Salt v Rex [2010] TOCA 14; AC 30 of 2009 (14 July 2010)

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

NO. AC 30 of 2009

BETWEEN:

SAMISONI SALT
Appellant

AND:

REX
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr. Fifita for the Appellant
Mr. Sisifa for the Respondent

Date of Hearing: 6 July 2010
Date of Judgment: 14 July 2010

JUDGMENT OF THE COURT

[1] This is an appeal, filed on 28 October 2009, from a custodial sentence of 2 years sonment imposed by Shby Shuster J of the Supreme Court of Tonga on 19 September 2009. The appellant and Mr Viliami 'Otutoa, a fellow employee, admitted to the theft of 7 cartons of Winfield Blue cigarettes worth $17,640.00 and 15 cartons of Pall Mall Blue cigarettes worth $18,750.00 on or about 9 January 2009 from a bonded container belonging to the British American Tobacco Company (BATC) at Queen Salote Wharf, Nuku'alofa.

BRIEF FACTS AND BACKGROUND

[2] The appellant is a 35 year old married man with 5 children who started working at the Queen Salote Wharf for the Port Authority in 2002 as a tally clerk and was promoted to assistant manifest supervisor in 2007. On 31 December 2008 the BATC tobacco container arrived from abroad at the Queen Salote Wharf. The complainant, Mr Manoa Tu'itupou, went to release the bonded container on 14 January 2009 when he noticed that some of the contents were missing. He lodged a complaint with the police who commenced an investigation, together with the HM customs and Port officials. The appellant and Mr Viliami 'Otutoa were arrested. In the police interview the accused admitted stealing the cigarettes and selling 6 cartons of Winfield Blue to shop owners, Shen Fu Fen and Qian Xi Yun and giving 15 cartons of Pall Mall Blues to Mr Solomone Payne for safe keeping. Subsequently more of the cigarettes were sold and the rest of the tobacco was kept at Mr Solomone Payne's home from where it was later stolen.

GROUNDS OF APPEAL

[3] The point raised by the appellant is a narrow one. It is simply that the trial judge erred in imposing a custodial sentence of 2 years imprisonment without suspending any part of it. It is contended the sentence is excessive in the circumstances of the case. The appellant contends he was a "first property offender" and the offence was not premeditated.

DISPOSITION OF APPEAL

[4] The starting point in determining this appeal is a concession by the Crown that the sentence was excessive. In helpful written submissions, the Crown detailed a number of cases which were broadly similar and provided comparable sentences. It is unnecessary to set out the particulars of each of the cases and it is sufficient to note them (though we set out in brackets in a somewhat simplified way, the offence, the head sentence and the period of the sentence which was suspended). The cases were: R v Misinale (Court of Appeal, CA 13/99 - 23 July 1999 (embezzlement while an employee, 3 years, 2 years), R v Tangata’iloa Cr 99/00 (embezzlement while an employee, 2 years, 6 months), Wall v R [2002ga LR 338 (embezembezzlement, 5 years and 12 months) and R v Koniseti [2004] Tonga LR 32 (theft of property as a servant, 18 months and 6 months). The position of the Crown in this appeal was that while the underlying sentence of two years was appropriatme some of the sentence should have been suspended. The point in issue in the appeal ultimately became what period of the sentence should be suspended.

[5] The appellant argued that 12 months of the two years should be suspended. The Crown did not identify any particular period.

[6] The principles which govern the suspension of part of a sentence were discussed by the Court of Appeal in Mo’unga v Rex [1998] Tonga LR 154. The Court of Appeal noted that s24(3) of the Criminal Offences Act Cap 18 conferred a power to suspend the whole or part of a sentence for any period up to three years but provided no criteria concerning the exercise of the power. The Court also noted that a similar position had existed in New Zealand and the Court of Appeal in that country had addressed the question in R v Peterson [1994] 2 NZLR 533. That Court had suggested a number of situations where the suspension of a sentence may be appropriate. The Court of Appeal of Tonga adopted the same approach in Mo’unga v Rex.

[7] The situations where suspension of a sentence may be appropriate are (though the list is not exhaustive):

(i) Where the offender is young, has a previous good record, or has had a long period free of criminal activity.

(ii) Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.

(iii) Where, despite the gravity of the offence, there is some

(iv) diminution of culpability through lack of pre-meditation, the presence of provocation, or coercion by a co-offender.

(v) Where there has been cooperation with the authorities.

[8] Plainly this mechanism of suspending the whole or part of the sentence is intended to operate, in many instances, where there is some prospect and perhaps a high prospect of the offender being rehabilitated.

[9] In the present case there is, we accept, a real prospect that if part of the sentence is suspended it will have a strong deterrent effect on the appellant. It is likely that this deterrent effect will operate during a period when the appellant will be endeavouring to rehabilitate himself. Both the incentives for him to rehabilitate himself and the opportunities to do so are reasonably obvious. The appellant is comparatively young. He is married with five children. It appears from a letter from the members of the family which was in evidence, that they are a loving and supportive family. Also in evidence was a letter from his local priest indicating the appellant was an active member of the local Catholic Church. A Probation Report in evidence before the primary judge recommended the suspension of the whole of the sentence being imposed conditional upon the appellant undertaking 120 hours of community service works and completing the alcohol and drug awareness course conducted by the Salvation Army. There was some evidence that such proceeds of the sale of stolen cigarettes as may have come the appellant's way ($5000), was spent on alcohol for him and his friends. The evidence, in a number of ways, points to the fact that the appellant has a drinking problem.

[10] In addition, the Crown appears to accept the appellant's account of how the theft came about. That is, the theft was plotted by Mr Viliami 'Otutoa, a forklift driver and fellow employee at the Port Authority, and the appellant joined in the criminal exercise without premeditation at the time it was taking place. However it must be recognized that the offence involved stealing by a person in a position of authority. It is a serious offence. The fact that it was stealing by someone in a position of authority warrants, in the circumstances of this case, a sentence which actually involves incarceration for more than a nominal period.

[11] Given the concession made by the Crown noted earlier in these reasons and having regard to all the circumstances, we propose to allow the appeal and vary the sentence made by the primary judge. The sentence of two years will remain. However we are prepared to order that nine months of that sentence be suspended for a period of two years from today's date. We also propose to order that the suspension order be conditional on the appellant completing the alcohol and drug awareness course conducted by the Salvation Army.

Burchett J
Salmon J
Moore J