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R v Nonu [2024] TOSC 113; CR 101 of 2024 (25 November 2024)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 101, CR 102 & 135 of 2024

BETWEEN:

REX

-Prosecution

AND:

[1]TAULANGA SIUPELI NONU

[2] MOLITONI MOIMOI

-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr A Fisi’iahi for the Crown Prosecution

Mr T Nonu in Person

Mr M Moimoi in Person

Date: 25 November 2024

THE CHARGES
Taulanga Siupeli Nonu

1. CR 101 of 2024: On 14 October 2024, before the trial was about to commence the Accused requested to be re-arraigned and pleaded guilty to the following:
   1. Count 1: Serious Housebreaking, contrary to section 173(1) and (5) of the Criminal Offences Act.
   2. Count 2: Theft, contrary to section 143 and 145(a) of the Criminal Offences Act.
   100. Count 3: Serious Arson, contrary to section 177(1) and (3) of the Criminal Offences Act.
        

Molitoni Moimoi

2. CR 102 of 2024: On 14 October 2024, the Accused was rearraigned and pleaded guilty to Count 1 and 2 and retained his not guilty plea for Count 3. The Accused is charged on the same indictment against Mr Nonu in Cr 101 of 2024.
3. Subsequently, the Crown withdrew Count 3 against the Accused.
4. CR 135 of 2024: On 27 August 2024, the Accused pleaded guilty to the following charge
   1. Count 1: Possession of Ammunition Without A license contrary to section 4(1) and (2)(b) of the Arms and Ammunition Act (6.22 magnum ammunition)
5. The Court approved the Crown’s request Mr Moimoi’s two separate matters to be combined for joint sentencing.
   

CROWN SUBMISSIONS

6. The Crown filed their sentencing submissions on 25 November 2024 to assist the Court.
7. Aggravating and mitigating factors were also submitted with the following caselaw:
   1. Rex v Fifita (CR 74 of 2018)
   2. Rex v Malafu (CR 133 of 2016)
   100. Rex v ‘Ealelei (CR 162 of 2018)
   4. Rex v Maile (CR 133 of 2019)
   5. R v Manu (CR 152 of 2018)
   6. State v Bulitavu - Sentence [2022] FJHC
   7. R v Tu’ifua (CR 266-267 of 2023)
   8. R v Afimeimounga [2024] TOSC 9
   9. R v Rodney Toki AC 19 of 2022
8. The Crown submit for following recommendations for sentence as follows:
   

CR 101 of 2024 Rex v Taulanga Siupeli Nonu

9. Count 3 of serious arson is the most serious offence making it the head offence with an appropriate starting point of 7 years.
10. Regarding his late guilty plea and being a first-time offender, 12 months is deducted leaving a balance of 6 years.
11. Count 1 should be cumulative to the head sentence with a total of 18 months.
12. Count 2 has an appropriate sentence of 2 years to be served concurrent to Count 3.
13. Total recommended sentence for the Accused is 7 ½ years imprisonment with the final 18 months suspended on conditions.
    

CR 102 & 135 of 2024 Rex v Molitoni Moimoi

14. For CR 102/24, the most serious offence is Count 1 being serious housebreaking. An appropriate starting point for this head count is 3 ½ years.
15. Regarding his late guilty plea and his previous convictions, 6 months is deducted leaving a balance of 3 years.
16. The appropriate sentence for Count 2 is 2 years imprisonment concurrent to Count 1.
17. For CR 135/24, a starting point of 12 months is recommended for Count 1 with 3 months deducted for the early guilty plea leaving a balance of 9 months.
18. Crown submit 6 months from CR 135/24 should be added cumulatively to CR 102/24 resulting in a total of 3 ½ years imprisonment with no suspension.
    

PRESENTENCE REPORT
CR 101 of 2024 Rex v Taulanga Siupeli Nonu

19. A presentence report was received from the Probation Office on 18 November 2024.
20. This report detailed the Accused’s personal history factors in relation to the offending and their recommendation on sentencing.
21. The Probation Officer recommends the Accused serve custodial sentence. It is further recommended for the Court to revoke the suspended sentences in CR 590/23 and CR 454/23
22. I take the contents of this report into account in considering the Accused’s sentence.
    

CR 102 & 135 of 2024 Rex v Molitoni Moimoi

23. A presentence report was received from the Probation Office on 18 November 2024.
24. This report detailed the Accused’s personal history factors in relation to the offending and their recommendation on sentencing and reference letter from Joe’s Stevedoring Limited.
25. The Probation Officer recommends the Accused serve a partly suspended sentence on the conditions that he not commit any offence punishable by imprisonment, live where directed, placed under probation for three period of the suspended sentence, report to the probation office within 48 hours of being released from prison and to complete a drug awareness course at the Salvation Army as directed by the Probation Office.
26. I take the contents of this report into account in considering the Accused’s sentence.
    

DSCUSSION

27. Taulanga Siupeli Nonu, you have pleaded guilty to serious housebreaking, theft and serious arson.
28. Molitoni Moimoi, you have pleaded guilty to serious housebreaking and theft, the Crown withdrew the count of serious arson against you.
29. These are serious offences, in your case Nonu, you destroyed property worth no less than $1m TOP and in your case Moimoi you have a very bad record of offending since 2020.
30. In both cases the offences were premeditated and although both of you pleaded guilty, you both only did so on the day of the trial and indeed after a jury had been sworn and the trial was about to commence.
31. Furthermore, in your case MoiMoi, these offences were committed whilst you were subject to a fully suspended sentence and additionally was committed whilst you were on bail.
32. There is very little it can be said in mitigation in the case of either of you and the time has now come for the full force of the law to take its course.
33. I have considered 9 examples of comparable sentences helpfully summarised by the prosecution which I have considered and take into account, and I say helpful guidelines, but each case must be decided on its own particular effects having regard to the three objectives of a sentencing, namely punishment, deterrence and rehabilitation.
34. I deal with each of you in turn
    

CR 101 of 2024 –Taulanga Siupeli Nonu

35. Nonu, you pleaded guilty to serious arson. This is always a very serious offence both because of the risk to human life and the financial consequences of the destruction of property which happened here.
36. I take a starting point in your case a term of 7 years imprisonment but since you are a first-time offender who pleaded, I reduce that sentence to 6 years.
37. Although the house breaking and theft was committed on the same occasion but nevertheless fall to be marked by a term of custody. Having regard to the principle of totality my sentence on each of those counts is two years concurrent to each, in which 12 months year of which is to be served consecutively to the sentence for arson.
38. I also take into account the following previous convictions, your suspended sentence in CR590/23 which imposed a 6-month sentence fully suspended on conditions. This was imposed on 23 February 2024 and was reported to be in breach by the Probation Office on 28 August 2024. I activate this term of suspension to be served concurrently to the head sentence in CR 101 of 2024.
39. You have a further previous offence, CR 454/23 in which you were fined $120 or in default to serve 2 weeks in prison. This 2-week imprisonment is to be served concurrent to the head sentence in CR 101 of 2024.
40. I note these previous convictions were not disclosed by the Prosecution and was discovered from the Pre-Sentence Report received from the Probation Office.
41. In terms of suspension, I order that that last 18 months of your imprisonment sentence is suspended on conditions. The upshot is the total sentence is 7 years, of which you will only serve a total of 5 ½ years in custody and the last 18 months suspended for 2 years on the following conditions:
    1. You must not commit any further offence punishable by imprisonment
    2. You must report to the Probation Office within 48 hours of your release from custody
    100. You must complete a life skills course under the direction of the probation office and the Salvation Army
         

CR 102 & 135 of 2024 – Molitoni Moimoi

42. I know, turn to you Moimoi you have pleaded guilty to serious housebreaking and theft. Again, this offence was premeditated, it was committed not only whilst you were subject to a suspended sentence but at a time when you were also on bail.
43. Taking those matters into account together with your deplorable history of previous offending despite your young age of 21, I consider it necessary to teach you a lesson and impose a sentence on Count 1 and 2 of 3 years imprisonment each, less 12 months for your early guilty plea to be served concurrently to each other.
44. I do not consider a suspension of any part of that sentence is appropriate accordingly that is that is the time you will serve in custody.
45. In addition, you have pleaded guilty to being in possession of ammunition without a license, namely six bullets.
46. It is in the public interest to impose a strict control on the possession of firearms and ammunition and the courts will always regard any breach as serious.
47. In your case bearing in mind that you committed this while on a suspended sentence, no reduction of culpabilities is appropriate, and I impose a further sentence of 12 months’ imprisonment to be served consecutively to the sentence I have just imposed.
48. In addition, the suspended sentence in which you are in breach, which was 2 months suspended for 2 years imposed in October 2023 must be activated and is to be served consecutively to the sentence passed in this case.
49. The upshot is you will serve a total of 3 years and 2 months in custody.
    

FINAL RESULT

CR 101 of 2024 –Taulanga Siupeli Nonu

50. Count 3 of serious arson is the head sentence in this case and I impose a sentence of 6 years imprisonment.
51. For Count 1 and 2 of serious housebreaking and theft respectively, I impose a total of 2 years imprisonment on each count to be served concurrently to Count 3, with 12 months to be served consecutively to Count 3.
52. The 6-month suspended sentence from CR 590/23 and the 2-week imprisonment period from CR 454/23 is activated to be served concurrently to the head sentence in CR 101/24.
53. In total, the Accused is sentenced to 7 years imprisonment with the last 18 months suspended on the following conditions:
    1. You must not commit any further offence punishable by imprisonment
    2. You must report to the Probation Office within 48 hours of your release from custody
    100. You must complete a life skills course under the direction of the Probation Office and the Salvation Army
54. For the avoidance of doubt, the Accused will serve 5 ½ years in custody and the remaining 18 months suspended on the above-mentioned conditions for CR 101/24. For completeness the sentences in CR 590/23 and CR 454/23 are activated and to be concurrent to CR 101/24.
55. This sentence is backdated to 14 October 2024, when the Accused was first remanded for this case.
    

CR 102 & 135 of 2024 – Rex v Molitoni Moimoi

56. For CR 102/2024 with Count 1 as the head sentence, I impose a sentence of 2 years imprisonment. A further sentence is 2 years is imposed for Count 2 to be served concurrently to Count 1.
57. For CR 135/2024, I impose a total of 12 months imprisonment to be served consecutively to the sentence in CR 102/2024
58. The Accused also has a suspended sentence of 2 months that was suspended in October 2023 for 2 years. This period is activated and to be served consecutively to the sentence in CR 102 & 135 of 2024.
59. In total, the Accused is sentenced to serve 3 years and 2 months of imprisonment in custody with no suspension.
60. This sentence is backdated to when the Accused was first remanded for this case.
    

NUKU’ALOFA

HON. MALCOLM BISHOP KC

LORD CHIEF JUSTICE

25 November 2024