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Tupa v R [2021] TOCA 8; AC 1 of 2021 (13 July 2021)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


AC 1 of 2021

(CR 76 & 105 of 2017)

BETWEEN:


PENISIMANI TUPA

Applicant (proposed Appellant)


-v-


REX

Respondent


Application for leave to appeal out of time against sentence


RULING


BEFORE: WHITTEN P
To: Mr S. Fili for the Applicant
Mr J. Lutui DPP for the Respondent
Sentence: 8 December 2017
Application: 2 July 2021
Ruling: 13 July 2021


  1. In proceeding CR 76/17, the applicant pleaded guilty upon arraignment to three counts of serious housebreaking and three counts of theft. The offending occurred on 13 October 2015. The stolen goods comprised Tongan mats to the value of $8,400, $2,200 and $1,800 respectively. According to the summary of facts, the applicant pawned the goods stolen from the residences of the second and third complainants to buy methamphetamines.
  2. In proceeding CR 105/17, the applicant pleaded guilty to possession of 0.156 g of methamphetamine whilst he was in police custody and being taken to Vaiola Hospital. That offending occurred on 28 December 2017.
  3. On 8 December 2017, Cato J imposed sentences in both proceedings.
  4. In his sentencing remarks, his Honour placed emphasis on the applicant’s extensive criminal history. It began with a conviction in 2008 for unlawful entry and, in the same year, seven counts of housebreaking and theft for which the applicant was given a community-based sentence. He was further convicted in the same year of another five counts respectively of housebreaking and theft which resulted in a sentence of 5 years imprisonment. In 2012, he was sentenced to a further 3 years for housebreaking, the final year being suspended. In 2016, he was convicted of negligent driving resulting in injury and sentenced to 3 years imprisonment with the final year of that sentence suspended. Later, in 2016, he was sentenced to 1 year imprisonment for escaping from lawful custody. His Honour described the applicant as a recidivist house breaker who had been treated leniently in the past.
  5. On that basis, the judge set a starting point for the head housebreaking count (for which the maximum sentence is 10 years imprisonment) of 6 years imprisonment. He reduced that starting point by 12 months for the applicant’s early guilty plea resulting in a sentence of 5 years imprisonment. For the other two counts of housebreaking, he was sentenced to 3 years imprisonment to be served concurrently with the sentence on count 1. In relation to the thefts (the maximum sentence for which is 7 years imprisonment), and again after taking into account the applicant's guilty plea, the judge imposed a sentence of 3½ years imprisonment for the highest value count. Twelve months of that sentence was ordered to be served cumulatively with the sentence on count 1 making an overall sentence of 6 years imprisonment. For the theft counts of lesser value, the applicant was sentenced to 18 months imprisonment to be served concurrently with count 1.
  6. In relation to the possession of methamphetamines, after again taking into account the applicant's guilty plea, the judge imposed a sentence of 9 months imprisonment. That sentence was added to the head sentence in CR 76/17 making an overall sentence of 6 years and 9 months imprisonment for both indictments.
  7. In relation to suspension, the judge noted [10] the applicant's previous sentences involving partial suspension and that the housebreaking offences took place in 2015. Therefore, his Honour opined that the applicant had learned nothing and therefore could not expect further leniency by any further suspensions of sentence.
  8. The judge ordered [11] that the sentences commence when the applicant completed his then current period of imprisonment for negligent driving and escaping from lawful custody (which was expected in 2020). His Honour added:
"I do not consider applying the totality principle that the sentences imposed here cumulative upon his existing sentences of imprisonment is excessive. It is, in my view, an appropriate response to his recidivism and his contumelious disregard of the law".
  1. The judge recorded [12] the Prosecution's advice that the applicant was not entitled to have the sentences backdated because his remand in custody for the instant offending coincided with the terms of imprisonment he was serving for other offending.
  2. On 2 July 2021, the applicant, by his lawyer, Mr Fili, filed an ex parte application for leave to appeal against his sentences out of time.
  3. The grounds of the application may be summarised as:
  4. By his affidavit in support sworn on 15 December 2020, the applicant deposed to the above factual grounds and says further, in summary, that:
  5. Pursuant to ss 16(c) and 20(1) of the Court of Appeal Act and Order 10 rule 1(1) of the Court of Appeal Rules, the applicant was required to apply to this Court for leave to appeal within 42 days of his sentence. The application is therefore approximately 2 ½ years late.
  6. The basic principle in deciding an application for leave to appeal out of time is that it is entirely in the discretion of the Court, which discretion must be exercised judicially: AJ & E Ltd v FC Nichols (Wholesales) Ltd [2006] TOCA 1.[1] An extension of time will not be granted as a matter of course; the court will require substantial reasons to be advanced before such an extension will be granted: Latu v Rex [2011] TOCA 19.[2]
  7. The reason for delay advanced in the instant case is that the applicant could not afford a lawyer to appear for him upon his sentencing. That, of itself, is not a valid basis for an extension of time within which to appeal. The real issue is whether by reason of a lack of legal representation, or in any event, the sentencing judge’s discretion miscarried in some way whether as a matter of principle or approach, such as failing to take into account relevant considerations or taking into account irrelevant considerations, which has resulted in a sentence which is manifestly excessive.
  8. The manner in which the application has been presented, even when considering the grounds in conjunction with the additional complaints raised in the applicant's affidavit, reflects a misconception about the nature of the application and the requirements for its success.
  9. The applicant’s ground based on him not having a lawyer at his original sentencing assumes for its success that if he had been legally represented at that time, the resulting sentences would have been somehow different. That begs the rhetorical question: what additional or different submissions or material might have been placed before the sentencing judge by a lawyer at that time? That, of course, is precisely what the applicant's present counsel would undoubtably have turned his mind to when preparing this application.
  10. However, and in that regard, to simply state in the application and supporting affidavit, that if leave to appeal out of time is granted, the applicant through his counsel will make further submissions, is unhelpful, to say the least, and ignores the fact that unless all relevant submissions are placed before the court, even in a summary manner, at the time of, and for the purposes of deciding, this application, leave may not be granted. It is not possible therefore to assess what "further arguments" might be contemplated or whether they might have any bearing on the applicant's prospects of success on any appeal, and in turn, whether this application ought be granted.
  11. I turn then to the complaints that have been raised.
  12. That the applicant was remorseful was implicit in the applicant’s early guilty pleas which were taken into account by the sentencing judge.
  13. That the applicant co-operated with police is implicit in his early guilty pleas. A separate submission to that effect would not have had any additional bearing on the sentence.
  14. The reference to the applicant ‘needing letters of support’ is hollow for three reasons. Firstly, there is no indication in the material on this application that such letters of support were available at the time of his sentencing had any lawyer acting for him sought to present them. Secondly, there is no evidence that such letters are available now. Presumably, they are not available as they were not exhibited to the applicant's affidavit in support. Thirdly, there is no evidence as to whether the content of any such letters would likely have had, or may have, any material effect on the sentences imposed.
  15. The reference to the applicant also needing "probation reports" is belied by the fact that at paragraph 4 of the sentencing remarks, the judge referred to the applicant’s probation report and recited certain information from it. A copy of the presentence report is one of the most recent documents on the court file. The sentencing judge evidently had regard to that report.
  16. The complaints about the time served by the applicant on remand not being disclosed by the Prosecutor, or taken into account by the judge, are belied by paragraph 12 of the sentencing remarks in which his Honour recited the information from the Prosecutor to effect that the period of remand for the CR 76/17 offences coincided with terms of imprisonment the applicant was serving for other matters. It also appears from the Court’s records that the offending in CR 76/17 occurred during the period of suspension for the sentence in CR 132/12, imposed on 6 November 2012, of 3 years imprisonment with the last suspended.
  17. Further, the applicant’s ‘recollection’ that he was remanded in custody on the CR 76/17 charges between August 2015 and July 2016 is doubtful and does not accord with the court records. Firstly, the offending occurred on 13 October 2015. Secondly, the police record of interview is dated 7 December 2015. Thirdly, the Prosecution’s notice for committal is dated 3 October 2016 (by which time the Applicant was serving his sentence for the negligent driving conviction). Fourthly, he was committed to stand trial by the Magistrates Court on 26 June 2017 and remanded in custody on that day. Fifthly, the probation report dated 10 November 2017 records that “despite the fact that there is yet a long time before his release...”.
  18. The judge applied discounts to the starting points for each of the offences in recognition of the applicant’s early guilty pleas. On the head sentence for housebreaking, the discount applied amounted to just under 17%. The applicant here asserts, in effect, that he expected a greater discount. Neither the grounds for the application nor the applicant’s supporting affidavit specify how much greater the discounts for early guilty pleas should have been nor any authority for the proposition that the sentencing judge was required, as a matter of principle, to apply a greater discount.
  19. It is well-established that the correct approach to sentencing involves setting a starting point which reflects the seriousness of the offence including any circumstances of aggravation and then to reduce or discount that starting point to reflect mitigating factors such as an early guilty plea and/or a previous good record. However, there are no rigid rules or formulae by which the quantum of that discount must be calculated. Each case must be considered in light of all its relevant circumstances. In R v Selupe [2021] TOSC 47, the Court observed:
“[27] ...As a general proposition, but not any rigid or inflexible rule, the authorities support an approach whereby an early guilty plea and a clean record may attract a discount in mitigation between a quarter (25%) and a third (33.3%) off. Other circumstances peculiar to each case and offender may inform where within that range the discount may be set. Recognition of the acceptance of responsibility and remorse demonstrated by admission to police and/or a plea of guilty at the earliest opportunity is an important aspect of sentencing. The usual resulting discount also serves as an incentive to other offenders to admit their guilt as a first step towards rehabilitation.”
  1. For instance, a credit of up to 33% was considered appropriate in Foliaki v Rex [2015] TOCA 12. Yet, in Naufahu v R [2018] TOCA 16, a discount of over 30% of the starting point was viewed as ‘extremely generous’ in the circumstances. In 'Alatini v Rex [2018] TOCA 2, a discount of25% for a plea plea not enteret at the earliest opportunity was considered appropriate. At the other end of the spectrum,i>Kaufusi v Rex [2014] TOCA 17, the appellant’s plea came too late to qualify himy him for any significant discount on sentence. More aptly, in Mafi v Rex [2004] TOCA 4 at [31], the Court considered that very different considerations apply where an appellant has extensive previous convictions, which include periods of imprisonment, but which have failed to persuade the offender to abandon his criminal activity. In that case, such a history was considered a significant aggravating factor and did not entitle that appellant to any discount at all for his guilty plea.
  2. It also appears to have been overlooked by the applicant that in light of his criminal history, the starting point set by the sentencing judge for the further housebreaking of 6 years imprisonment could well be regarded as generous.
  3. The applicant’s complaint that the judge failed to consider the totality principle is belied by paragraph 11 of the sentencing remarks as recited in paragraph 8 above. Further, in light of the temporal separation between the offending in CR 76/17, occurring before the negligent driving and escape from custody, and the offending in CR 105/17 occurring thereafter, and the continuum of criminal behaviour throughout, virtually as soon as the applicant was released from prison each time (and in the case of CR 105/17, while he was still serving a sentence), no error of principle has been identified.
  4. In relation to the sentence in CR 105/17, no comparable sentences have been identified by the applicant to support the assertion that the sentence of 9 months imprisonment was outside the range for possession of 0.156 grams of methamphetamine. The Crown’s submissions on sentence referred to R v Manu [2014] TOSC 11; R v Katoni Johansen (CR 70/14); and R v Maka Latu (CR 69/16). By reason of the applicant then serving a sentence for another matter, the Crown recommended a fully suspended sentence. Evidently, the judge did not agree. He was, with respect, correct to do so. The applicant’s criminal history, with previous suspensions, could not rationally have justified any further suspension of any part of the subject sentences. In this application, the applicant does not contend otherwise.
  5. Often a delicate balancing exercise is required. Provided the sentencing Court has applied the relevant sentencing considerations to the circumstances of the offending and the offender, an appellate Court will not intervene unless the final sentence clearly indicates that something has gone wrong. That is usually because it is simply outside the available range: Rex v Tau'alupe [2018] TOCA 3 at [14].
  6. Here, the applicant has not demonstrated an arguable case in respect of any of the complaints in his application and/or affidavit. In all the circumstances, particularly, the applicant’s appalling criminal history, there is no clear indication that, in relation to the subject sentences, something has gone wrong.
  7. For those reason, the application is refused.



NUKU’ALOFA
M. H. Whitten QC LCJ
13 July 2021
PRESIDENT

[1] Citing Bank of Tonga v ‘Alatini & Muti [1990] Tonga LR 153 (CA).
[2] Citing Rigby (17 Cr. App. RLesserr (27 Cr. App. R 69) and R v Hawkins&#1697] 197] 1 Cr. App. R 234, 239 C-D.

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