Discharge without conviction for man who imported rifles [1]
Monday, October 24, 2022 - 22:43
Ma’ili Finau who pleaded guilty to importing a restricted good, namely two .22 rifles and not declaring them to Customs was discharged with conviction, at the Supreme Court.
Hon. Mr Justice Cooper on 14 October in his sentencing remarks ordered the 35-year-old to pay $200 within one month, the cost of these proceedings.
"Both the circumstances of the offences and his character meant it is inexpedient to punish him and that a probation order would not be appropriate."
The court was told that on 10 June 2019, a cargo box bearing Mr. Finau's name arrived at the wharf in Vava'u on the sea vessel Imua II. On the 13 June, he went to have his cargo cleared and released to him.
“When he was asked by the Customs Officer if there was restricted cargo, he said there was not. He went as far as to say that his cargo did not contain a gun. This was not the case. There were two .22 riffles inside,” said the judge.
The case was further investigated and on 5 August 2019, and the defendant was arrested. He was taken to the police station in Neiafu, and admitted his offending.
The court heard that the defendant had worked overseas by crop picking under the RSE work visa scheme. He had done this since 2010, for the last 12-years. This meant that with the pandemic, he was stuck abroad and could not attend his hearing.
“He came back to Tonga and has been straightforward and honest in letting the authorities know of his whereabouts and surrendering to the court.”
The judge said his pre-sentence report noted how he was of good character, that he supports his sisters and their family and is a key leader of staff at the Vailima Orchards, in New Zealand. He is credited with keeping the men together and successfully managing his role.
He has no previous convictions.
The judge said an important aspect of the report was the description of how the offence arose.
“The explanation being that he had been asked by two of the residents of Falevai to bring these riffles into the Country for them. He did that. But, not wishing to fall foul of the law, told the police this would happen.”
“In addition, Mr. Finau's account is that the police advised him not to declare the riffles, as they were for other people and all he had to do was arrange for the rightful owner's licences to be produced,” he said.
The judge then considered the R v Fanguna CR 229 of 2020 and in that case Lord Chief Justice Whitten KC had to approach the question of the appropriate sentence for the same offence of importation of a firearm without a licence, where they had made a genuine error and was not wilful disregard of the law.
"In the instant case I have carefully considered Mr. Finau's character, that he is someone of positive good character, that is to say he not only has never been convicted of an offence in the past, but he leads a laudable life, supporting his wider family, managing a significant team of people in his work, playing a key role helping his employer keep the business afloat through the pandemic and his work with his church.
“When I consider all this I am minded to accept his explanation regarding the circumstances of this offence."
The judge said the defence also drew his attention to his powers under section 204 Criminal Offences Act, to discharge without a conviction.
"I have carefully considered this. Both the circumstances of the offences and his character mean it is inexpedient to punish him and that a probation order would not be appropriate.
“This is a very rare case where I feel I am able to take this step. Accordingly, I discharge him without conviction on both counts and order he must pay the costs of these proceedings."