By Linny Folau

Livingi Fifita (43) received a suspended sentence for his conviction on charges that included carrying a .22 rifle with intent to commit an offence against his co-worker at a supermarket in Pea.

Acting Lord Justice Tupou sentenced him on 6 March, at the Supreme Court in Nuku’alofa. He pleaded guilty to four counts that included possession of arms without a license, trespassing with the arms in a building and common assault

The offending was on 21 August, 2023 at around 5:00pm, when the complainant, Tokolahi Paki was finishing his day shift at Costlow store. The manager of the store called the defendant who is from Pea to work the night shift. The defendant said he was ill and unable to come to work. On hearing the conversation, the complainant grabbed the phone from the manager and told the defendant to quit his job. The defendant was angry and told complainant to mind his own business, which led to a heated exchange between the two in which the complainant insisted that the defendant come over and settle the matter.

The defendant showed up in his car with a .22 rifle. He stepped out and walked to the veranda and aimed the rifle at the complainant and said, "I'll shoot the shit out of you." The complainant was afraid and tried to escape through the main entrance door of Costlow but was unsuccessful. The defendant kept pointing the rifle at the complainant and then returned to his car and left.

When the defendant was interviewed by police, he admitted that the rifle belonged to his late father. He claimed that he had thrown it into the sea. He claimed that if the complainant charged towards him, he would have hit him on the head with the rifle.

The defendant, who had no license to possess a .22 rifle, cooperated with the Police and admitted to the offending.

The Crown submitted the aggravating features of the offending were: the defendant threatened the complainant with a firearm at a public place; the firearm was unlicensed; there was no provocation, the firearm was not found and he had previous convictions. In his favour, were the defendant’s early guilty plea, remorse, cooperation with Police and his apology to the complainant.

Suspension

The probation officer was of the view that the defendant was truly remorseful. He had apologized to the complainant, but was rejected. He was placed in the range of low risk to re-offend reflected by his genuine remorse, guilty plea, good character and lack of previous convictions. The probation officer recommended a fully suspended sentence on conditions including community work.

Count 2 of carrying an arm with intent to commit an offence was the head sentence.

The judge stated that despite the court not being bound by the Crown's indicative sentencing submissions, it is faced with a dilemma when, in all likelihood, a defendant's guilty plea rests on the basis of the Crown's indicative sentencing submission that on a guilty plea, any imposed sentence will be suspended in full, as in this case. This is aggravated when the submissions and authorities relied on (especially by the Crown) fail to support the proposed indicative sentence.

“Nevertheless, I have directed myself to the case of R v Fifita [2018] TOSC 6. In that case the defendant was at the Nauti Ruby bar drinking. He was taken out by the complainant, a security at the bar. The two had an altercation outside, after which the defendant went to his car in the parking area took out his .22 rifle and took it back to the bar to shoot the complainant. A third party managed to remove the rifle from him and he was arrested.

“The rifle was not loaded. The defendant pleaded guilty. A starting point of 3 years and 3 months imprisonment was set. He was sentenced 21 months.

“Former Justice Cato fully suspended his sentence that; he was a first-time offender; he cooperated with the police; no person was hurt in the incident; the defendant, as a result of the incident has fallen from grace and suffered humiliation; the incident was out of character; and a lengthy period of community work was imposed to serve as a retributive and punishment factor in his sentence. The defendant's sentence was therefore fully suspended on conditions including 140 hours community service.

“I find the facts in Fifita intimately consistent with those in the present case. I am persuaded that it is open to me to follow Fifita and fully suspend the defendant's sentence here and I do so on conditions.”

The defendant was then sentenced to two-years jail sentence, fully suspended for 30-months on conditions that includes; not committing any offence, is placed on probation and must carry out 140 hours community work under the supervision of the probation officer, among others.”

The judge warned that failure to comply with any of those conditions may result in the suspension being rescinded and he will be required to serve the balance of his sentence.