Pouvalu v Rex [2009] TOCA 4; AC 04-2009 (10 July 2009)

IN THE COURT OF APPEAL OF TONGA
NUKU’ALOFA REGISTRY

AC 04 of 2009

BETWEEN:

FEKITA POUVALU
Appellant

AND:

REX
Respondent

Coram: Ford P
Burchett J
Moore J

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

Date of hearing: 6 July 2009.
Date of judgment: 10 July 2009.

JUDGMENT OF THE COURT

Introduction

[1] On 29 July 2008, after a judge alone trial, Schuster J. found the appellant guilty on one count of fraudulent conversion of property and one count of interference with the course of justice. The case related to the unlawful conversion of a motor vehicle. The appellant was sentenced on 16 December 2008. The sentencing order stated:

"1. The accused is to pay 1,000 pa'anga into court as compensation within seven days from today, then a further 3,000 pa'anga by 27 July 2009.

2. The accused is to bound over to come up for judgment on 27 July 2009 in the sum of 1,000 pa'anga. If he does not pay the full amount of 4,000 pa'anga by 27 July, 2009."

[2] The appellant has appealed against sentence only. He managed to pay the initial $1000 but he claims that the total compensation award of $4000 was excessive and had no foundation at law.

The Facts

[3] The appellant is an engineer by trade and carries out vehicle repairs from his residence. The motor vehicle in question was a van belonging to Kimipu 'Inoke. The primary judge cited in full the following voluntary statement which the appellant made to the police:

"I state, in the month of August or September 2006 the van of Kimpu 'Inoke of Tofoa was given to me to repair. Before the van was given to me it was with Uate Vea whom is a fellow engineer. I talked with Kimpu and said I could repair the van. The van of Kimpu was towed to my residence. After two days Kimpu arrived and said he wanted the engine to be replaced. I told him to go and get a battery to start the van, he went and got a battery. It turns out it had no starter and Kimpu knew this. We then did his wishes and went and got $500 the value of the engine it was bought from Patangata from Kotini. I replaced that engine into the van but still had other parts to complete because the parts of the engine that were bought was only the head and bolt. That's why it was cheap. Up to this day I have not taken it to Kimpu. Right now it's with Mone from Ha'amoko. I took it to him. Kimpu did not know about this because he came and we talked. I told him there is an auction of the Red Cross they have a red van like his. We went and saw the van and he told me I can have his whilst I gave him this one. Then the individual Mone came and his van was almost the same as Kimpu's so I told him to go with Kimpu's van whilst he brings his in replacement. I'll bring the van of the Red Cross for Kimpu. One went with Kimpu's van and towed his van to my place. After three weeks Kimpu came and asked me about his van. I told him everything and we went and saw the van. Kimpu then returned with his wife Kataline and they asked where the van is? We went to Mone and we talked and came to the agreement that Mone will finish repairing it, we all agreed to this. I told Kimpu not to pay me but give the money to Mone. Hence I wish to go and give Kimpu his van because I don't want to go to court with him because his wife is my 'eiki maama (high-ranking).

[4] We were told from the Bar that the appellant had paid $500 for the replacement engine but Kimpu had reimbursed him for that amount. The appellant claims that he has never been paid for his costs and expenses in obtaining and installing the replacement engine. Subsequently, the appellant exchanged the vehicle with Mone for another vehicle. Once Kimpu became aware of the exchange he approached Mone and Mone offered him $500 for his (Kimpu's) vehicle which Kimpu accepted The van was sold to Mone and Mone paid Kimpu $500 for the purchase of the van. Counsel were in agreement on these matters.

Discussion

[5] The thrust of the appellant's submissions before us was that the trial judge erred in law in making a compensation order for $4000 when that figure bore no relationship to any figures given in evidence or otherwise mentioned in the course of the trial. He also contends that the judge should have made some inquiries about the appellant's means before making a compensation order.

[6] A compensation order is provided for in section 25 of the Criminal Offences Act (Cap 18). The relevant provisions are as follows:

"25. (1) Any person who is tried and convicted in the Supreme Court of an offence may be adjudged by the Court to make compensation to any person injured or suffering loss by his offence.

(2) . . . . .

(3) Any such compensation may be either in addition to or in substitution for any other punishment and in default of payment thereof the convicted person is liable to imprisonment for any period not exceeding 12 months."

[7] Counsel for the respondent conceded that the only evidence in the case touching upon the valuation of the van in question came in the form of a question from the police interviewing officer at the end of his interview with the appellant. The question was:

"42. Kimpu's van is a minibus van grey coloured with the licensed plate L5393 when it was given to you its value was between $2000 -- $3000. When you gave it to Mone did you replace anything?

A) No, I did not replace anything other than installing a new engine."

[8] Prior to the hearing we sought affidavit evidence from the appellant as to his means. In his affidavit filed on 11 June 2009 the appellant said that he and his wife have four children including a foster child. He explained that with the downturn in the economy he is struggling to maintain his family and pay a loan which they have with the Tongan Development Bank. He now earns an average of $200 a week and his wife who is also employed earns $400 per fortnight.

[9] It is clear from the wording of section 25 that any order for compensation must be related to the injury or loss suffered by the victim of the crime. The sentencing judge cannot simply just "pluck a figure out of the air" as the appellant claims he did in the present case. The figures mentioned by the police officer of $2000 - $3000 were not responded to by the appellant presumably because they were not presented to him in the form of a question but they can hardly be described as reliable evidence of the value of the vehicle. The evidence is silent as to why it was that Kimpu accepted a figure of only $500 for the van from Mone. If the complainant was willing to accept $500, this strongly suggests that the market value (and thus the sum recoverable in a civil claim) for the vehicle was in the area of $500 (or at least should have put the judge on notice that this might be the case).

[10] Even if reliance could be placed on the police officer's figures, the $500 Kimpu received from Mone and the $1000 compensation he received from the appellant coupled with the fact that Kimpu had never paid the appellant for acquiring and installing the new motor all adds up to an amount close to the bottom range figure mentioned by the police officer.

[11] The criminal courts are not to be used as a venue for the resolution of what are, in essence, civil disputes, and victims are not entitled to windfall payments in the guise of compensation orders. The aim of compensation orders is to compensate for actual loss, not to punish the offender - the objective of punishment is to be met by imprisonment, fines and the like.

[12] The current English position in relation to compensation orders is summarised in the latest edition of Archbold Criminal Pleading Evidence & Practice (2009 Ed):

"Determination of Amount of Loss

5-418

In R. v. Vivian, 68 Cr.App.R.53, the Court of Appeal stated that "no order for compensation should be made unless the sum claimed by way of compensation is either agreed or proved." . . . In R. v. Horsham JJ., ex p. Richards, 82 Cr.App.R. 254, DC, Neill L.J. said that the court had no jurisdiction to make a compensation order without receiving any evidence where there were real issues raised as to whether the claimants had suffered any, and if so what, loss. . . Where there were plain issues as to liability, it was for the prosecution to place evidence before the court. Plainly, any award should not exceed the sum that would be awarded by a court in a civil proceedings: R v Flinton [2008] EWCA Crim 2162; [2008] 1 Cr.App.R.(S.) 96, CA. The principle that a compensation order should not be made unless the fact that a loss has been incurred, and the extent of the loss, are either proved or admitted, was applied in R v Watson, 12 Cr.App.R.(S.) 508, CA; and R v Clelland, ibid., at 697, CA."

5-419

"Although it is open to the court to hear evidence in order to determine questions as to the fact or the amount of loss, the Court of Appeal has discouraged criminal courts from embarking on complicated investigations: see R v Kneeshaw, 58 Cr.App.R. 439."

[13] The other aspect of a compensation order is the requirement for the sentencing judge to make appropriate inquiries as to the means of the offender. In R v Oddy [1974] 2 All ER 666, 670, Lawton LJ delivering the judgment of the English Court of Appeal, Criminal Division, said:

"The means of the accused are relevant for a number of reasons. The courts have got to be realistic. It is no good courts making compensation orders which could never be discharged by an accused person, and equally it is no good making compensation orders which, to use counsel's phrase, are likely to be counter-productive in the sense that they may result in the accused committing further offences to discharge an order."

[14] That principle is reaffirmed in the latest edition of Archibald, 5-423:

"A compensation order should not be made unless it is "realistic" in the sense that the court is satisfied that the offender either has the means available, or will have the means to pay the compensation within a reasonable time. . . . Compensation orders have frequently been set aside for lack of sufficient inquiry as to means: see R v Phillips, 10 Cr.App.R.(S) 419, CA, in which it was said that problems could be avoided if the sentencing judge indicated a provisional amount by way of compensation: he was then fully entitled to turn to defence counsel to ask him to provide information about the means of the defendant. If the defendant was obdurate and insisted on keeping silent, that might in some cases afford a basis for the court to draw inferences as to his financial position. Where there is material before the court which suggests that the offender is in possession of substantial resources, a compensation order may properly be made even though no precise evidence of the offender's means is available to the court: see R v Bolden, 9 Cr.App.R.(S.) 83, CA, and R v Owen, 12 Cr.App.R(S.) 561, CA."

[15] Although these principles were stated in terms of the English legislation relating to compensation orders, we think that they are sound and are equally applicable to the law in Tonga. It is important, however, that a sentencing judge should keep in mind the real value of money in the Kingdom and the reality which is that the majority of offenders appearing before the court have no significant assets and meagre means of support. Compensation orders, therefore, should be made only in those rare cases when the judge is satisfied that the offender has the means to meet the same.

Conclusion

[16] For the reasons stated, we agree with the appellant that the compensation order in the present case was not based on recognised sound legal principles. The appeal is allowed. The sentence passed at trial is quashed and in substitution therefore the compensation order is reduced to the $1000 already paid by the appellant.

Ford P
Burchett J
Moore J