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R v Vete [2004] TongaLawRp 46; [2004] Tonga LR 273 (8 September 2004)

IN THE SUPREME COURT OF TONGA

R

v

Vete anor

Supreme Court, Nuku'alofa
McElrea J
CR 112-3/2001

16-19 August 2004; 8 September 2004

Sentencing – assault with to intent to rob, and possession of arms without a licence– factors to take into account

The accused Vete was found guilty of assault with to intent to rob, and possession of arms without a licence. The accused Latu faced the same two charges and was found guilty on the first charge only. The maximum sentence on the first charge was 10 years imprisonment and on the second charge five years. The charges arose out of the attempted robbery of a Chinese man on 9 March 2001.

For the facts of this judgment, see R v Vete [2004] Tonga LR 263.

Held:

1. The Court considered that a term of imprisonment must be imposed and partly served by both defendants in order to meet the various objectives of sentencing in such serious cases, particularly those of deterrence, denunciation and protection of the community. The rehabilitative aspect that was important for young offenders could be achieved, by suspending part of the sentence and imposing conditions of suspension.

2. The Court imposed a sentence of four years' imprisonment [on each count] in respect of Vete. After he has served two years of that sentence the balance would be suspended for two years. In respect of Latu a sentence of two years' imprisonment was imposed cumulative upon or additional to the sentence he was currently serving. He was to serve one year of that and the balance was then suspended for one year.

3. The conditions of suspension were: for the period of their suspension they were to be under the supervision of a probation officer; they were to live and work where directed by the probation officer; they were to attend any programme recommended by their probation officer; and they were to undertake the Salvation Army programme for drug and alcohol abuse, under the direction of their probation officer.

Cases considered:

Fifita v R [2000] Tonga LR 289 (CA)

Mo'unga v R [1998] Tonga LR 154 (CA)

R v Moala (12 June 2001, Ward CJ)

Counsel for prosecution: Mr Kefu
Counsel for first accused: Mr Niu
Second accused, Latu, appeared in person

Sentencing remarks

The charges

The accused Halalolo Vete and Pita Latu are to be sentenced today on charges arising out of the attempted robbery of a Chinese man on 9 March 2001. At trial by Judge alone before me, the accused Vete was found Guilty of both charges which then remained against him; they were assault with intent to rob, and possession of arms without a licence. The accused Latu faced the same two charges and was found guilty on the first charge only. The maximum sentence on the first charge is 10 years imprisonment and on the second charge five years.

The facts

The facts of the matter have been covered in detail in my decision given on 19 August 2004, and that decision should be read for the fuller details, but in brief Vete and another offender now (deceased) named Paseka discussed the possible use of a .22 rifle which was at Vete's place, for the purpose of robbery. I will assume that Paseka came up with the idea, but the, important point is that Vete provided the rifle, which apparently belonged to his brother. It was not licenced. Vete went and got the rifle from the house and put it in the boot of the car. They then picked up the accused Latu, and there were two other young men not involved in these crimes also in the car.

When they saw the complainant Mr Tsay, Paseka told these two accused get out of the car and follow him. Paseka then got out himself with the rifle and went over to the complainant and demanded money while pointing the rifle at his head. It was obvious to both accused at that point, if not before then, that the purpose of the exercise was to use the rifle to try and obtain money from this man.

When no money was forthcoming, the two accused held the complainant by the arms while Paseka punched him at the face. The group then tried to get Mr Tsay into their car and take him away but he managed to struggle free and run off. The firearm was certainly loaded because Paseka used it to shoot at a street light shortly afterwards.

The probation reports

I have received two very helpful probation reports and I start by referring to the report for Vete. It shows that he works in his father's family business and receives regular money from that business. He had some of his education in New Zealand and Australia where he apparently stayed with family on first his mother's and later his father's side. He has good health and used to go out regularly with friends but has now cut himself off from his peers, on his parents' advice. His father says that his son's involvement in this matter has really changed his (ie the father's) attitude, and that his son seems to be moving forward well. He has been attending a Salvation Army course for drug and alcohol awareness, and it remorseful about this event. The probation officer recommends a suspended sentence on conditions.

The probation report for Latu shows that, according to his mother he is a very quiet person but was easily led by his friends who would come and call. His father's drinking habits had been a problem in their home and the accused had been involved in other offending. He is currently serving a sentence of four years six months imprisonment and is due for release next month.

Latu told the probation officer that he was surprised to be brought to court without a warrant and to have no chance to enter a plea. However the record shows that he was asked to plead on 20 July 2001 and that he had entered a plea of Not Guilty. Both accused pleaded Not Guilty at that stage, elected trial by Judge alone and were granted bail. A large part of the delay in this matter getting to trial was due to various unsuccessful pretrial applications by Vete's previous lawyer, Mr Nelson Tupou. However I do not hold that against Vele.

Mr Niu's submisslons

Mr Niu has made helpful submissions on behalf of Vete. He emphasized that it was a very amateurish attempt and was bungled. He suggested Vete may have been drunk or easily led by others, perhaps because of a lack of intellectual brilliance. He pointed out that Paseka was the leader of event and I accept that but I say that Vete was his First Lieutenant. He said that Vete had had a troubled family background due to the separation of his parents when he was very young, and his later being sent to New Zealand and Australia for his education.

Mr Niu did not play down the seriousness of the crime or the need for deterrence for this sort of offending. He submitted that sending Vete to prison would merely serve to harden him up and teach him how to commit crimes more successfully. That unfortunately may well be true both here and in other countries, but where the law calls for severe punishment the Courts must nevertheless be prepared to imprison offenders.

Mr Niu submitted that this was a proper case for a suspended sentence of imprisonment, for four reasons. First, Vete has no previous conviction. Secondly, he is young person, being now 22 but then only 19 years of age. Thirdly, he played a minor part in the incident. And fourthly he has stayed out of trouble in the intervening three years.

I accept that all four points are relevant, although I do not regard his part in the incident as minor. By providing Paseka with the rifle he played a major part.

The accused Latu's plea in mitigation

Mr Latu has not appeared with counsel but has spoken for himself. He says that this occurred when he was very young and immature. He says he has matured in prison and realizes you get nothing out of it. He asks to be able to return to his family where he is the eldest son and there is no bread winner. He says that he would want to be involved with the group mentioned to him by the probation officer, which I think is the Ironman Ministry, a church based group.

Legal authorities

The Court of Appeal of Tonga has given guidance to the Courts in a leading case Fifita v R [2000] Tonga LR 289 (CA). That case provides a helpful comparison with the facts of this case, and I will return to it for that purpose shortly. On page 291 the Court of Appeal mentions the purpose of a sentence as being:

"... to punish so far as is just and fitting in the circumstances; the deterrence of criminal behaviour by the offender and others; the rehabilitation of the offender to fulfil a useful role in society; the vindication of society's standards; and the protection of law abiding members of the community."

The Court of Appeal then went on to add that rehabilitation is of particular importance in the case of a young man such as that offender, who was aged 20. (See also Mo'unga v R [1998] Tonga LR 154 at 157.)

I accept of course the guidance of the Court of Appeal in that summary of the position, though I observe that unfortunately the rehabilitation of the offender may well work in the opposite direction to the other listed purposes of sentencing.

I turn now to mention the facts of that case briefly, so that a comparison can be made. In that case the Court of Appeal upheld a sentence of four years' imprisonment imposed by Ward CJ. It was not suspended in any way. Fifita was convicted after pleading Not Guilty on two charges of armed robbery and one of robbery. He went into a shop with a piece of rock and knocked the person to the floor and then threatened him with a knife. He took $180 in cash. In the second incident he used small machete to threaten another shop keeper and take $200. On the third occasion he pushed over a woman and took $10 cash. He had been before the court on five previous occasions and he had a depressive psychiatric condition.

Comparing Vete with Fifita's case

Looking at Fifita and comparing him with Vete there are some similarities starting with their ages - 20 and 19. Secondly some violence was used, but not serious violence. Thirdly both defendants pleaded Not Guilty and therefore do not get a reduction in sentence for a Guilty plea.

In some respects Vete's case is not as serious as Fifita's and I mention those now. There was only one robbery here, whereas there were three in Fifita's case. Vete has no previous convictions, but Fifita had several. Fifita took $390; Vete and associates got nothing. The charge against Fifita (armed robbery) carried a maximum sentence of 20 years' imprisonment; Vete could have been charged with attempted armed robbery, but for some reason that charge was not pursued, although the two charges on which he was convicted carry 15 years in total (10 plus 5).

On the other hand there are two areas in which Vete's case is more serious and the main one is that involved a rifle, not a knife. Secondly, although Vete has had a troubled family background, he does not suffer any psychiatric illness such as Fifita had. He appears to come from a good family and with that background should well know what is right and what is wrong.

Putting all matters into the balance I would have thought that Vete's situation was very similar to that of Fifita who received a sentence of four years' imprisonment.

Comparing Latu with Fifita's case

The same comments can be made in respect of Latu but with two important exceptions. First of all he did not provide the rifle that was used and was not involved in the initial planning of this incident. Secondly, he was two years younger than Vete and as a 17-year old was not long within the criminal jurisdiction of the Court. Based on those comparisons I would have thought that the appropriate sentence for Latu would be approximately half that for Vete.

Comparison with the sentence in R v'Alatini, Wyler and Latu

Yesterday I had to sentence three young men involved in three armed robberies on the one day, all using the one rifle. In the course of that I reviewed the case already mentioned, R v Fifita, and also another case, R v Moala (12 June 2001, Ward CJ). That case involved the armed robbery of the Western Union building, where an 11 year sentence was imposed after a Guilty plea. I felt that the three young men that I was dealing with yesterday fell somewhere between Moala and Fifita and I imposed sentences of imprisonment of eight years and six years on those young men, suspended for part of their length.

I have considered the sentence of eight years imposed on 'Alatini yesterday and compared it with the position of Vete today. They were of similar ages and both have no previous convictions, and in each case they provided the rifle. In 'Alatini's case however, there was no ammunition with it, and he pleaded Guilty, which normally brings a reduction in sentence of up to one-third. However, I have considered that 'Alitini's case is the more serious, for a number of reasons:

• There were three robberies, not one.
  
• 'Alatini was the one who held the rifle each time, while in the present case it was Paseka who did so.
  
• Goods or money to a total of $11,000 was obtained in the three robberies, whereas nothing was obtained in this one.
  
• 'Alitini faced a maximum sentence of 20 years, while Vete faces a maximum of 15 years, and only then by accumulating the two sentences.
  

Based on a comparison of all the factors in the two cases I would have thought that Vete's case came to a term of between four and five years, and Latu's case about half of that for reasons already given.

Conclusions

I have to try and be consistent with other sentences imposed, and also to apply to the particular facts before me the purposes of sentencing as indicated by the Court of Appeal. I consider that a term of imprisonment must be imposed and partly served by both defendants, in order to meet those various objectives of sentencing in such serious cases, particularly those of deterrence, denunciation and protection of the community. I believe the rehabilitative aspect that is important for young offenders can be achieved, so far as it is possible, by suspending part of the sentence and imposing conditions of suspension. (There was no suspension of Fifita's sentence but I nevertheless consider that it is appropriate here. The element of suspension indicates that this is perhaps a more lenient sentence than Fifita received.)

Bringing all of those considerations together, along with the contents of the probation reports and the submissions made in mitigation, I impose a sentence of four years' imprisonment [on each count] in respect of Vete. After he has served two years of that sentence the balance will be suspended for two years. In respect of Latu I impose a sentence of two years' imprisonment cumulative upon or additional to the sentence he is currently serving. He is to serve one year of that and the balance is then suspended for one year.

I say that if they had been older, mature men, their sentences would have been longer by approximately three years in each case. I have given a considerable reduction on account of their youth and immaturity. I would have made a further reduction had they pleaded Guilty and taken responsibility for this at the outset.

For both defendants there will be conditions of suspension as follows. For the period of their suspension they are to be under the supervision of a probation officer. They are to live and work where directed by the probation officer. They are to attend any programme recommended by their probation officer, and they are to undertake the Salvation Army programme for drug and alcohol abuse, under the direction of their probation officer.

The effect of suspending the sentences is this. The defendants will still have to serve the balance of their sentences if they re-offend during the period of suspension, provided the new offence is one punishable by imprisonment. They will also have to serve the suspended part of the sentence if they breach any conditions of suspension that I have just listed.

Lastly I say this. It is not a condition of their sentences but I would hope that each of the defendants will convey to the complainant Mr Tsay a proper written apology for what happened to him.