convicted of serious house breaking and theft. A starting point of three years and six months imprisonment was imposed. The Court sentenced the Defendant to 3 years and 6 months, final 6 months suspended for the serious housebreaking charge. For the theft charge, the Defendant was sentenced to two years’ imprisonment to be served concurrently with Count 1. 

(c)	R v Maikolo ‘Ealelei CR 162 of 2018 – The Defendant pled guilty to serious housebreaking and theft. A starting point of four years was set. The Defendant was sentenced to 4 years’ imprisonment for the serious housebreaking and 2 years and 6 months for the theft charge.

(d)	Rex v Kelikupa Maile CR 133 of 2019 – The Defendant was convicted of serious housebreaking and theft, whereby, a starting point of three years and nine months were imposed. The Defendant was sentenced to 3 years and 3 months imprisonment, final 12 months suspended. For the theft charge, 2 years and 6 months imprisonment to be served concurrently with Count 1. 

(e)	R v Fuatapu Puamau CR 05 of 2018 (Unreported, 18 August 2018) – The Defendant was sentenced for causing serious bodily harm - to 21 months imprisonment with the final 9 months suspended on conditions. He pled guilty and had no previous convictions.

(f)	R v Ma’afu Makasini CR 2 of 2016 (Unreported, 2 September 2016) – The Defendant was charged with one count of causing serious bodily harm. He was sentenced to 18 months imprisonment and fully suspended for 2 years. Probation for 18 months and to undergo alcohol courses and anger management courses under the direction of the Salvation Army. 

(g)	R v Sione Tui Sima CR 83 of 2016 (Unreported, 16 December 2016) – Cato J sentenced the Defendant to complete 40 hours’ community service. The Accused was further ordered to pay the victim $200.00 compensation in lieu of 1 month imprisonment. 

(h)	R v Kepueli Taufa CR 72 of 2015 (Unreported, 7 August 2015) – The Defendant pled guilty to one count of serious bodily harm, and was sentenced to a fine of $500.00 to be paid to the victim as compensation. It was ordered that the money was to be paid to the Court within 3 months in lieu of 1 month imprisonment. 

14.	The Crown submits the following sentence formulation;
Count 1 – is the headcount and warrants a starting point of 5 years’ imprisonment;
Count 2 -18 months’ imprisonment to be served concurrently to count 1.

15.	The defendant is not entitled to any mitigation or suspension. 
CR 66 of 2022 
Crown’s submissions
16.	The Crown submitted the following as aggravating features:

a)	this is a serious offence; 
b)	defendant has previous similar convictions; 
c)	commission of this offence occurred while on bail for CR132/21;
d)	amount of cash that was stolen (fortunately the cash was recovered); and 
e)	trauma suffered by the complainant. 

17.	The defendant’s guilty is the sole mitigating factor in his favour.
  
18.	The Defendant has previous similar convictions and were listed as;

(a)	CR 56, 57/10 – the defendant was convicted for willful damage to things not otherwise provided for and theft for which he was sentenced respectively to 6 months’ imprisonment fully suspended for 2 years and 3 months’ imprisonment fully suspended for 1 year on conditions and 15 lashes. The sentences were activated on 18 February 2011 for breaching the conditions of the suspension.  

(b)	CR75, 76/11 – the defendant was convicted for housebreaking and theft. He was sentenced 3 months’ imprisonment and 2 months’ imprisonment respectively;

(c)	CR 261/12 – the defendant was convicted for housebreaking and was sentenced to 6 months’ imprisonment; and 

(d)	CR 40/15 – the defendant was convicted for armed Robbery and was sentenced to 4 years’ imprisonment with the final 12 months, suspended. 

19.	The Crown have referred to a number of comparable sentences imposed for theft;
a)	Rex v Tevita Fifita CR 74/2018 – the defendant broke into a store and stole $15,000. He was sentenced to 2 years imprisonment for the theft. 

b)	Rex v Penisiliti Malafu CR 133/2016 – the defendant was convicted for housebreaking and theft of tongan goods to the value of $15,000. For the theft the defendant was sentenced to 2 years imprisonment.

c)	Rex Maikolo ‘Ealelei CR 162/2018 – the defendant was convicted for housebreaking and theft of tongan goods valued at $34,269. He was sentenced to 2 years and 6 months imprisonment for the theft. 
 
d)	Rex v Kelikupa Maile CR 133/2019 – the defendant was convicted for housebreaking and theft of tongan mats and other goods valued at $14,900. He was sentenced to 2 years and 6 months imprisonment. 

20.	The Crown proposes a starting point of 3 ½  – 4 years’ imprisonment uplifted by 12 months to be reduced by 12 months for his guilty plea without any period of suspension. Further, the Crown submits that this sentence is made cumulative to the sentence in CR 132/21. 

Presentence report
21.	I received separate reports on the defendant for each indictment. There appear to be some inconsistency in content, including the town officer claiming the defendant was deported. I received further information from the Probation office that contrary to the reports, the Police Intelligence unit had confirmed the defendant was never deported from any country. I therefore, rely on the more recent report filed on 2 November, 2022 for CR 66/22 as the more accurate report.
  
22.	The Defendant is the only child from his parents’ marriage. He attended primary school and highs school in New Zealand ending in year 8. He is 26 years old, healthy and unemployed.

23.	When he was young, his parents migrated to New Zealand. Shortly thereafter they separated and his father returned to Tonga. His mother remarried and had a second child. 

24.	From a young age, he and his step-brother were drawn to the criminal gangs in their neighbourhood and were eventually taken and placed in residential car by the Child, Youth and Family agency in New Zealand. His cousin managed to get him released and in 2009 his mother sent him to Tonga to his father, hoping  it will trigger positive change in him. He was 14 at the time. 

25.	Unfortunately, when he arrived in Tonga, he was not interested in going to school and did not get much support from his father. He was found growing cannabis at home and because he was physically punished, he moved out to live with friends. 

26.	He entered into a relationship with a Ms. Eunice Bloomfield and fathered a child with her. But that relationship ended when he was sent to prison in 2015. 

27.	In 2018, his mother returned to Tonga to take him back to New Zealand. His  visa application was denied and she chose to stay on with the defendant. She was divorced was living with a man at her friends’ home at Veitongo. In the meantime, the defendant had moved in with a Ms. Darby Bell at Kolonga prior to his arrest in 2021. 
28.	His mother became ill and died while the defendant was in custody for his offending in CR 132. He said his mother’s death devastated him and has been a factor in his criminal behavior. 

29.	In CR 132, the defendant maintains his innocence. In CR 66 he admits the offending and seeks a lenient sentence. The Probation officer opined that the accused expressed regret and remorse for the recent offending in CR 66 and appear to be “getting tired of swirling in the cycle of recidivism”. She suggested imprisonment to be the appropriate sentence with rehabilitation programs that may nurture positive behavior and recommends a partly suspended sentence for CR 66.
Starting Point
CR 132/21 
30.	The maximum statutory penalty for count 1 is 10 years’ imprisonment and for causing serious bodily harm is 5 years’ imprisonment. 

31.	In R v ‘Ealelei [2019], LCJ Paulsen opined that serious housebreaking 

“..is a very serious problem in Tonga to which there must be strong response,” especially when “..it is a distressingly common offence committed in the main by young men.”

32.	In the recent case of R v ‘Akau [2021], LCJ Whitten QC, set the starting point of  4 ½ years’ imprisonment for serious housebreaking. The defendant in that case was in lawful custody serving a sentence that included a 2-year sentence for a previous serious housebreaking. 

33.	Having regard to the statutory penalty, the comparable sentences and principles above, the previous housebreaking offences, the need for personal deterrence and punishment, I set the starting point at 3 years and 6 months for count 1. 

34.	For Count 2, I bear in mind the principle in Hu’ahulu v Police [1994] TLR 93, that: 

“… anyone who commits an offence of violence against another person runs a risk of immediate imprisonment. That will apply even to a first-time offender. The likelihood of
going to prison becomes a virtual certainty…when a weapon is used.”

35.	In R v Pulu (unreported, CR 176 of 2020, TOSC)- the object used to inflict injury was a hoe. There, the hoe was considered not as lethal as a machete, albeit still dangerous. A starting point of 3 years was set in that case. A teapot would, in my view will be in mid to low-range level of dangerous.
36.	However, the use of the teapot as well as punching and kicking the 76-year old complainant, warrant a starting point of 2 years and 6 months’ imprisonment. 
CR 66/22
37.	The maximum penalty of theft for the value of things stolen exceeding $10,000.00 is 7 years’ imprisonment.

38.	In terms of the range in the amounts involved, the comparable cases I have been referred to do not assist and I have gone on to consider R v Selupe [2021] TOSC 47 which involved obtaining funds by false pretenses of $50,000 attracting a starting point of 24 months and R v Cocker – CR 3/13, where the defendant converted an amount of just under $100,000 attracting a starting point of 4 years and 6 months.  

39.	Having regard to the seriousness of the offence here, the amount involved, and in light of Selupe and Cocker and the principles of deterrence and punishment, I find a starting point of 4 years appropriate. 
Mitigation
CR 132/21 
40.	There are no mitigating factors in favour of the defendant for this offending and the final sentence is;

Count 1 (headcount)  – serious housebreaking – 3 years and 6 months imprisonment;
Count 2 – causing serious bodily harm – 2 years and 6 months’ imprisonment to be served concurrently to count 1.
CR 66/22 
41.	Relying on R v Ika [2020] TOSC 89, where the court discounted the defendant’s sentence by 50% and referred to Mo’ui Loketi & ors -0 CR 6, 8, 9,10/2013 (a case where full restitution was made of the $41,000 embezzled funds) where the Court of Appeal said;

“[26] It is important that there is a meaningful allowance when compensation of losses is made. It demonstrates a desire to atone and of course lessens the impact of the crime on the victim. If adequate allowance is not routinely made, there is also the concern that the incentive to make reparation will be reduced. 

[27] In our view a discount of little over 25% for good character and for making reparation is sufficient thought the Judge could not have been criticized if he had allowed more.”
40.	In light of the above principles I deduct 12 months from the starting point for defendant’s guilty plea and expression of remorse, resulting in a balance sentence of 3 years. For the full recovery of the defendant’s money, I deduct another 6 months, resulting in a final sentence of 2 years and 6 months’ imprisonment. 
Concurrent of Cumulative Sentences
42.	I now turn to consider whether the sentence should be served concurrently or cumulatively. 

43.	The relevant test was set out in R v ‘Asa [2020] TOSC 72 and summarized by LCJ Whitten QC in R v Selupe [2021] TOSC 47;

“first, whether the offences were so closely connected that they should be regarded as part of the one course of criminal activity; and secondly, whether in any event, the totality principle requires the sentences to be made, wholly or partially, concurrent.”

44.	The Crown submits that the sentences in CR 66 should be made wholly cumulative to CR132, which make a total term of 6 years’ imprisonment.  

45.	I accept the two lots of offending here are separate and constitute quite different and separate criminal activities. 

46.	However, I accept that full cumulation of all the sentences to be served would be “crushing” for a 26-year old defendant in the present circumstances. I consider his guilty plea in CR66 to be an indication he is taking responsibility for his actions and a positive change for him that should be encouraged.  Therefore, I consider it appropriate to order that only part of the sentence in CR 66 be added to the head sentence in CR 132 as detailed further below. 
Suspension
47.	In applying the principles in Mo’unga [1998] TLR 154 at 157 the one element in his favour is his age, otherwise;

(a)	he has a number of previous similar and other convictions;
(b)	he had been afforded an opportunity in the Magistrates Court previously with a suspended sentence which he breached showing disregard for the law; and
(c)	the present offences were serious and premeditated. 	
48.	For those reasons, I decline to suspend any part of the defendant’s sentences here. 
Result  
49.	In CR 132 of 2021, the Defendant is convicted of: 

(a)	Serious Housebreaking (head count), and sentenced to 3 years’ and 6 months imprisonment; and 

(b)	Causing Serious Bodily Harm, and sentenced to 2 years and 6 months imprisonment, to be served concurrently with (a). 

50.	In CR 66 of 2022, the Defendant is convicted of theft, and sentenced to 2 years and 6 months imprisonment.  

51.	To give effect to the totality principle, 6 months of the sentence in CR 66 is to be added to the head sentence in CR 132 making a total head sentence of 4 years imprisonment commencing from the time he has been in remand for these offences.

52.	The remaining 2 years in CR 66 is to be served concurrently with the sentence in CR 132.

P. Tupou KC
J U D G E

NUKU’ALOFA			
6 December, 2022