Lord Tu'iha'ateiho fined $2,500 for illegal firearm [1]
Friday, March 6, 2015 - 22:00. Updated on Tuesday, March 10, 2015 - 02:26.
Lord Tu’iha’ateiho was fined $2,500 pa’anga on one charge of possession of a firearm, a .22 automatic pistol without a license, today at the Nuku’alofa Supreme Court.
A current Ha’apai Noble’s Representative to Parliament and former Deputy Speaker, he pleaded not guilty to the charge but was found guilty on November 21, 2014 after a trial before Mr Justice Cato.
The judge fined the noble $2,500 to be paid within two-months from today, or in default three-months imprisonment.
He said this was an appropriate case where he applied section 30 of the Criminal Offences Act, dealing with the sentence by way of fine rather than imprisonment.
“The defendant is a man of good character, a first time offender and only one firearm was involved, as his counsel emphasized. I take the view that he was in possession of the firearm should a need for protection arise, not for any more sinister criminal purpose. I consider also his decision to come forward and alert the police to the existence of the firearm was a factor, which further justifies mitigating a more serious penalty,” he said.
The judge said the Acting Attorney General ‘Aminiasi Kefu, appropriately in his view, did not suggest that he should deal with this matter other than by way of a fine.
Acquittal
The court was told that the sentence hearing which was initially set for January 19, 2015 was further adjourned to February 27 at the request of the noble’s counsel K. Barron Afeaki SC, in order for him to collect evidence to proceed with an application that the noble be discharged under the provisions of section 204 of the Criminal Offences Act, as provided for by Section 28 of the Criminal Offences Amendment Act 2012.
This is a new provision and this was the first time this section was considered by this court.
Counsel for the defendant suggested to the judge that under section 204, he should decline to enter a conviction.
Mr Justice Cato said the counsel argued that the judge should not impose a conviction because the noble would be considerably inconvenienced in relation to travelling to other countries, either privately to be with relatives who lived in the US or in Australia and elsewhere, or in his parliamentary life.
He also submitted that as a member of parliament the noble could be expected to travel and a conviction might limit his ability to properly perform these duties because he has to travel to many countries.
He argued a conviction might even impair his client's security of tenure if he were unable to perform as a member of parliament. But he could not say, however that any country would deny him admission with certainty, said the judge.
Guilty
Mr Justice Cato said parliament had set a clear directive to the courts that serious consequences should follow a conviction for being in possession of an unlicensed firearm.
“Although I have mitigated the penalty of imprisonment by imposing a fine under section 30, which Kefu, in the circumstances of this case was in agreement, to go further would in my view be wrong as it would diminish the importance of the need to ensure compliance with legislative and promote firearms security and control.”
Kefu had submitted that it would be wrong to discharge the noble under section 204 in these circumstances as a discharge without a conviction should be reserved for only exceptional cases and that deterrence to other offenders as well as prominent members of society was an important issue here.
He also emphasized the need to ensure that sentences are proportionate to the offending which he submitted was serious offending, and that it was important to uphold public interest in protecting the public from unlicensed and unregulated access to firearms.
“The licensing and security of firearms in any society is a matter of great importance and in this case paramount consideration. I consider Kefu is correct when he submitted that as a very senior member of the Tongan community, with his societal and professional responsibility, he should have known better and respected the legislation.”
The judge said Lord Tu’iha’ateiho had other licensed guns but his counsel did not advance any satisfactory reason why he had chosen not to license the pistol aside from a suggestion it was an ornament.
The weapon was by his bed with access to ammunition as a protective measure was not simply an ornament as suggested, he said.
“It would be a wrong message for the Tongan community that persons could avoid conviction for being in possession of unlicensed firearms by essentially an appeal to the avoidance of possible travel restrictions."
The incident arose after the noble’s home was burgled and the pistol was stolen some four-years ago. The noble had informed the police that it was missing but the firearm was used to commit another serious crime either directly or indirectly by the burglar.
“This is an illustration of the importance of ensuring that firearms are licensed and secure,” said Mr Justice Cato.
Lord Tu’iha’ateiho retains his title since his sentencing was less than two-years. Clause 23 of the Constitution states that a sentence of two-years or more would mean loss of office. While section 37 of the Land Act states he will lose his title and estate.