Rex v Misinale [1999] TOCA 12; CA 13 1999 (23 July 1999)

IN THE COURT OF APPEAL OF TONGA
APPEAL FOR THE SUPREME COURT
NUKU'ALOFA REGISTRY

Cr. App. No 13/99
Case No. CR 779/97
BETWEEN

REX

Appellant
AND

HANISI MISINALE

Respondent

Coram:
Burchett J, Tompkins J, Beaumont J

Counsel
John Cauchi for Appellant
Tomasi Fakahua for Respondent

Date of Hearing: 13 July 1999
Date of Judgment: 23 July 1999

JUDGMENT OF THE COURT

The respondent was charged with embezzlement - that on various occasions between the months of April and October in 1995 he did take and convert to his own use the sum of $47,310.23 the property of others received in the course of his employment as accountant of Primary Produce Export Ltd. Following a trial, he was found guilty by a jury. On 15 April 1999 he was sentenced by Finnigan J to imprisonment for 3 years. He was ordered to serve 8 months of the sentence; the balance was suspended for 2 years from the date of his release. The Crown has applied for leave to appeal against the sentence on the ground that it is inadequate.

THE OFFENDING

The respondent, who was aged 37 at the time of the offending, had been employed by Primary Produce Export Ltd since he left school. In 1990 he had been promoted to the position of accountant, a position he held until his dismissal in 1996. Over the course of six months he systematically stole amounts totalling $47,310.23 by deducting sums from amounts due to growers of watermelon, squash and vanilla, or by not recording certain sales. By the time he was interviewed in relation to the offending, all this money had gone, he said on drinking and spending. None is likely to be recovered.

THE RESPONDENT

He was born on 15 September 1958. He married in 1979. He has 6 children ranging in age from 18 to 7 who were living at home with the respondent and his wife. He was the only breadwinner for the family. Since his dismissal he worked in the bush on short term contracts. His family receives some financial support: from relatives overseas.

He has no previous convictions. He was otherwise of good character.

REASONS FOR SENTENCE

The judge shortly reviewed the facts and other relevant aspects. He referred to the maximum sentence of 7 years. Having said that the respondent must serve 3 years, he went on to say:

"However, I have heard the submissions of Mr Fakahua and I know from the probation officer that you are the only income earner for your wife and 6 children. All your children are in school from form 6 to class 2. Without you there is only a small contribution from relatives. Therefore I direct that you will serve 8 months of your sentence from today. The balance of the sentence is suspended for 2 years from the date of your release."

SUBMISSIONS FOR THE APPELLANT AND THE RESPONDENT

It was submitted on behalf of the Crown that the sentence was inadequate, principally on the ground that, in the circumstances of this case, 2 years and 4 months of the sentence should not have been suspended.

Mr Cauchi for the appellant emphasised the following features. The offence involved the largest embezzlement that has ever been detected in Tonga. The respondent was in a position of trust. The offending took place over a period of months, it was not a single impulsive act. No part of the money has been recovered. The effect on the victim, Primary Produce Export, was serious - it ceased trading shortly after, partly as a result of the respondent's actions. He emphasised the need to deter others, to show society's rejection of this conduct, and for the sentence to be consistent with other sentences for like offending.

He accepted that the sentence of 3 years imprisonment was not one that could be challenged on a Crown appeal. But he submitted that. there was no justification for the balance of the sentence of 2 years 4 months to be suspended for 2 years. He accepted that a period of suspension of the sentence may be justified, but that period should be far less than the Judge ordered.

Mr Fakahua submitted that the sentence of three years imprisonment was appropriate, and that the Judge was justified in taking into account the circumstances of the offence and the offender. The Judge considered the correct sentencing principles. He was entitled to suspend the sentence in part.

A CROWN APPEAL

The right of the Crown to appeal against sentence is contained in s 17B of the Court of Appeal Act (Cap. 9) as inserted into the Act by s 2 of the Court of Appeal (Amendment) Act 1997. The section provides:

"17B. The Attorney-General, with the leave of the Court of Appeal, may appeal to the Court of Appeal against any sentence pronounced by the Supreme Court in any proceedings in which the Crown was a party and the Court of Appeal shall determine the appeal in accordance with sub-section (3) of section 17."

Section 17(3) of the Act provides:

"(3) On an appeal against sentence, the Court of Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefore as they think ought to have been passed and in any other case shall dismiss the appeal."

This is the first Crown appeal against sentence to come before this Court since the Court of Appeal Act was amended to permit appeals against sentence by the Crown. There are two matters of principle to which we should refer.

First, for such an appeal to succeed, clear and compelling grounds for increasing the sentence need to be established. It is not sufficient for the appellate court to consider that a more severe sentence could properly be imposed, or that the sentence imposed is inadequate or inappropriate. For a sentence to be increased on a Crown appeal, the appellate court must be satisfied that the sentence is so inadequate or inappropriate that the sentencing judge erred in that he or she must have acted upon a wrong principle, wrongly assessed a relevant circumstance, took into account irrelevant factors, failed to take into account relevant factors, or has imposed a sentence that is inconsistent with sentences the court has imposed for like offending. In such a situation, the appellate court is left with no alternative but to impose a more severe or a different sentence. If the court is so satisfied, the sentence should be increased only to the lower end of the appropriate sentencing range. Indeed, the appellate court, in fixing the proper range for this case, should take into account that it is an added penalty to have to face sentence a second time, and to have hope deferred, and perhaps dashed, in the result.

Secondly, the right of the Crown to appeal affects the course the Crown should take when the sentence is before the sentencing judge. As was said by the Full Court of the Federal Court in R v Tait [1979] FCA 32; (1979) 24 ALR 473, 476, after pointing out that a. Crown appeal puts the defendant in double jeopardy:

"It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error. The Crown has been said not to be concerned with sentence .... but when a statutory right of appeal has been conferred on the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions fairly and in an even handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it."

Now that the Crown in Tonga has the right to appeal against sentence, these principles should be applied here. We emphasise the importance of counsel for the Crown carrying out this duty "fairly and in an even handed manner". He or she must never approach the task in an adversarial manner, nor press for a high sentence. Counsel's role should be to assist the judge to arrive at a proper sentence, consistent with other sentences imposed for like offences. In that latter respect, counsel for the Crown should supply to the judge details of such sentences, including, where appropriate, guideline judgments from this Court and other appellate courts.

THE SUSPENSION OF THE SENTENCE

In Mo'unga v The Crown CA 15/97, judgment 7 August 1998, this court commented on the principles to be applied in suspending a sentence at page 4 of the unreported judgment:

"In New Zealand, where there also are no criteria in the relevant statutory provisions, the Court of Appeal, in R v Petersen [1994] 2 NZLR 533, in a judgment delivered by Eichelbaum CJ, said that the suspended sentence is intended to have a strong deterrent effect, so that if the offender is incapable of responding to a deterrent, it should not be imposed. Apart from that, the Court suggested a number of situations, intended to be neither exhaustive nor comprehensive, in which the suspension of the sentence may be appropriate:

(i) Where the offender is young, has a previous good record, or has had a long period free of criminal activity.

(ii) Where the offender, is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.

(iii) Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender.

(iv) Where there has been cooperation with the authorities.

We see no reason why this approach should not be followed in Tonga."

These, as the reference makes clear, are not the only factors. Also relevant may be the seriousness of the offending, the need for an effective deterrence, the effect on the victim, and the personal circumstances of the offender or those dependent on him or her. There may well be others. But although these are factors that may be taken into account in considering whether, and if so for how long, to suspend part or all of a sentence, the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender. If it is not, or if for any reason rehabilitation is not relevant to the sentence to be imposed, suspension of any part of the sentence is in general not appropriate.

There is one respect in which the sentence is clearly in error. By suspending the unserved portion of the sentence, 2 year 4 months, for 2 years, it follows that at the expiration of 2 years, the respondent will be required to return to prison for the balance of 4 months. We do not consider that this can be what the Judge intended. The suspension of the sentence for a period less than the balance of the sentence was an error. When a sentence is suspended, it must always be for not less than the unserved portion of the sentence.

It remains to consider whether the sentence of 3 years imprisonment, suspended for all but 8 months, has resulted in a sentence so inadequate that this Court should increase the sentence. We have regard to the seriousness of the offending, that it was the result of dishonesty deliberated upon over a period of months, that the respondent was in a position of trust, that the theft was from an employer, that for offences of this kind there is a need to impose a sentence that will deter others, and to sentences imposed in other cases. We also have regard to the respondent's blameless record, to his co-operation with the police, to the effect any custodial sentence will have on his family, and the effect of the conviction on his own future. He has been an accountant all his working life. This avenue of employment, or any other of a like kind, will no longer be open to him. To that extent, the sentence will have a more serious effect than one where the defendant can return to his employment on release. For the same reason it is highly unlikely that the respondent will offend again.

The reason the Judge gave for suspending the sentence, that the respondent was the breadwinner for his family, was not, and is rarely likely ever to be, on its own, a proper reason for suspending a sentence. Having considered the factors to which we have referred, we are satisfied that the sentence with, the suspension ordered, is so inadequate that this Court is bound to increase it.

Bearing in mind that this is a Crown appeal, that although the respondent cannot be considered a young man, this is his first conviction, that suspending the sentence in part will aid in his rehabilitation, that there was a degree of co-operation with the authorities, and having some regard to the situation of his family, we accept, as did Mr Cauchi for the Crown, that the sentence should be suspended, but for a period substantially less than that ordered.

THE RESULT

The sentence of three years imprisonment is affirmed. The application for leave to appeal is allowed. The suspension of that sentence for the balance, after the respondent has served 8 months, is quashed. In lieu thereof, the last 12 months of the sentence is suspended for 2 years from the date of his release. To that extent, the appeal is allowed.

Burchett J, Tompkins J, Beaumont J