Halalilo v R [2022] TOCA 25; AC 24 of 2022 (12 December 2022)

IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

AC 24 of 2022

(CR 44 & 45 of 2022)

BETWEEN:
[1] VILIAMI HALALILO

[2] TUKUMOUI HAVEA Applicants

-v-
REX Respondent

Applications for leave to appeal against sentence

Applications for bail pending appeal

RULING

BEFORE: WHITTEN P.
Appearances: Ms A. Kafoa for the Applicants
Mr J. Lutui DPP for the Respondent
Date of hearing: 12 December 2022

Date of Ruling: 12 December 2022

1. The Applicants seek leave to appeal against their sentences in Supreme Court proceedings CR 44 and CR 45 of 2022, and if leave is granted, they seek bail bail pending appeal. The applications are supported by affidavits from the Applicants in which they swear to the grounds stated in the applications.
2. On 28 October 2022, following trial, Cooper J convicted both Applicants of common assault. Both were members of the Police Force. They assaulted the Complainant, Mr Fainu, during the course of taking him into custody in Vava’u. They were originally charged with causing serious bodily harm but His Honour was not satisfied on the evidence in relation to when or by whom Mr Fainu suffered a broken tooth during the assault.
3. On 15 November 2022, Cooper J sentenced the Applicants to six months imprisonment with the final two months suspended on conditions. The offences carry a maximum prison sentence of 12 months. His Honour’s sentencing remarks set out the various submissions concerning the personal antecedents of both Applicants, consideration of the relevant circumstances of the offending and references to the Probation Pre-sentence Report including statements by the Applicants to the effect that they denied the offending. His Honour then took into account the considerations set out in Mo’unga v R [1998] Tonga LR 154 and observed that:

“55. By continuing to deny the offences both failed to take the first most important step towards rehabilitation that said, they have positive sides to their characters for example, they are relevantly young and seeking of counselling descried by Probation in each case may also assist”

4. The application for leave to appeal is essentially a single complaint that the sentencing Judge erred by not fully suspending the six-month sentences. The grounds relied upon are stated as:
   • (a) the Applicants are still young;
   • (b) they require an opportunity to rehabilitate themselves and take an anger management course (which is one of the conditions of the partial suspension imposed by the Judge);
   • (c) there was provocation from the victim;
   • (d) the offending was not premeditated;
   • (e) the Applicants cooperated with the investigating police officers at the time;
   • (f) they have apologized to the victim; and
   • (g) they have “not committed any offence of threat to the community or the victim since”.
5. Ms Kafoa, who appears for the Applicants also included in the application reference to two purported comparable decisions. The first was R v Fangatua & anor (CRSI 54 of 2019) where two of three Accused were convicted of assault by punching and kicking the victim, and sentenced to three months imprisonment, fully suspended for two years on conditions. The second decision relied upon is that of R v Tu’i’onetoa & ors (Supreme Court CR 224 and CR 225 of 2020) where Tu’i’onetoa punched the victim’s face and his co-accused kicked the victim’s body. They were sentenced to three months imprisonment. The co-accused’s sentence was fully suspended. Tu’i’onetoa’s sentence was to be served concurrently with another sentence for causing grievous bodily harm. Ms Kafoa also relies on the Mo’unga considerations to which I have already referred.
6. The test for the grant of leave to appeal against sentence involves consideration of whether there is a reasonable prospect of success on the appeal: Leimani v R [2021] TOCA 9.
7. In her primary submissions, Ms Kafoa merely relied on the contents of the application and supporting affidavits. Mr Fifita, for the Crown, opposed the application for leave to appeal essentially on the basis that the sentencing Judge took all relevant matters into consideration. In reply during the hearing today, Ms Kafoa submitted that the Judge “did not prioritise the Applicants’ willingness to rehabilitate themselves” and that “having to serve time in prison will not provide them with an opportunity for rehabilitation”.
8. In this application, no error of principle or approach has been identified. In what is an inherently discretionary exercise, subject to relevant statutory provisions and principles developed by the courts over time, the sentencing Judge identified the relevant considerations, in terms of the facts and applicable principles. Rather, the Applicants seek to reargue the same considerations that were taken into account by the sentencing Judge for the purpose of arriving at a different conclusion, namely, full suspension.
9. The sentence is not inconsistent with other sentences for like offending in the Supreme Court. The two decisions relied upon are clearly distinguishable for a number of reasons, the most important of which, is that the Applicants in this case were police officers. Their offending constituted an egregious breaches of duty and trust.
10. In his sentencing remarks, the sentencing Judge, who was familiar with all the evidence at trial, squarely rejected the claim of provocation, insofar as it may have been relevant on sentencing.
11. The Judge considered and took into account the Mo’unga factors so far as they were relevant on the facts of the case before him. It is important to note, contrary to the implicit submission of behalf of the Applicants, that where one or more Mo’unga factors may be in favour of suspension, it does not automatically follow that full suspension must be ordered: Attorney General v Leka [2021] TOCA 13 at [15]; Attorney General v Angilau [2022] TOCA 9.
12. To fully suspend the sentence in this case would have failed to give sufficient regard to or place sufficient weight on other relevant factors such as the seriousness of the offending and the particular circumstance of aggravation (namely, the Applicants being police officers), the effect on the victim and the sentencing objectives of denunciation and both general and specific deterrence.
13. Their denial of the offending casts doubt on whether the Applicants are likely to take the opportunity afforded by even a partially suspended sentence to rehabilitate. Nonetheless, the sentencing Judge took that into account in ordering partial suspension.
14. For those reasons, any appeal against the sentences has no reasonable prospects of success. The application is therefore refused.
15. After I pronounced that decision, Ms Kafoa sought to renew the application for leave before the Full Court. However, Order 7 rule 3 of the Court of Appeal Rules provides that:

If an application is refused by a single Judge without a hearing, it may be renewed with the leave of the Court at its next sitting.

[emphasis added]

16. In my view, and on a plain reading of that rule, the application for leave here has been refused following a hearing, and therefore, renewal is not available. Ms Kafoa was unable to identify any other statutory basis for renewal of the application for leave to appeal.
17. As leave to appeal has been refused, s 4B of the Bail Act permitting bail pending appeal cannot be engaged. Accordingly, the applications for bail pending appeal are also refused.

NUKU’ALOFA 12 December 2022

M. H. Whitten KC LCJ PRESIDENT