Filimone v Rex [2004] TOCA 8; CA 02 2004 (30 July 2004)

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

Case No. CR 350-2/2003
Cr. App. 2/2004

BETWEEN:

SEFO FILIMONE
Appellant;

AND:

REX
Respondent.

Coram: Burchett J
Tompkins J
Salmon J

Counsel: Amini Tuivai for appellant
‘Aminiasi Kefu for respondent

Date of Hearing: 19 July 2004
Date of Judgment: 30 July 2004

JUDGMENT OF THE COURT

[1] The appellant was charged with four counts, conspiracy to commit theft, abetment to theft, receiving and obtaining by false pretences. When these charges came before Ford J on 19 September 2003, the appellant, who was unrepresented, pleaded guilty to all four counts. He was convicted and sentenced to 18 months imprisonment on each count, the sentences to be concurrent. In addition he was required to serve the 18 months that had been suspended in respect of his sentence on convictions in November 2001. In the result, the appellant was sentenced to a total of three years imprisonment.

[2] The appellant has appealed against the convictions and the sentences imposed. He seeks to have his pleas of guilty changed to pleas of not guilty on each count and that there be a trial in respect of those counts.

The facts

[3] In March 2003 the appellant proposed to two others that they steal an outboard motor. The next day the appellant drove the two persons to a beach at Sopu. It was low tide and those two walked out to a boat from which they stole an outboard motor valued at about $4500.

[4] They took the outboard motor to the village of Ha’alalo where the appellant hid it in his tax allotment. At that time the appellant was the president of the youth group of the Free Wesleyan Church of Ha’alalo. The appellant approached a person and proposed that he teach the youth group traditional Tongan dances. He suggested that the youth group should buy an outboard motor for him, the appellant, from a person he knew for $1500 as payment for his services.

[5] The appellant then approached the youth group and told them, falsely, that the dancing teacher to whom he had spoken had agreed to teach them dances but that he needed $1500 for his wife to fly to New Zealand to see her ill father. As a consequence, the youth group paid $1500 dollars to that person who then gave the money to the appellant to pay for the outboard motor. However, when that person learned that the outboard motor was stolen, he returned the outboard motor and the youth group reported the theft to the police.

The charges

[6] The indictment contained four counts:

• [i] Count 1, conspiracy to commit theft, charged that he agreed with the other two persons involved to commit the theft of an outboard motor.
• [ii] Count 2, abetment to theft, charged that he abetted the other two persons involved in that he encouraged them to steal the outboard motor and drove them to Sopu for this purpose.
• [iii] Count 3, receiving, charged that he received the outboard motor knowing it to be stolen.
• [iv] Count 4, obtaining by false pretences, charged that he obtained by false pretences for himself $1,500 from the Free Wesleyan Church of Tonga youth group by falsely claiming that the money would be used to pay for the travel expenses of the dance instructor’s wife to New Zealand to see her sick father.
  

The hearing

[7] On 20 August 2003 the appellant was charged in court. He pleaded guilty to each of the charges against him. The transcript of the hearing makes it clear that the appellant understood that his plea of guilty meant that what remained was only the sentencing. He was remanded to 19 September 2003 for sentence. It was also made clear to him that he would be able to see the summary of facts to be filed by the respondent.

[8] The other two persons were also charged. They pleaded not guilty. Following a trial, one co-accused was convicted of conspiracy, theft and receiving, and sentenced to one year imprisonment, suspended for two years, on condition he do 120 hours community work. The other was convicted of conspiracy and theft and received the same sentence except that he was to do 100 hours community work.

[9] At the sentencing of the appellant on 19 September 2003 before Ford J, the appellant first acknowledged previous convictions in November 2001. We refer to these later. He was then invited to address the Court, which he did at some length. In the course of doing so he apologized to the Court for what he had done. He accepted that he had assisted the co-accused, claiming that his only involvement was in transferring the outboard to his vehicle. He pointed out that the outboard motor was returned to the complainant and that he had repaid $1,000 of the money he had received. He also acknowledged that when the three of them came from their villages into the town they had the intention to steal something and after they had taken the outboard motor they tried unsuccessfully to sell it. He said that the $1,500 was needed by somebody else to buy the outboard motor, and that it was not given to him.

[10] In passing sentence, the Judge referred to the maximum penalty of seven years for each of the offences, to the appellant knowing perfectly well that he was involving himself in a criminal enterprise and that, having been imprisoned, he would have known the risk that he took. He referred to the previous convictions, pointing out that, having served six months, he would have been made aware on release that if he committed another offence within two years he would have to serve the remaining 18 months of the sentence. The two years would not expire until 6 May 2004.

[11] The Judge accepted that the appellant was entitled to full credit for having pleaded guilty at the first available opportunity, that he was remorseful and that he was worried about his children when his wife was working on the outer islands. The judge reduced the sentence from the two years he was considering to 18 months because of the guilty pleas. As the appellant would be required to serve the 18 months suspended sentence, the sentence imposed was effectively three years imprisonment.

The previous offending

[12] The list of previous convictions supplied to the Court indicated that on 6 November 2001 the appellant had been convicted of what appeared to be one charge of housebreaking, one charge of receiving and one charge of abetment. This Court asked counsel for the Crown to provide the summary of facts in relation to that offending. This was done. It transpired that the offending was far more serious than the record of previous convictions suggested.

[13] The summary reveals that between 3 July 2000 and 1 August 2000 the appellant and a co-offender went on a spree of housebreaking and theft. There were a total of 12 counts involving the appellant. One of these was a charge of receiving a watch valued at $35. All the others involved the co-offender on eight separate occasions breaking into houses and taking a variety of household goods and contents as well as cash to a total value of $4,812.85. On each occasion the appellant drove the vehicle they were using, while the co-offender broke into the houses. The appellant was therefore a party to the offences committed by his co-offender. The appellant shared in the proceeds of the thefts to the extent of about $3,000

[14] So this was not, as the record of previous convictions indicated, a group of charges arising out of a single event. Rather it showed a pattern of criminal activity extending over a month. It is apparent from what subsequently occurred that the sentences imposed on this earlier occasion were not sufficient to deter the appellant from further criminal activity.

The appeal against conviction

[15] The appellant seeks to have his pleas of guilty to each of the charges set aside and asks for an order that there be a trial on each of the charges.

[16] Adams on Criminal Law paragraph CA385.21 thus describes the general rule to be applied in such a case:

“The general rule is that an appeal from a conviction following a plea of guilty will only be entertained where there is evidence of a miscarriage of justice. Where the defendant fully appreciated the merits of his or her position, and made an informed decision to plead guilty, the conviction cannot be impugned: Udy v Police [1963] NZPoliceLawRp 17; [1964] NZLR 235; R v Stretch [1982] 1 NZLR 225 (CA); R v Ripia [1985] 1 NZLR 122; (1984) 1 CRNZ 145 (CA).”

[17] Adams, in the same paragraph, considers circumstances where an appeal may be brought on the basis of a miscarriage of justice, one of which circumstances being:

“Where the appellant did not appreciate the nature of the charge or did not intend to admit guilt on the charge to which he or she pleaded guilty: R v L Forde [1923] 2 KB 440 (CA); R v Phillips [1982] 1 All ER 245; R v Swain [1986] Crim LR 480. An error as to the punishment which may follow a guilty plea (such as a mistake as to, or ignorance of, a mandatory penalty; or an error as to the view a sentencing judge will take of the admitted offence) does not negate an intentional admission of guilt: see R v Green [1999] SASC 412; (1999) 108 A Crim R 246 and R v Knight [2001] NSWCCA 344; (2001) 123 A Crim R 377 (NSWCCA) at p 382. An accused who is aware of all the evidence going directly to guilt or innocence is not to be allowed to appeal merely because he or she was unaware of evidence which might, but for the plea of guilty, have been used to contest the credibility of prosecution witnesses: R v Togher [2000] EWCA Crim 111; [2001] 1 Cr App R 457 (CA), at p 474. In determining whether the appellant comprehended the charge or was aware of the consequences of pleading guilty the Court may have regard to any prior experience of the criminal justice system which the appellant may possess: R v Roycroft 4/9/02, CA312/01.”

[18] In support of this ground of appeal, counsel for the appellant submitted that a miscarriage of justice occurred resulting from the fact that the appellant was unrepresented at the time that he entered the pleas of guilty. It was his submission that the Government was under an obligation to provide counsel to any person charged with an offence who lacked the means to pay for counsel from his own resources. He submitted that this duty arose under the United Nations Declaration of Human Rights 1948. Tonga became a member of the United Nations in September 1999. It was counsel's submission that as result the Government of Tonga became bound by the Convention, and thereby became bound to supply legal counsel to persons charged with offences who lacked the resources to pay for counsel.

[19] We do not accept this submission. Treaties such as the United Nations Declaration of Human Rights only become part of the domestic law of a country when the legislature of that country enacts a statutory provision to that effect. The Tongan Parliament has not so adopted this Declaration. It's terms, therefore, are not part of the domestic law of Tonga. There is no other statutory provision that places an obligation on the Government to provide legal aid in circumstances such as the present.

[20] Nor do we find evidence of any miscarriage of justice on this or any other basis. It is apparent from the record of what occurred at sentencing that the appellant fully appreciated his position and the effects of his pleas of guilty. He appreciated the nature of the charges, and gave a detailed and frank account of his involvement in the offending that occurred. He was aware not only of the charges but also of the statement of facts relating to them. He made no attempt to deny the substance of the allegation of fraud relating to the $1500.

[21] The appellant was aged 45. In considering whether he appreciated the facts of his guilty pleas, we take into account his previous relatively recent experience of the criminal justice system on the occasion of his earlier convictions.

[22] The appeal against his convictions cannot succeed.

The appeal against sentence

[23] Counsel for the appellant submitted that the sentence imposed was excessive and that the appellant should have been sentenced in the same manner as his co-offenders, that is the sentences should have been suspended for the whole of their terms.

[24] We accept that, in certain circumstances, the theft of an item such this outboard motor can properly be met by a non-custodial sentence. However in the present case there were several aggravating features.

[25] This was a deliberate premeditated planned theft. The item stolen was of significant value. The appellant engaged two other persons to carry out the theft - a method of operation notably similar to that which he had adopted on the occasions of his earlier offending. The offending occurred during the period of the suspended sentence. He must have known that if he were again convicted he was likely to have to serve that suspended term. That was a risk that he was apparently prepared to take. His actions relating to the $1,500 involved a deliberate breach of the trust the youth group had in him.

[26] We have particular regard to the earlier offending. He is not to be punished again for that. But the repeat nature of that offending shows a propensity for engaging in criminal activity that requires a deterrent sentence sufficient to persuade him against similar conduct in the future.

[27] There are some mitigating aspects. He pleaded guilty at the earliest opportunity, a factor that the Judge recognized when assessing the term of imprisonment to be imposed. The sentence will have a serious effect on his family but, as the Judge commented, he should have thought of that before he embarked on his criminal activity. The outboard motor was returned to its owner. $1,000 of the $1,500 obtained by the false pretence were recovered.

[28] Having taken all these factors into account, we are satisfied that the sentence imposed, together with the activation of the suspended sentence, was not excessive. Indeed, the appellant was fortunate that the sentence of obtaining by false pretences was made concurrent with the sentences on the other three counts. The false pretence was two months after the theft of the outboard motor. It could have been regarded as a separate offence, requiring a cumulative sentence.

The result

[29] The appeals against conviction and sentence are both dismissed.

Burchett J
Tompkins J
Salmon J