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Rex v Lolohea - Sentence [2025] TOSC 42; CR 30 of 2025 (8 May 2025)

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

CR 30 of 2025

BETWEEN:
REX
-Prosecution

AND:
PESAMINO LOLOHEA
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Mr K Tamo’ua for the Crown Prosecution
Mrs F Vaihu for the Defendant

Date: 8 May 2025

1. CHARGES & BACKGROUND

1. On 26 March 2025, you pleaded guilty to the following charges:
   1. Count 1: Serious Causing Bodily Harm, contrary to section 107(1), (2)(c) and (4) of the Criminal Offences Act
   2. Count 2: Presenting Loaded Firearm within Range, contrary to section 109 of the Criminal Offences Act
   100. Count 3: Common Assault, contrary to section 112(a) of the Criminal Offences Act.
2. On the 9 September 2024 you went to his house because you believed that the victim had been persistently stealing from your plantation.
3. Whilst he was asleep you kicked open the door carrying a shotgun, demanded why the victim, Pouvalu had cut down his Tutu plants at his bush allotment.
4. There was a verbal altercation in which the victim took up a hammer and told you to get out of his house. You backed away pointing the shotgun at the victim and threatened to shoot him.
5. You kept pointing the shotgun at the victim who managed to close the door. You then discharged the shotgun at the door. The pellets from the shotgun fell through the door hit the victim on his left thigh causing injuries, which I accept were not life-threatening or very serious.
6. Matters did not stop the because the victim got outside the property and a struggle ensued during which the shotgun was discharged into the air.
7. Still matters did not stop there because you then threw down the shotgun and picked up a spade which you used to beat the victim and eventually you left the scene but came back and took out your shotgun and pointed at the victim again and a neighbour became involved.
8. You ignored her entreaties and moved over closer to the victim still pointing your shot your shotgun at him.
9. The victim threw his hammer at you, and you told the neighbour to move to the side so that you could shoot him. A number of neighbours heard what was happening and treated you to desist and you eventually drove off.
   2. CROWN SENTENCING SUBMISSIONS
10. On 6 May 2025, the Crown filed their sentencing submissions to assist the Court.
11. Aggravating and mitigating factors were submitted along with the following caselaw in support;
    1. R v Holani CR 52/2022
    2. R v Tavake & Kautai CR 17/2022
    100. R v Toki AC 19/2022
12. A victim impact report was also included where I am told the victim
13. In your case, the Crown recommended the following sentence:
    1. Count 1 – 3 years imprisonment with no suspension
    2. Count 2 – 12 months’ imprisonment
    100. Count 3 – 6 months’ imprisonment
14. The Crown submit that Count 2 should be served partially cumulative resulting in a final sentence of 3 years 6 months imprisonment.
    100. MITIGATIO PLEA & PRESENTENCE REPORT
15. A mitigation plea was filed on 2 May 2025 from learned counsel on your behalf. I am told that the victim is married to your niece and there is a history there.
16. I further consider all your mitigating factors submitted in support and the letters of support demonstrating that you are an active member of the community.
17. On 8 May 2025, a report from the Probation Office was filed where I was told further details about your family, upbringing, personal history and your version of the offending.
18. You have diabetes and high blood pressure in relation to your overall health and you are assessed as “low risk” for reoffending.
19. A fully suspended sentence is recommended by the Probation Officer on conditions.
    4. DISCUSSION
20. Now this was a very serious incident indeed I accept that the injuries which Pouvalu suffered were not extremely serious being swelling on the left forearm, multiple small puncture wounds on the left thigh and small superficial abrasions probably caused by the metal pellets when you fired your 12-gauge shotgun.
21. Now, the ownership of shotguns in the Kingdom is widespread and is perfectly acceptable and understood for legitimate purposes among the agricultural community however this places a strong responsibility on those who are licensed to hold firearms from not using and abusing it as you did.
22. I have considered with great care the voluminous letters of support and petitions and it is plain that you are, in normal circumstances an upstanding member of the community and greatly respected.
23. That makes what you did particularly unfathomable. I have considered the victim impact report and accept that your apology and payment of $2000 has been accepted by the victim which is to his credit but since this incident they have left Lapaha and returned to the Vava’u that was a prudent step, but I accept that the victim who has become rather introverted about the incident must have suffered mentally as a result.
24. I have considered the comparable sentences which the prosecution has helpfully submitted but as I have previously said in many cases before, each case is to be decided on its own particular facts, their own aggravating and mitigating features bearing in mind the helpful comparables provided.
25. The use of a shotgun is a deadly weapon and self-evidently is potentially lethal. Although there were some provocations the sense of your suspicion that the victim been stealing yur crops, but that was not in anyway justification for what you did.
26. The incident itself was not a single act of violence but the use of a gun and then a spade. In addition, what you did must have greatly disrupted the peace of your local community.
27. I accept that it was not premeditated in the sense of careful preplanning, but it was neither opportunistic nor accidental because you turned up at the premises with a loaded gun.
28. On the other hand, you pleaded guilty at the first opportunity, you apologised and made the monetary compensation, you surrendered your firearm, and you have no previous convictions.
29. Balancing these factors I have concluded that the overriding duty of the Court is to seek to stamp out violence involving firearms in this Kingdom. For those reasons no sentence other than an immediate custodial sentence is appropriate.
30. I take Count 1 as the head count and impose a starting point of 4 years imprisonment however because of the strong mitigating factors to which I have already referred to, I will reduce that sentence by 2 years making a total of 2 years imprisonment.
31. In Count 2, presenting a loaded firearm, a start point of 18 months’ imprisonment with a 6-month mitigation reduction is set.
32. Count 3, common assault, a starting point of 9 months imprisonment with a 3-month mitigation reduction.
    5. CONCURRENT or CONSECUTIVE
33. I have considered whether or not the sentences should be consecutive or concurrent and have concluded that having regard both to the overall proximity of the incident and the principle of totality to impose concurrent sentences which means that all sentences will be served concurrent to each other.
    6. SUSPENSION
34. I have considered whether there is any room here for a suspension in whole or in part having regard to the Mo’unga principles.
35. You are not young, you have not been in trouble before and I accept that the prospect of your rehabilitation is good.
36. Accordingly, some partial suspension of your sentence is appropriate.
37. Accordingly, I suspend the last 12 months of your sentence for a period of 2 years on conditions.
    7. FINAL RESULT
38. For Count 1 of Serious Causing Bodily harm, I impose a sentence of 2 years imprisonment with the last 12 months 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
    100. You must report to the probation office within 24 hours of your release from custody.
    4. You must undertake a course of life skills and anger management under the direction of the Probation Office
39. For Count 2 of Presenting Loaded Firearm within Range, I impose a sentence of 12 months’ imprisonment concurrent to Count 1
40. For Count 3 of Common Assault, I impose 6 months imprisonment concurrent to Count 1.
41. The 12-gauge shotgun serial number R515933 is forfeited to Tonga Police pursuant to section 37 of the Arms and Ammunitions Act to use or dispose of as they see fit.
42. The upshot is, you will serve 12 months’ imprisonment, following by 12 months suspended sentence for 2 years on the conditions I have already mentioned.
43. That is the order of the Court.

HON. MALCOLM BISHOP KC
LORD CHIEF JUSTICE
NUKU’ALOFA

8 May 2025