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R v Moa [2025] TOSC 52; CR 53 of 2025 (18 July 2025)

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

CR 53 of 2025

REX
-v-
Penisimani Foukimoana Koli MOA

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
Appearances: Mr. G. Aleamotu’a for the Prosecution
Mr. A. Fusimalohi for the Defendant
Date: 18 July, 2025

The proceedings

1. On 23 May 2025, the Accused pleaded guilty to one count of possession of an illicit drug contrary to section 4(1)(a)(i) of the Illicit Drugs Control Act when he knowingly without lawful excuse was found in possession of 0.92grams of cannabis a Class B illicit drug (Count 1), possession of arm without a licence contrary to section 4(1) and (2)(b) of the Arms and Ammunitions Act, when he had in his possession a .22 semi-automatic pistol, without a licence (Count 2), one count of trespassing with arms in building contrary to section 45 of the Arms and Ammunition Act, when he as a trespasser and without lawful excuse entered Emerald Hotel with a .22 pistol (Count 3) and one count of common assault contrary to section 112(g) of the Criminal Offences Act, when he pointed the .22 pistol at the forehead of Sonatane ‘Apitaki Taufa Havea (referred to hereafter as “Sonatane”) who believed on reasonable grounds that he was going to shoot him without his consent (Count 4).

The offending

2. On or about 4 January 2025, at around 1:45 am, Sonatane was working at the front-desk of the Emeralds Hotel when the Accused entered the Hotel. He was drunk and bellowing foul language. He approached the front desk and asked for keys to a room.
3. Sonatane told him there were no vacancies at the Hotel and the front desk had closed. The Accused took out a pistol from his pocket, pointed it at Sonatane’s forehead, poked his forehead with it while screaming and swearing, then he put the pistol back in his pocket and left the Hotel.
4. The Complainant lodged a complaint with the Police. At around 2:45 am that same morning, the Police stopped a black Voxy vehicle with licence plate L32272 (referred to hereafter as "the Vehicle”) at Hala'ovave.
5. The Accused and 3 others were removed from the vehicle. The Accused was seated at the back on the right side of the Vehicle.
6. A search of the Accused uncovered a silver pistol in his trouser pocket. Police Officer ‘Aho noticed a pack which he suspected was cannabis and the Drugs squad were alerted.
7. Police Officer Fifita of the Drugs Squad arrived and informed the Accused and his companions’ attention were drawn to the suspected pack of cannabis and were informed that a search would be conducted at the Central Police Station.
8. At the Police Station, the Accused and his companions were led to the Vehicle and were read their rights. Then they were asked who the suspected pack of cannabis belonged to. The Accused volunteered, it was his.
9. Police Officer Fifita brought out the pistol found on the Accused, reminded the Accused of his rights and then asked who the pistol belonged to. The Accused said it was his.
10. The Accused was informed he will be charged for possession of an illicit drug and an arm without a licence.
11. On 7 January, 2025 the pistol was examined by Police Officer Tomu. He confirmed it was a real firearm, in good condition and capable of firing a projectile. It was also confirmed that the Accused held no licence for a .22 pistol or .22 ammunition.
12. On 10 January, 2025 the suspected pack of cannabis was tested by Police Officer Leveni. He confirmed that the material in the pack tested positive for cannabis and weighed 0.92 grams.
13. The Accused chose to exercise his right to remain silent.

Crown’s submissions

14. The Crown submits that the aggravating features of the offending were:
    1. The Accused threatened the Complainant with a firearm at a public place;
    2. The firearm was licensed;
    100. No provocation;
    4. The Accused was found with an illicit drug Class B; and
    5. The Accused has a previous conviction for drug offending.
15. The Crown submits the following as mitigating features;
    1. The Accused’s early guilty plea; and
    2. Cooperation with the Police;

Victim Impact Report

16. The Complainant is traumatized from the event and has quit his job as a result. The Accused has not apologized to the Complainant and the Complainant does not forgive the Accused for what happened.

Crown’s Position on Sentencing

17. The Crown submits the following comparable sentences in the cases of:

Case relating to Drug Offending

1. Rex v Heneli Manuofetoa CR147-149 of 2023- The accused was found guilty o charges including possession of an illicit drug (Class B), cannabis weighing 0.41grams. The starting point imposed was 3 months imprisonment. That was increased to 5 ½ months to reflect his previous convictions for illicit drugs.

Cases relating to Firearm Offending

2. Rex v Livingi Fifita CR174 of 2023- The Accused pleaded guilty to charges that included, possession of arms without a license (Count 1), carrying an arm with intent to commit an offence (Count 2) and common assault (Count 4). The starting point imposed for these counts included 12 months imprisonment for Count 1, 3 years imprisonment for Count 2 and 12months imprisonment for Count 4. A 30% deduction was made from each count resulting in the final sentence being 2 years imprisonment to be fully suspended for a period of 30 months on conditions. Counts 1, 3 and 4 was to be served concurrent to the head count, Count 2.

100. Rex v Kaluseti Holani CR 52 of 2022- The Accused pleaded guilty to several counts including possession of an unlicensed firearm (Count 1) and trespassing with a firearm (Count 2). The starting point imposed for each count was 18 months imprisonment for Count 1 and 2 ½ years for Count 2. The final sentence imposed was 12 months imprisonment for Count 1 and 20 months imprisonment for Count 2.

18. The Crown’s proposed sentencing formulation were:
    1. Starting Point;

Count 1 – 9 months imprisonment

Count 2 – 12 months imprisonment

Count 3 – 30 months imprisonment

Count 4 – 12 months imprisonment

2. Mitigation;

Count 1 – 8 months imprisonment

Count 2 – 9 months imprisonment

Count 3 – 20 months imprisonment (head count)

Count 4 – 8 months imprisonment.

100. Suspension – Partial suspension; and

4. Final Sentence – 20 months imprisonment, the final 4 months suspended for 3 years on appropriate conditions.

Defendant’s submissions

19. Any submissions on behalf of the Defendant was to be filed on or by 7 July, 2025. No such submissions were filed.

Pre-sentencing report

20. The Defendant was born and raised at Kolofo’ou, Tongatapu. His family migrated to Sacramento, United States of America when he was 11 years old. However, his father returned to look after his parents in Tonga which led to his parents’ separation.
21. The Defendant completed High School and entered Junior College in the States which he quit after a year.
22. He was deported to Tonga on 19 March, 2015 after being convicted for burglary and assault. It was reported he became addicted to alcohol and drugs in the United States and after deportation to Tonga, it has not stopped.
23. He is married with 5 children, 3 are his wife’s children from other relationships and the younger two from their marriage. The youngest is 9 months. His wife acknowledged that the alcohol and outings with friends on weekends had not helped their marriage and she has experienced domestic abuse under his hand.
24. The Defendant has very little connection with the community and church. He exports taro and cassava to relatives overseas and sells them locally, earning approximately $5,000 every 3 months.
25. As for the offending, the Defendant said he and friends had been drinking at the bars until they closed. They got food and went to the waterfront opposite Tanoa Hotel. He does not recall the offending as he was inebriated.
26. On the re-offending scale he is considered a high-risk for a lack of good character, previous convictions, breach of bail conditions and little to no connection with church or community. His attitude toward the offending, was said to be linked to long-term use of illicit drugs and alcohol.
27. The Probation Officer was not convinced of his remorse and noted that he had not shown any positive change and needs professional treatment for the alcohol and drug abuse.

Starting Point

28. The maximum statutory penalties for each count here are, for Count 1 – a fine of $5,000 or imprisonment for a term not exceeding 1 year or both, for Count 2 – 5 years imprisonment, for Count 3 – 5 years’ imprisonment and for Count 4 – a fine not exceeding $5,000 or 1 year imprisonment or both.
29. The Prosecution is correct that Count 3 is the more serious offending and the appropriate head count.
30. This Court has previously expressed the view that serious consequences should follow a conviction for possession of an unlicensed firearm^[1] and that it is almost inevitable that a custodial sentence will be imposed for offences involving firearms^[2].
31. Possession of unlicensed firearms is increasing and dangerously common which is often linked to drug offences as in this case. Here, the Defendant foolishly thought it appropriate to carry in his trouser pocket an unlicensed .22 pistol, while out drinking. It seems there was no ammunition inside the pistol, but only he knew that.
32. Then to go on and point it at Sonatane’s forehead, poke him with it, while intoxicated and screaming profanities turned Sonatane’s night into one of terror. So much that he left for his home after the incident and quit his job a week later. No punishment imposed here can undo Sonatane’s experience in the early hours of the morning in question. Hopefully, the impact will subside with time.
33. Having regard to the maximum statutory penalties here, the seriousness of the offending, the comparable sentences mentioned by the Prosecution only as a guideline, as each case must be dealt with in accordance with its specific facts, the principles of punishment, the need to denounce this type of uncivilised behaviour, the need for specific and general deterrence, I fix the following starting points:

Count 1 – 9 months imprisonment

Count 2 – 12 months imprisonment

Count 3 – 30 months imprisonment

Count 4 – 12 months imprisonment

34. For his early guilty plea and cooperation with the police, I accede to the Prosecutions submissions and reduce the starting points to:

Count 1 – 8 months imprisonment

Count 2 – 9 months imprisonment

Count 3 – 20 months imprisonment; and

Count 4 – 8 months imprisonment

35. Counts 1, 2 and 4 shall be served concurrent to count 3.
36. The Prosecution has suggested that part of the sentence I impose should be suspended. I do not agree, for the following reasons.
37. The Defendant is not young and is a recidivist. He has had the benefit of the court’s leniency in the name of rehabilitation on previous occasions and has continued to re-offend. In 2015, he received a fully suspended sentence of 3 months for theft and a discharge without conviction in 2016 for trespass. He was convicted in 2020 for possession of an illicit drug and was sentenced to 6 months imprisonment, fully suspended. Today, he has been in custody since 21 April, 2025 for breaching conditions of his bail in this matter. Additionally, I have considered relevant the seriousness of the degree of harm^[3] inflicted on Sonatane by the Defendant’s conduct here.
38. Although I note that the Defendant cooperated with the police, I have considered that as a mitigating factor and have made necessary deductions for it. To factor it in at this stage again would unfairly double the benefit attributed to the Defendant.
39. Lastly, a suspended sentence is not an entitlement and will be withheld when it is patently abused as in this instant. Accordingly, I decline to suspend any part of the sentence imposed.

Result

40. The Defendant is convicted and sentence for the following offences:

Count 1 – for possession of an illicit drug and sentenced to 8 months imprisonment;

Count 2 – for possession of an arm without a licence and sentenced to 9 months imprisonment;

Count 3 – for trespassing with arms in a building and sentenced to 20 months imprisonment; and

Count 4 – for common assault and sentenced to 8 months imprisonment.

41. The sentences imposed for Counts 1, 2, and 4 shall be served concurrent to Count 3.
42. In the result, and subject to those conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 1 year and 8 months in prison to be backdated to reflect his time in custody.
43. I also order that the firearm subject of this proceeding, be forfeited to the Crown, pursuant to s. 37 of the Arms and Ammunition Act.
44. Pursuant to s 32 of the Illicit Drugs Control Act, the illicit drugs subject of this proceeding shall be destroyed.
    

P. Tupou KC
J U D G E

NUKUÁLOFA: 18 July, 2025

^[1] R v Tu’iha’ateiho [2015] TOSC 8
^[2] R v Kohinoa [2008] TLR, 9
^[3] See Losalu v R [2022] TOCA 24