Fifita v Rex [2000] TOCA 5; CA 07 2000 (21 July 2000)

IN THE COURT OF APPEAL OF TONGA
NUKU'ALOFA REGISTRY

App. No. 7/2000

BETWEEN:

SIKUNA FIFITA
Applicant

AND:

REX
Respondent.

Coram: Burchett J
Tompkins J
Beaumont J

Counsel: Mr Tu'utafaiva for Applicant
Mr Kefu for Respondent

Date of hearing: 10th July, 2000.
Date of judgment: 21st July, 2000.

JUDGMENT OF THE COURT

This is an application for leave to appeal against sentences which the Chief Justice imposed on the applicant, upon his plea of guilty to an indictment containing three counts, two of armed robbery contrary to s.154 (3) of the Criminal Offences Act (Cap. 18) and one of robbery contrary to s.154 (2) of the same Act. On each of counts 1 and 2 (armed robbery), the sentences were of imprisonment for 4 years, and on count 3 (robbery) the sentence was of imprisonment for 3 years, all to be served concurrently. The convictions also triggered the operation of s.24 (3) (c) of the Criminal Offences Act, in respect of a previously imposed suspended sentence of one year for housebreaking, and the Chief Justice ordered that this be brought into effect in full, to be served consecutively, so that the total sentence was imprisonment for 5 years.

It is necessary to summarize the circumstances of the offences.

(1) During the night of 12 November 1999, the applicant, a young man of twenty (he was born on 29^th June 1979) who had been drinking with another young man called Lei, came upon a shop. They went in, and Lei hit a person in the shop, one Li Yong, with a piece of rock, knocking him to the floor, where Lei threatened him with a knife. The applicant then took $180 cash which was there, and tried to hit Li Yong with a bottle. He missed, and the bottle was smashed. They ran away with the money, to spend it on alcohol.

(2) On 13 November 1999, the applicant was heavily intoxicated when he took a small machete, used to cut meat, from a storekeeper, and went to another store, where he threatened the person minding it with the machete, and took $200.

(3) On 4 December 1999, the applicant was again drunk. He entered a shop minded by a woman, where he took $10 cash, pushing her to the floor, and injuring her arm.

The earlier matter, in respect of which the applicant had been sentenced on 16 April 1999 to imprisonment for 12 months, suspended for 2 years, also involved alcohol. The applicant and another broke into the Yacht Club at night and took items, including liquor, tobacco and a CD player, totalling almost $3,500 in value.

The applicant had been before a court on five previous occasions, starting in June 1995, when he was aged 16 years, being dealt with by a community service order, fines, and a one month suspended sentence.

It is clear that the applicant has a serious alcohol problem. In the past, he has been on medication for a depressive disorder, for which his mother sought psychiatric help in August 1999. Following the three offences, he received further psychiatric treatment at Vaiola Hospital, and was later referred to the Salvation Army Alcohol and Drug Centre for rehabilitation. Although a counsellor there was very impressed with him and with his progress, the psychiatric diagnosis was: (1) Dissocial Personality Disorder ; (2) mental and behavioural disorder due to use of alcohol. He had a history of alcohol and marihuana abuse.

There are several considerations which point to the necessity of imprisonment for a substantial period in this case.

The first of these is the fact that the legislature of Tonga has only recently found it appropriate to amend the Criminal Offences Act to introduce a new offence with a severe maximum penalty to deal with conduct of the type involved in counts 1 and 2. By the Criminal Offences (Amendment) Act 1999, which was assented to on 3 November 1999, a new subs. (3) was added to s.154:

"(3) Every person who commits a robbery under sub-section (1) whilst being armed with an offensive weapon commits armed robbery and shall upon conviction be liable to imprisonment for any period not exceeding 20 years."

Plainly, the legislature regarded this offence very seriously. And it is to be remembered it is an offence which inevitably involves a severe danger that a robber armed with an offensive weapon may cause death or serious injury to an innocent person. Such an offence cannot be treated lightly.

The second consideration is that the applicant has already been shown mercy, and given an opportunity to rehabilitate himself, after conviction of a serious offence. A suspended sentence is intended to assist and encourage an offender towards reform. Its impact may be blunted if the notion becomes current that rejection of the opportunity it offers will not be regarded by the courts as a very grave matter.

Thirdly, "inconsistency in sentencing standards" is to be shunned strongly by the counts as an "error in point of principle", a matter that was emphasized in Everett -v- The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299. The consistency which is demanded is not to be equated to consistency of result, but requires consistency of approach: Lowe -v- The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609. For the same principle may yield different sentences where the facts relating to two offenders are different. In the present case, a co-offender in respect of one only of the armed robberies, Lei, was a first offender. For that offence, he received a sentence of 3 years of imprisonment, which seems to compare by no means unfavourably to the applicant with the applicant's own sentence of 4 years, as a repeat offender who committed 3 offences.

The purposes of a sentence imposed on an offender are to punish so far as is just and fitting in the circumstances ; the deterrence of criminal behaviour by the offender and others ; the rehabilitation of the offender to fulfil a useful role in society ; the vindication of society's standards ; and the protection of law abiding members of the community. The sentences chosen by the Chief Justice fulfil these purposes. However, it should be added that rehabilitation is of particular importance in the case of a young man such as this. Under The Prisons Act (Cap. 36), he can earn some remission of his sentence. There is also provision for mercy to be extended to him by a decision of His Majesty in Council. That would be exceptional, but it is provided for in the legislation, and could be sought, if his conduct in prison merits it, after he has served a substantial period.

On the material that was before the Supreme Court and has been reviewed by us, there is no ground to interfere with the orders that have been made. The application for leave to appeal is dismissed.

Burchett J
Tompkins J
Beaumont J