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R v Mataele [2025] TOSC 93; CR 121 of 2025 (11 November 2025)

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

CR 121 of 2025

BETWEEN:
REX
- Prosecution

AND:
SAVE MATAELE
- Accused

SENTENCE AND SENTENCING REMARKS

BEFORE:
HON. JUSTICE PAUL GARLICK KC

Appearances:
Mr. ‘A Fisi’iahi for the Crown Prosecution
Ms. ‘A Kafoa for the Defendant appearing via AVL

Date:
11 November 2025

The charges

1. The defendant was indicted with the following offences:

count 1: Unlawful importation of prohibited goods, contrary to section 95(1) and (4) of the Customs and Excise Management Act. (400 .22 magnum ammunition)

count 2: Unlawful importation of prohibited goods, contrary to section 95(1) and (4) of the Customs and Excise Management Act. (150.22 Hornady Magnum rifle ammunition)

2. On 27 August 2025, the defendant pleaded guilty to both charges.
   
3. The defendant, who is 46 years of age, has no previous convictions.
   

The offending conduct

4. On 14 March 2025, the defendant went to the premises of SF Enterprise Langi Shipping to obtain the release of a crate that had been imported by him into the Kingdom from the United States of America. The customs broker who was dealing with the crate asked him if there were any prohibited or restricted goods in the crate to be declared. The defendant answered “no”, which was a lie.
   
5. The crate was scanned, and the ammunition was found in the crate. A customs officer asked the defendant if he had declared the ammunition, and he replied that he had declared the ammunition to the customs to the customs broker. That was the second lie that the defendant told.
   
6. The defendant then told the customs officer that he had a licence for the importation of the ammunition. That was the third lie that the defendant told. He then produced an import licence for ammunition, which had been granted to Lord Nuku in 2023. It must have been obvious to the defendant that the licence did not give him permission to import the ammunition which is the subject of this case. Again, the defendant was attempting to deceive the customs officer.

Penalty

7. The penalty for Unlawful importation of prohibited goods is provided in section 95 (1) and (4) of the Customs Exercise Management Act. The maximum penalty is a fine not exceeding $100,000 or a term of imprisonment not exceeding 10 years, or both.
   

Submissions on behalf of the Crown concerning the appropriate sentences

Mitigating and aggravating features

8. The Crown submits that the aggravating and mitigating features in this case are as follows:

Aggravating features

(1) The seriousness of the offence.
(2) The Accused imported a large number of ammunition (total of 550) without an import licence.
(3) The Accused did not declare the ammunition.
(4) The Accused did not co-operate with the Police.
(5) Prevalence of firearms and ammunition importation related offending in Tonga.
(6) He is not young.

Mitigating features

(1) The Accused pleaded guilty at the earliest opportunity.
(2) He is a first-time offender.

The submissions on behalf of the defendant in mitigation of sentence

9. The Defence submit that many of the aggravating factors that the Crown points to are no more than the elements of the offence. I agree with that submission. However, I am unable to agree with the submission made by the defence that this is a case in which the defendant should be discharged without conviction, under the provisions of section 204 of the Criminal Offences Act. This was a premeditated offence, and the defendant knew that he was committing a crime when he brought the ammunition into the Kingdom without a licence. His lies to the customs broker and the customs officer demonstrate his complete disregard for the law. Moreover, it is clear from the pre-sentence report that the defendant shows no remorse for his offending behaviour; rather, he believes that it was acceptable to place the ammunition into the crate and to bring them into the Kingdom, knowing that he did not have the necessary import licence. He took a risk, but he was caught. He tried to lie his way out of the situation when he was caught, but now he must face the consequences of his offence.
   
10. In my view, the submission made by the defence that this offence falls at the lowest end of the scale of culpability is completely untenable. It was a deliberate act by the defendant to place the ammunition in the crate and to fail to declare the prohibited goods. Moreover, I do not accept that the consequences of the conviction amount to mitigating factors. The fact that the defendant may find it difficult to travel abroad for his work if he has a conviction is not something that I am prepared to accept as a mitigating factor. The defendant is a highly intelligent man, and he must have known the consequences of being convicted for an offence such as this.
    

Discussion in relation to sentencing guidelines for offences of unlawful importation of firearms and ammunition

11. I would observe that it is a matter of some concern that the sentences in the Kingdom for offences of unlawful importation of firearms and ammunition are completely out of line with other Commonwealth jurisdictions. It may be that the time has come for the Supreme Court and the Court of Appeal to review the sentencing policy for such offences. These offences have become much more of a threat to society in the Kingdom, with the increase in the number of offences involving drugs and the use of firearms. In my view, the starting point for such offences should be a sentence of imprisonment and not a fine. However, I accept that, for the present time at least, I should have regard to the decided cases dealing with sentences for these offences.
    

The Crown’s submissions regarding sentencing in comparable cases

12. In section V of its submissions, the Crown has set out a selection of decided cases to assist the court in determining the appropriate sentence in this case. I have considered those cases carefully. However, no cases can truly be said to be “comparable”, and it is for the court to determine the appropriate sentence in the particular case that it is dealing with, having regard to all the circumstances of the case.
    
13. The Crown submits that this offence can be dealt with by way of a financial penalty, and it refers to the following cases: Rex v Liutai [2023] TOSC17; Halatu’u Palei (CR 22/2020); ‘Isitolo Taufa (CR 143/2020); Feinga ki he Lotu Fanguna (CR 229/2020). Whilst I have already expressed my view that, in offences such as in the instant case, the court should be considering a custodial sentence as a starting point, I accept that a custodial sentence is not necessary or appropriate in this case. However, the culpability of the defendant’s conduct in this case requires the court to impose a substantial financial penalty.
    

Concurrent or consecutive penalties

14. Both counts in the indictment relate to one incident of unlawful importation. Therefore, the offences were so closely connected that they should be regarded as part of one course of criminal conduct. However, it is not possible to impose concurrent financial penalties. Therefore, I intend to impose a substantial fine on count 1 (which I shall treat as the head offence) and a lesser fine on count 2, so that the total fine will properly reflect the criminality of the defendant.
    

The pre-sentence report

15. As I have already mentioned, the pre-sentence report is most instructive in this case, and it confirms that the defendant has shown no remorse for his offending; indeed, he has brazenly stated that he feels no guilt arising from his criminal conduct. The pre-sentence report recommends that the appropriate sentence for these offences is a suspended sentence of imprisonment. I agree with that assessment, and had I not felt bound to follow the previous decisions of this court in relation to similar cases, I would have imposed a suspended sentence of imprisonment on the defendant.
    

Consideration of the appropriate sentence upon the defendant

16. Having regard to the submissions made on behalf of the Crown and the defence, I have determined that the following sentences are the appropriate and proportionate sentences in this case.
    

(i) On count 1, the starting point is a fine of $3,000 TOP, which will be reduced to a fine of $2,000 TOP to reflect the defendant’s plea of guilty.

(ii) On count 2, a fine of $750 TOP, which will be reduced to a fine of $500 TOP, to reflect the defendant’s plea of guilty.

Final sentence

17. The sentences that I impose upon the defendant are as follows:

(i) On count 1, a fine of $2,000 TOP;

(ii) On count 2, a fine of $500 TOP.

(iii) The above-mentioned fines must be paid within 3 months, and I impose a sentence of 6 months’ imprisonment in default of payment.

Ancillary order

18. Under the provisions of section 108 of the Customs and Excise Management Act 2007, the Chief Commissioner of Customs has the power to order that the ammunition which is the subject of this case shall be liable to forfeiture will be forfeited. Therefore, it is not necessary to make any such order.

This is the sentence of the Court

NUKU’ALOFA

HON. JUSTICE PAUL GARLICK KC
JUDGE

11 November 2025