IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 103, 318, and 372/2007, CR 31/2008

R

v

Valu

Andrew J 
3 March 2008 

Sentencing – housebreaking and theft – 13 year-old accused pleaded guilty – sentence of imprisonment 

The accused, who was only 13 years of age, had pleaded guilty to seven separate offences involving housebreaking and theft. The first offence had been committed when the accused was with the Youth Diversion Scheme under which he had been placed in the custody of a supervisor for three months to allow him to complete appropriate rehabilitation progress. Prior to being referred to diversion, the accused had been placed by a magistrate under the care of a Salvation Army officer for a few weeks but he had run away. The last offence had been committed three days after he had been granted bail in the final attempt to keep him out of prison. Tonga had acceded to the Convention on the Rights of the Child in 1995 and Article 37(b) of that convention provided that: "The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time."

Held: 

1. It was apparent that the accused had become incorrigible. He had been given every chance to keep out of jail and there was no juvenile detention centre or other institution that could take him. Society could no longer be put at risk and as a last resort he would be sentenced to imprisonment not only as a matter of public deterrence but simply for the protection of the community.

2. Taking into account the accused's guilty plea, his background and the provisions of the Convention, the court sentenced the accused on each count to imprisonment for 18 months. The sentences were made concurrent and backdated to allow for time already spent in custody. The final six months of the term was suspended for two years upon conditions.

Counsel for the Crown : Ms Finau 
Counsel for the accused : Mr Pouono 

Judgment

The accused has pleaded guilty to a total of 4 separate matters. The second group of charges ie: CR 318/07 involve 4 offences so that in all there are 7 separate offences. 

The first offence in order of which he has been charged, was on or about 18th October 2007 when the accused committed the offence of housebreaking and of theft when goods worth some $175 were taken from a home. The facts disclosed that the accused and two others removed 3 louvers from a home at Kolomotu'a and removed the goods. Only a small part of the goods were recovered. 

The 2nd group of charges (CR 103/07) involve 4 offences. On 30th May 2006 the accused broke into a home at Kolofo'ou and stole a mobile phone worth $900. On or about 1st June 2007 he went to a store, removed the window climbed in and stole goods - he then broke into a home next door and stole a bag to put the goods in. 

On 6th June 2006 he and others went to the Talamahu market and hid there at closing time. They then broke into a stall and stole a case with $3,000 inside and then broke out of the market.

On the 12th June 2006 he again broke into the market and with others stole goods worth $1,309. 

On or about the 12th August the accused with others stole a vehicle from the office of the Revenue Department. They later changed the windows and wheels of the stolen vehicle and also changed the licence plates (CR 318/07). 

On the 21st January 2008 the accused went to a home and removed louvers from a window - he then entered the home and stole goods to the value of $5,650. (CR 31/2008). 

The first offence was committed when the accused was with the Diversion Scheme. He does not seem to be here charged with the offence which led to him being directed to the diversion scheme. His work plan was that he be placed in the custody of the Langikapo Mei Hevani for 3 months to allow him to complete appropriate rehabilitation progress. He breached this work plan by committing further offences. In addition, prior to the accused's referral to the Youth Diversion Scheme he was placed by the Magistrate Court under the care of Mr Lavelau a Salvation Army officer for a few weeks but he ran away from this. 

The accused is only 13 years of age. He was born on the 7th August 1994. It is apparent that he has become incorrigible. Prior to the last offence on the 21st January 2008 he had been granted bail 3 days earlier due to his young age and in a final attempt to keep him out of prison. He was sent back to live with his mother and he was admonished by the Court that this was the final chance and that any further offending would have to involve a consideration of imprisonment despite his age. Yet he committed the offence within 3 days of his release and it is a very serious offence. 

Tonga acceded to the Convention on the rights of the child in 1995. 

Article 37 of that Convention provides: 

"ART 37(b) - The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. 

In this case the child has become incorrigible. Every chance has been given to keep him out of gaol. There are no further institutions that I can find who will take him. There is no juvenile detention centre. He has been kept out of prison as far as is possible but it has in the end all been to the suffering of the community. Society can no longer be put at risk and as a last resort he must now be sentenced to imprisonment not only as a matter of public deterrence but simply for the protection of the community. 

I do take into account the fact that he has pleaded guilty and his sentence will be reduced accordingly. As to remorse I can find little evidence of that. He seems to have developed a belief that he can crime with impunity and has come to believe that the Courts leniency means that he can do as he pleases.

I also take into account the accused's background. His father has been in prison. He had an unsettled up-bringing and seems to have been past from parents and grandparents. It does appear that he received care and attention by both sets of grandparents but he would not be controlled and it is reported that he committed various petty crimes. Following his breaking of his work plan order he was placed in the custody of the police as far as I can determine, that was on the 18th October 2007. He was then released on bail on the 18th January 2008 so that he was in police custody for 3 months. That was when he was released on bail with a final warning that no further offending could be tolerated. 

It is with regret that I feel that there is no other option left, and it is a last resort, but that he must now be sentenced to imprisonment. All alternatives have been pursued without success. I take into account, the Convention in the rights of the child and sentence the accused to the shortest appropriate period in the circumstances. 

For each of these offences the accused would have received sentences of 2 years imprisonment. That is reduced to terms of 18 months. 

On each Count the accused is sentenced to imprisonment for 18 months. The final period of 6 months shall be suspended for 2 years upon condition that the accused be of good behaviour and that he accept the supervision and control of the probation office in that period. 

All sentences are to be served concurrently.

The sentences are to be backdated by 3 months due to the time already served so that the sentences shall be deemed to commence on the 3rd December 2007. The accused shall therefore be eligible to be he released after serving a further 9 months.