Losalu v R [2022] TOCA 24; AC 21 of 2022 (17 October 2022)

IN THE COURT OF APPEAL
CRIMINAL JURISDICTION AC 21 of 2022
NUKU’ALOFA REGISTRY

AC 21 of 2022
(CR 73, 74, 75 of 2022)

[1] HENELI LOSALU
[2] ‘AKAPEI FA
[3] SEMISI MOEAKI
-v-
REX

Application for leave to appeal against sentences
RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
To: Mr S. Tu'utafaiva for the Applicants
Mr J. Lutui DPP for the Respondent
Sentence: 14 September 2022
Application for leave: 4 October 2022
Ruling: 17 October 2022

Application

1. This is an application for leave to appeal against the applicants’ sentences.

Background

2. On 24 August 2022, the applicants pleaded guilty to causing serious bodily harm. After a protracted group fight stemming from inter college rivalry, the applicants surrounded the complainant and pelted him with rocks, breaking his jaw which required surgery.
3. On 5 September 2022, the Crown filed its submissions on sentence. On 7 September 2022, pre-sentence reports were filed. On 9 September 2022, Mrs Vaihu filed joint submissions on the applicants’ behalf.
4. On 14 September 2022, Cooper J sentenced Losalu to two years imprisonment and Fa and Moeaki to one year and nine months imprisonment. The final 12 months of the sentences were suspended for two years on conditions.
5. On 4 October 2022, Mr Tu'utafaiva filed an ex parte application for leave to appeal against sentence. The application is supported by affidavits from each of the applicants. The grounds for the application for leave to appeal may be summarised as the sentences should have been fully suspended because:
   • (a) the applicants are first offenders;
   • (b) they were still young;
   • (c) they cooperated with the authorities; and
   • (d) they apologised to the complainant who accepted their apologies.

Consideration

6. Pursuant to Order 10 rule 1(3) of the Court of Appeal Rules, I have proceeded to determine this matter without a hearing.
7. Leave to appeal will only be granted where the court considers that the appeal would have a real prospect of success or there is some other compelling reason for the appeal to be heard: Laimani v R [2021] TOCA 9.
8. In his sentencing remarks, the judge observed and gave credit for the applicants' ages, their early guilty pleas and good previous records and their cooperation with the police. His Honour also weighed against that the aggravating features including the use of a rock as a weapon, a group attack by older boys against the younger victim, that the attack was premeditated and occurred at night and the seriousness of the injury. He also considered a number of comparable sentences as submitted by the Crown and others. Mrs Vaihu’s submissions did not contain any comparable sentences but merely identified the above factors which the judge took into consideration, and which now have been repeated on this application for leave to appeal. His Honour described the resulting sentence as reflecting “the gravity of the offending and the need for its punishment as well as deterring and denouncing it”.
9. Where the considerations for suspension in Mo’unga^[1] are met (which may be assumed here), it does not automatically follow that a sentence must or should be fully suspended. Those considerations are not the only factors. Also relevant may be the seriousness of the offending, the need for an effective deterrence, the effect on the complainant, and the personal circumstances of the offender or those dependent on him or her: R v Motulalo [2000] Tonga LR 311; Vake [2012] TOCA 7, referring to Misinale [1999] TOCA 12.
10. It has long been held in Tonga that:^[2]
    • (a) anyone who commits an offence of violence against another person runs a serious risk of immediate imprisonment;
    • (b) that will apply even to a first-time offender; and
    • (c) the likelihood of going to prison becomes a virtual certainty when a weapon is used.
11. Further, the need for deterrent sentences for this type of offending has been repeatedly acknowledged as emphasised by Cato J in Rex v Siale [2015] TOSC 13 at [4].
12. The application does not identify any error of principle on the part of the sentencing judge nor is it suggested that his Honour wrongly assessed a relevant circumstance, took into account irrelevant factors, failed to take into account relevant factors, or that he imposed a sentence that is inconsistent with sentences the Court has imposed for like offending. The final sentences and decision to only partially suspend them was reached after consideration of all relevant factors. Even though his Honour did not make explicit reference to the above principles, it is clear that his assessment of those factors and exercise of discretion gave effect to those principles.

Result

13. The application for leave to appeal against sentences does not demonstrate real prospects and is therefore refused.

NUKU’ALOFA	M. H. Whitten KC LCJ
17 October 2022	PRESIDENT

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^[1] Mo’unga v R [1998] Tonga LR 154 at 157.
^[2] E.g. Hu’ahulu v Police [1994] Tonga LR 93; R v Luka [2021] TOSC 46.