Tafolo v Rex [2008] TOCA 4; AC 05-2008 (25 July 2008)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 05 of 2008

BETWEEN:

TAUFA MOTULALO TAFOLO
Appellant

AND:

REX
Respondent

Coram : Burchett J
Salmon J
Moore J

Counsel: Mr Kaufusi for the Appellant
Mr Kefu for the Respondent

Date of hearing : 22 July 2008
Date of judgment : 25 July 2008

JUDGMENT OF THE COURT

[1] This is an appeal by Taufa Motulalo Tafolo against conviction and sentence and a cross appeal by the Crown against sentence. The charge against the appellant arose out of the events and riots that occurred on the 16th November 2006. The appellant was found guilty of one charge of riotous assembly. The evidence against her was given by a Constable Mataele. He was able to identify the appellant on the day in question because they had been acquainted for some time and attended the same church. He said he saw the appellant at the Treasury building standing close to the building on the side facing the Palace. He said he saw her feeling in the grass, that she picked something up and made a throwing movement with her hand. She was facing the Treasury when he saw her. He did not see what she picked up, he did not give evidence of seeing anything leave her hand or whatever she threw striking anything, and he agreed that he did not see in which direction whatever she picked up was travelling. However he was clear that she was facing the Treasury when she made the throwing movement.

[2] In her evidence the appellant said that she was with some friends and that when they heard the Treasury being smashed they crossed over to the footpath along Pangaisi’i and walked along the footpath to be close to what was happening. She said that when they stopped to watch they moved over under the Toa trees. She said it was the Toa tree right at the fountain. She denied picking up anything from the ground, said she had no recollection of making a throwing movement and denied throwing anything at the Treasury. The friends she was with were called to support her evidence. They said they did not see her throw anything.

[3] In convicting the appellant the jury obviously preferred the evidence of the Police Constable as they were entitled to do.

[4] In his sentencing remarks the Judge referred to the Constable as having said he saw the Appellant throw something at the Treasury. This is strictly speaking not correct however it is certainly an obvious inference from the evidence. The Judge accepted that the appellant’s offending was not as serious as others’. He noted that she did not dispute the finding of the jury and that she was genuinely remorseful. He sentenced her to 12 months imprisonment the last 6 months to be suspended for 2 years from release. The appellant served one month in prison before being released pending the determination of her appeal.

[5] As noted the appeal is against conviction and sentence. As to the conviction appeal Mr Kaufusi submitted that the appellant was not part of a riotous assembly. This submission is not supported by the evidence. The Constable’s evidence is that there were people in the same vicinity as the appellant who were throwing things at the Treasury. We are satisfied that there was evidence on which the jury could properly convict the appellant and we dismiss the appeal against conviction.

[6] On the appeal against sentence Mr Kaufusi submitted that the sentence imposed by the Judge was excessive and that the appellant should have had the whole of her sentence suspended. He compared her sentence with a sentence of 9 months imprisonment, the whole of which was suspended, imposed on Kumifonua Folau who was charged with a number of offences relating to the riots but was acquitted on all but a charge of housebreaking. He noted that charge carried a maximum penalty of 10 years imprisonment compared with 4 years for riotous assembly. He pointed out that the appellant spent a month in prison prior to the appeal being lodged. He submitted that in those circumstances a 6 months suspended sentence should be substituted for the sentence imposed by the Judge.

[7] Mr Kefu in support of the Crown’s cross appeal pointed out that the maximum penalty for riotous assembly was 4 years imprisonment not 2 years as the Judge stated in his sentencing remarks. He submitted that taking that into account the sentence imposed by the Judge was appropriate. In response to questions from the Bench he accepted that there was no evidence that the appellant was part of a riotous group prior to crossing the road to the Treasury. He also accepted that the group she joined near the Treasury had formed earlier and had been involved in rioting elsewhere in Nuku’alofa. He also acknowledged that if the appellant had committed her act in circumstances not associated with the riots she would almost certainly have been convicted and discharged without penalty. In relation to Mr Kaufusi’s reliance on the penalty imposed on Folau for his housebreaking conviction he pointed out that Folau had been acquitted of a charge of being part of the riotous assembly so that his penalty fell to be considered as an ordinary property offence.

[8] A combination of factors have led us to conclude that the sentence imposed on the Appellant was manifestly excessive. Before mentioning these factors we make it clear that we endorse the general remarks which the Chief Justice made at the commencement of his sentencing notes for a group of people of whom the appellant was one. The Judge referred to the drunken rampage which resulted in looting, burning and destroying much of the centre of Nuku’alofa. He noted that the crowd was uncontrollable and that damage ran into millions of pa’anga. He noted the lives which were lost. He referred to the decision of the English Court of Criminal Appeal in R v Najeeb [2003] EWCA Criminal 194. That case involved a riot in England in which Police were stoned, cars set alight and many buildings severely damaged. The Court said that significant sentences were appropriate for major participants and that in cases of serious riots deterrent sentences were required so that good character and personal mitigation factors would carry comparatively little weight. The Court also noted the importance of looking at (inter alia) the specific acts of individual defendants.

[9] Coming back to this case we note the following factors in relation to the appellant:

1. At the time of the offending she was 25 years of age and a first offender.

2. On the basis of the evidence given at trial her association with the riotous assembly was short lived and appears to have been spontaneous.

3. Her observed actions were of a very minor nature.

4. Her brief involvement was at an early stage of the riots. There is nothing to suggest that she was part of the extensive destruction that later took place.
   

5. The sentencing practice in countries such as England, New Zealand and Australia supports non custodial sentences for first offenders unless their offending is of a very serious nature. In fact in the United Kingdom the Powers of Criminal Courts Act 1973 provides that except for an offence the sentence of which is fixed by law, a Court may not pass a sentence of imprisonment on a person of or over 21 years of age on whom such a sentence has not previously been passed by a Court in the United Kingdom unless it is of the opinion that no other method of dealing with him is appropriate. We see no reason why the general approach adopted in these Commonwealth countries should not also be adopted in Tonga.

[10] For the above reasons we consider that a custodial sentence was inappropriate in this case. A suspended sentence combined with a period of community service would have been adequate to recognise the context of the offending. Because the appellant has served a month in prison we consider that there is no need to impose community service. The appeal against sentence is allowed. The sentence imposed in the Supreme Court is vacated and in its place the appellant is sentenced to 6 months imprisonment the whole of which is suspended for 2 years from the date of sentencing.

Burchett J
Salmon J
Moore J