Malafu v Rex [2002] TOCA 2; CA 15 2002 (23 July 2002)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

Case No. CR 242 6/2001
Cr. App. No 15/02

BETWEEN:

PENISITI MALUFU
Appellant;

AND:

REX
Respondent.

Coram: Burchett J
Tompkins J
Beaumont J

Counsel: Sione Fifita for appellant
‘Ofa Pouono for respondent

Date of Hearing: 23 July 2002
Date of Judgment: 23 July 2002

JUDGMENT OF THE COURT

[1] By an indictment dated 20 November 2001, the appellant was charged with escape from lawful detention, armed robbery, unlawful imprisonment, possession of arms and ammunition without a licence, housebreaking and theft. He with four other co-accused appeared before the Chief Justice on 23 November 2001. He was represented by Mr Kelepi Piukala as counsel. Before the court was a summary of facts that clearly implicated the appellant and others in the offences charged. He pleaded guilty to and was convicted of the first five counts. The sixth count of theft was not put. On 17 December 2001 he was sentenced to a term of imprisonment of nine years.

[2] On 3 July 2002 the appellant filed an application for leave to appeal out of time against those convictions. This application came before this court on 18 July 2002. The Crown not opposing, we granted leave to appeal and for the parties to file affidavits in support of and in opposition to the appeal. We also made timetable orders to ensure that the appeal could be heard on 23 July 2002. Affidavits in support of and in opposition to the appeal have now been filed.

The grounds of appeal

[3] The appeal is against conviction and sentence. The grounds of appeal are that the appellant was not properly advised and represented, that he did not understand his right to appeal, that he did not understand the effect of the guilty plea and that the sentence was excessive.

[4] The grounds of the appeal against conviction are supported by the affidavit now filed by the appellant. The relevant paragraphs are:

“(2) My counsel in the lower court was Kelepi Piukala.

(2) I instructed my counsel that I was not guilty. [There are two paragraphs two]
(3) My counsel persuaded me to plead guilty for it would be better for me.
(4) I trusted my counsel and pleaded guilty.”

[5] No further details are given relating to the guilty plea. Later in the affidavit he deposes that he was not advised of his right of appeal, that he did not understand that his guilty plea would result in a sentence of a term of imprisonment of 9 years, that he was not involved with the offences, that the offences had occurred when he and others had escaped from police custody, that although he confessed to these crimes to the police, he did not participate in committing them and that he felt deprived of justice for serving 9 years for something he did not do.

[6] Other than a brief submission, the Crown produced no evidence or relevant documentary information relating to the offence, the appellant’s alleged role in the offence, the plea of guilty or the appeal against sentence. It ought to have done so. Because of this omission, we adjourned the hearing to enable the relevant information to be put before the court. When the hearing resumed, the Crown presented an affidavit by a police officer with the statement the accused had made to the police. This was a full and detailed statement, apparently in the appellant’s handwriting, in which he gave an account of his escape from custody and the subsequent robbery. There is also produced the further briefer statement made when the appellant was charged with the offences, when he gave some further details of the robbery and the rifle that was used.

[7] We feel bound to observe that the assistance the Court received from the Crown in this and other cases that have come before the Court in the current session has been markedly less than the Court expects from the Crown. It is the duty of counsel for the Crown to put before the Court careful, and in appropriate cases, detailed submissions, including citation of appropriate authority and any other relevant information, such as references to relevant passages of evidence on factual issues. On sentence appeals, details of other sentences imposed in comparable cases should be provided. In the cases to which we have referred, counsel for the Crown have not complied with this duty. By way of example, the authority to which we refer later in this judgment was not cited to the Court by the Crown.

The principles to be applied

[8] A somewhat similar situation arose before the Court of Appeal in England in R v Pearce, [1976] Crim L.R. 119. The appellant had pleaded guilty to arson and conspiracy to defraud. He said he intended to plead not guilty. After speaking to counsel he was in a state of great mental anxiety and confusion. He was under the impression that his counsel was not familiar with the case, thought he was guilty, and would not represent him adequately. He was told that if he pleaded guilty he would be sentenced to borstal but if not guilty to three or four years imprisonment. He decided to plead guilty as the lesser of two evils. The Court of Appeal held that an ill-advised plea of guilty was not such an irregularity as came within the relevant section of the Criminal Appeal Act 1968. The only alternative was an order of venire de novo on the ground that his plea was a nullity.

[9] The court held that in these circumstances the plea was not a nullity. What had to be shown was that the apparent plea of guilty was no plea at all because it was made under pressure or threats or the like in circumstances where the defendant had no free choice, but was driven to adopt a certain course, whether he liked it or not. A defendant who pleaded guilty following advice of the kind given, albeit he did so unhappily and regretfully, could not be said to have lost his power to make a voluntary and deliberate choice. It would be a serious matter if it were accepted that when counsel gave strong advice indicating the prospect of being found guilty and the alternative of pleading guilty it could be said that the plea was forced on the defendant. It was a question of fact in every case.

The conviction appeal

[10] In the circumstances we have described, particularly the appellant’s statement to the police, it is unsurprising that the appellant’s counsel advised him to plead guilty. Further, we are left in no doubt that, when the appellant pleaded guilty to the charges, he did so, if reluctantly, as a voluntary and deliberate choice after receiving appropriate advice from his counsel. There are present no elements of threats or the like that could convert what may otherwise appear to be a normal plea into no plea at all. Finally, we are satisfied that the plea of guilty and the resulting conviction has not resulted in an injustice. Accordingly, the appeal against conviction is dismissed.

The sentence appeal

[11] Having escaped from custody with two others, the appellant spent the night at a friend's house. The next morning, under the appellant’s directions, two others recovered a .22 rifle with ammunition from a hiding place. Later that night, the appellant and the co-offender drove around Nuku'alofa, as the statement of facts put it, looking for a Chinese house to rob. They checked one Chinese house but found it to be guarded by a security officer. They went to the house occupied by the victims. They broke in, the co-offender holding the rifle while the appellant had a knife. They called for money. The appellant held the knife to the neck of the woman victim. As a result, she produced cash of about $1,500. The appellant and the co-offender left with the money.

[12] The following terms of imprisonment were imposed on the appellant:

• [a] Escape from lawful detention: 6 months
• [b] Armed robbery: 9 years
• [c] Unlawful imprisonment: 3 years
• [d] Possession of arms and ammunition

without a licence: 2 years

[e] Housebreaking: 3 years

All sentences were concurrent and also concurrent with the sentence the appellant was serving when he escaped.

[13] In considering whether the sentences imposed were excessive, we have had regard to the following factors:

• The offending was serious, two weapons, a loaded rifle and a knife, were involved. It was a deliberately planned robbery. The lives of the victims were threatened. A substantial sum of money was taken.
  
• In 1999 Parliament amended the Criminal Offences Act by adding the offence of armed robbery for which the maximum penalty is a term of imprisonment of 20 years, compared with the offence of robbery for which the maximum penalty is a term of imprisonment of 10 years. It was obviously Parliament's intention that for armed robbery very substantial terms of imprisonment should be imposed.
  
• The appellant was aged 20. His co-offender was aged 16. He was sentenced to the same terms of imprisonment on each count as was the appellant. He has not appealed.
  
• All sentences were concurrent. The offence of escaping from custody was separate and unrelated to the remaining offences. That sentence could properly have been cumulative on the others. On that basis, the sentence for the armed robbery and related offences was 8 1/2 years.
  
• The appellant has previous convictions. That he committed these further offences so soon after the previous ones indicates that the penalties then imposed were not an effective deterrent.
  
• When the appellant was released in error at the end of his previous sentences, when he should have been held under the sentences for these offences, he made no attempt to conceal himself. He was at liberty for two months. His counsel submitted that he behaved well during that time.
  

[14] When all these factors are taken into account, we are satisfied that the sentences imposed were not excessive. The appeal against sentence is dismissed.

Burchett J
Tompkins J
Beaumont J