Rex v Pomale [2011] TOCA 1; AC 10 of 2011 (30 September 2011)

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

APPEAL NO. AC 10 of 2011
CR 155 of 2010

BETWEEN:

REX
Appellant

AND:

SEMISI VE'ETUTU POMALE
Respondent

Coram : Burchett J
Salmon J
Moore J

Counsel : Mr Sisifa for the Appellant
Mr Pouono for the Respondent

Date of hearing : 19 September 2011.
Date of judgment : 30 September 2011.

JUDGMENT OF THE COURT

[1] This Crown appeal (which is not opposed) raises a short point of sentencing law in Tonga.

[2] There is in the Kingdom statutory provision for the suspension of the whole or part of a sentence, but in limited circumstances. To that end, s.24 (3)(a) of the Criminal Offences Act (Cap.18) provides:

"It shall be lawful for the Court when imposing a sentence of imprisonment to suspend the whole or part of such sentence for any period up to 3 years."

[3] The case being one where the principles stated in Misinale v R (1999) [2000] Tonga LR 322, it was accepted, did warrant suspension, Shuster J sentenced the Respondent to 5 years of imprisonment, part to be suspended for 3½ years, so that he was to serve 18 months starting from 1 April 2011. From this, the Crown appeals on the basis that it exceeds the allowable discretion under s.24 because the suspension exceeds 3 years.

[4] The Court considers the Crown's contention is unreasonable. Accordingly, it allows the appeal; sets aside the sentence imposed and order made below, and substitutes the following.

In place of the sentence and order of the Supreme Court:

(i) The Respondent is sentenced to 4½ years imprisonment in total;
(ii) The Respondent is to serve 18 months imprisonment starting from 1 April 2011;
(iii) The remaining 3 years imprisonment is suspended for 3 years.

Burchett J
Salmon J
Moore J
Scott J