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Rex v Palu - Sentence [2025] TOSC 41; CR 31 of 2025 (8 May 2025)

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

CR 31 of 2025

BETWEEN:
REX
-Prosecution

AND:
TU’IPULOTU PALU
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr K Tamo’ua for the Crown Prosecution
Ms A Kafoa for the Defendant

Date: 8 May 2025

1. THE CHARGES & BACKGROUND

1. On 26 March 2025, you pleaded guilty to the following charges;
   1. Count 1: Discharging Firearm With Intent To Intimidate, contrary to section 109 of the Criminal Offences Act.
   2. Count 2: Discharge A Firearm Within the Boundaries of a Town Without the Town Officer’s Permission, contrary to section 3(o) of the Order in Public Places Act.
2. The fact may be shortly stated that at 8 pm on 18 September 2024, you were asleep at home and disturbed by the noise of youths causing a nuisance near the adjoining Chinese store. It is said and I accept that this is not the first time that you had been disturbed in this way.
3. You reacted by coming out of your premises holding a gun. You were drunk and you pointed the gun towards the group and shouted that you would shoot them and go to prison with the gun.
4. Now, naturally some of the group fled but you chased them and fired your gun. The matter was reported to the police they came to the scene and found that you were intoxicated, and a 12-gauge shotgun was on the chair next to the entrance of your house.
5. The gun had been discharged because the barrel showed that one cartridge had been spent.
   2. CROWN SENTENCING SUBMISSIONS
6. On 7 May 2025, sentencing submissions were filed from the Crown to assist the Court.
7. Aggravating and mitigating features were submitted alongside the following caselaw in support:
   1. Rex v Koka CR 55/2021
   2. Rex v Kamoto CR 16/2022
   100. Rex v Holani CR 52/2022
   4. Rex v Ofa CR 141/2020
8. In your case, the Crown recommended the following sentence:
   1. Count 1: 26 months’ imprisonment with the last 14 months suspended for 2 years on conditions.
   2. Count 2: 2 months imprisonment, concurrent to Count 1.

100. PRESENTENCE REPORT

9. On 7 May 2025, a report from the Probation Office was filed where I am told about your family, upbringing, personal history and your version of the offending.
10. You had initially migrated to New Zealand however you were subsequently deported back in 2005. You got married a few years later and had 5 children with your wife. You have since then separated and you currently have sole custody of your youngest child.
11. The report states you have truly remorseful for the offending, which I accept and that at the time, you were intoxicated having had about 3 to 4 beers.
12. The probation report highlights the well-being of the child given that you are his sole caregiver.
    4. DISCUSSION
13. The possession of a firearm in Tonga the subject to strict control, I am surprised therefore that although you had been convicted in 2020 of the unlawful possession of a ammunition and a firearm you are permitted apparently to obtain or retain your current license and that of course carries with it strong responsibilities.
14. I have considered the sentencing submissions helpfully provided by the prosecution but do not accept the suggestion that the offending was unprovoked because I have accepted that what you did arose because of the behaviour of the youths outside the Chinese store, however, that in no way excuses what you did.
15. You were and I accept intoxicated at the time and I am satisfied that had you been sober you it is unlikely that you would have behaved in this way however I also accept that the firing of the gun was indiscriminate and that could have caused serious if not lethal injury.
16. Added to that, you have a previous conviction 5 years ago of being in possession of an unlicensed firearm and ammunition, on the other hand you pleaded guilty.
17. I accept that you are sincerely remorseful. There are helpful supporting letters which suggest that although not a particularly prominent member of the local church community you have played your part in the work of the church and have made contributions to other members from your plantation.
18. What you did must inevitably attract a custodial sentence and I have considered the comparable sentence helpfully submitted by the prosecution.
19. However, each case as I have repeatedly stated must be determined on its own facts having regard to the guidance of the comparable sentences provided to the court.
20. I accept that the starting point in your case is one of 2 years imprisonment in Count 1, and 3 months imprisonment in Count 2.
21. Because of your guilty plea there must be a discount of 12 months making a term of 12 months in Count 1 and a deduction of 1 month in Count 2.
    5. SUSPENSION
22. I have very great consideration to the question of suspending this sentence. Following the Mo’unga principles, you are not young, there were some provocation but more importantly you have strong domestic responsibilities because you are the sole carer for your son aged 13. I accept that if you are sent to prison the care which you are now giving your son would not be available.
23. I am informed and I accept that should you be imprisoned, he is to be taken to Australia to stay with your sister all of which may prove difficult if not impossible.
24. Your son is now at a crucial stage of his education, and I am reluctant to disrupt his life chances as a result of what you albeit did.
25. It is all too often the case that the families of offenders suffer as much if not more than the offenders, and the Courts must steal themselves to impose sentences which causes suffering to innocent third parties.
26. Here, the third-party is a young person in need of an adult to care for him and with some reluctance I have decided that it is just about possible in your case to suspend the sentence which I have to impose but that is upon conditions it will be for a term of 2 years.
    6. FINAL RESULT
27. For Count 1, I impose a sentence of 12 months’ imprisonment, fully suspended for 2 years on the following conditions;
    1. You must not commit any offence punishable by imprisonment
    2. You must be placed on probation and reside where directed by the Probation Office
    100. You must complete 80 hours of community service within 12 months
    4. You must undertake a course of life skills and anger management, including alcohol dependency under the direction of the Probation Office
28. For Count 2, I impose a sentence of 2 months imprisonment concurrent to Count 1.
29. The sentence of the Court is 12 months suspended for 2 years under those conditions.
30. The 12-gauge shotgun in these proceedings is to be forfeited to Tonga Police pursuant to section 37 of the Arms and Ammunitions Act.

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
NUKU’ALOFA

8 May 2025