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Court of Appeal of Tonga |
IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
AC 3 of 2025
[CR 96 of 2023]
BETWEEN
REX
Appellant
AND
THOMAS LIIV
Respondent
Hearing:
6 May 2025
Court:
Randerson, Harrison and Morrison JJ
Counsel:
Joe Fifita for the Appellant
The Respondent in person
Judgment:
12 May 2025
JUDGMENT OF THE COURT
Background
[1] This appeal by the Crown against the sentence imposed on the respondent on 21 January 2025, by Justice Cooper. The grounds of appeal are that:
(a) the sentence is, in all the circumstances, manifestly inadequate;
(b) the learned sentencing judge misapplied s 24(3)(c) and (e) of the Criminal Offences Act; and
(c) the learned sentencing judge erred when ordering the respondent’s sentences for CR 96/23 and CR 192-194/24 to be served concurrently.
- [2] The respondent was sentenced to 42 days’ imprisonment, and a $300 fine was imposed, to be paid within six months of his release, with seven days to be served in default.
Sequence of sentences
[3] The relevant sequence of the respondent’s convictions and the sentences imposed, is as follows:
(a) 18 December 2020 (CR 56/20), convicted for:
- (i) possession and cultivation of illicit drugs, contrary to s 4(1)(a)(i) and s 5A of the Illicit Drugs Control Act;
- (ii) possession of ammunition without a licence, contrary to s 4(1) and 2(b) of the Arms and Ammunition Act;
and sentenced to 2 years, fully suspended for 3 years commencing 18 December 2020;
(b) 6 December 2024 (CR 96/23) convicted for offending conduct that occurred on 7 March 2023, within the period of the suspended sentence in CR 56/20:
- (i) count 1 - possession of 7.6g of cannabis, contrary to s 4(1)(a)(i) of the Illicit Drugs Control Act;
- (ii) count 2 – possession of drug utensils, contrary to s 5A of the Illicit Drugs Control Act;
- (iii) count 3 - possession of 11 rounds of 0.22 ammunition without a licence, contrary to s 4(1) and 2(b) of the Arms and Ammunition Act; and
- (iv) count 4 - possession of a 0.22 pistol without a licence, contrary to s 4(1) and 2(b) of the Arms and Ammunition Act;
(c) 9 December 2024 (CR 192-194/24), convicted (on a plea of guilty) in Magistrates Court for offending conduct that occurred on 21 March 2024 (while on bail for CR 96/23):
- (i) count 1 - possession of 0.7g of methamphetamine, contrary to s 4(1)(a)(i) of the Illicit Drugs Control Act;
- (ii) count 2 - possession of 0.10g of cannabis, contrary to s 4(1)(a)(ii) of the Illicit Drugs Control Act;
- (iii) count 3 - possession of drug utensils (12 pipes), contrary to s 5A of the Illicit Drugs Control Act;
(d) 17 January 2025, sentenced for the entirety of the offending:
- (i) CR 96/23: 42 days’ imprisonment; fine of $300 to be paid within 6 months of release, 7 days to be served in default;
- (ii) CR 192-194/24: 42 days’ imprisonment, to be served concurrently with the sentence in CR 96/23;
- (iii) CR 56/20 (breach of suspended order): 42 days activated, to be served concurrently with the sentences in CR 96/23 and CR 192-194/24.
Statutory provisions
[4] Section 24(3)(n) and (k) of the Criminal Offences Act provides:
“(c) In the event of the offender being convicted of an offence punishable by imprisonment committed during the period of suspension he will thereupon be sentenced to serve the term of the suspended sentence in addition to the punishment imposed for such subsequent offence.
...
(e) In special circumstances the Court may release an offender from the operation of paragraph (c) and may extend the original period of suspension for a further period not exceeding 1 year.”
[5] The word “thereupon”, when used in s 24(3)(c), has been held to mean “in consequence of”. In R v Vete,[1] the Court held:
“The word “thereupon” in the context of section 24(3)(c) of the Criminal Offences Act meant “in consequence of that; on that subject matter; with reference to that” and in consequence of the second conviction, the earlier suspended sentence was automatically invoked and would be enforced by the court unless the judge could be persuaded that there were “special circumstances” which would allow the offender to be released from its operation.”
Relevant principles
[6] This Court referred to the applicable principles in a Crown appeal on sentence in R v Misinale.[2]
The reasons for sentence
[7] The learned sentencing judge delivered reasons for sentencing. His Honour commenced by noting the offences and some features of them, including:
(a) the count of possession of 7.6g of cannabis (in CR 96/23) involved the respondent placing the cannabis in a misguided attempt to supply those he thought were potential customers; in fact, it was the police he was supplying to;[3]
(b) the offences in CR 192-194/24 were committed while on bail;[4]
(c) the appellant had five previous convictions for nine offences, almost all of which were drug offences; his last convictions were in CR 56/20, for possession and cultivation of drugs and possession of unlicenced ammunition;[5]
(d) the maximum sentences for the offences;
(e) the appellant breach his probation and absconded between 9-17 January 2025;[6]
(f) the appellant said he was an addict and sought help; and
(g) during his trial he had been remanded in custody from 1 May 2024 until 1 August 2024, thus serving three months’ imprisonment.[7]
- [8] His Honour then explained the approach he was taking. His Honour was persuaded that the appellant wanted to change, and had a close, supportive family.[8] There had no further drug offending since 9 December 2024 (when he was convicted in the Magistrates Court).[9] His Honour was “prepared to take [the appellant] at his word” when he said wanted to break with the past, but this was his last chance.[10]
- [9] His Honour then said:
“23. What I am minded to do is to sentence him to a short term of imprisonment to mark that his offending must be punished by imprisonment, it being so serious.
“27... I have had an opportunity of seeing Mr. Liiv before me at trial and at sentence and those matters I set out above. In my short time here I have never before known an offender to take the step of admitting his addiction, offending maybe, but that is often merely the symptom, not the cause.
[12] “30. For each count
- 42 days’ imprisonment, concurrent.
- A fine of $300 to be paid by 28 August 2025, 7 days’ imprisonment in lieu.
- Within 7 days of his release he is to attend a Drug Rehabilitation Program at the Salvation Army, Probation to kindly facilitate this with a visit to Mr. Liiv and to please liaise with him in Hu'atolitoli and the Salvation Army.
- A review date of 28 September 2025 1000 hrs, to be set before Lord Chief Justice for Mr. Liiv to attend; a review of his Drug Rehabilitation Course and his having paid his fine to take place on that date.
31. For the charges in the Magistrates’ court
32. For the breach of his suspended sentence
Ancillary orders
• The $40 seized in respect of CR 97/2023, to be forfeited.”
[13] There are a number of matters within the sentencing reasons that give cause for concern as to the sentencing process.
[14] Firstly, his Honour did not advert at all to the terms of s 24(3)(c) of the Criminal Offences Act. On the appeal Counsel for the Crown confirmed that the sentencing judge was not specifically referred to s 24(3)(c) or (e), though his Honour had been urged, as the sentencing remarks show, to enliven the whole of the suspended sentence. Plainly his Honour did not have regard to s 24(3)(c) or (e).
[15] Secondly, each count attracted 42 days’ imprisonment, each to be served concurrently with each of the other sentences. Nothing was said as to how, if at all, the 92 days already served was taken into account. Those 92 days were in remand while awaiting the trial in CR 96/23.
[16] Thirdly, as appropriate as it may be to temper punishment with mercy in a particular case, the appellant was an offender who: (i) had breached a suspended sentence by the further offending (in CR 96/23); (ii) had previous convictions and custodial sentences for similar offending; and (iii) had committed some of the index offences (Cr 192-194/24) while on bail. Apart from saying his Honour was impressed with the appellant’s desire to change and would take him at his word, there is no elucidation as to how those factors were weighed in the sentencing process.
[17] Moreover, factors (i)-(iii) above would normally call for considerable emphasis on denunciation and deterrence, if not punishment, and relegation of mitigation.
Application of s 24(3)
[18] No consideration was given to s 24(3), and in particular s24(3)(e). Significantly, if s 24(3)(e) was to be found applicable, i.e. the court was to find there were “special circumstances” that excused the application of s 24(3)(c), the reasons for that finding, and that those circumstances reasonably excused the operation of s 24(3)(c), would have to be articulated.[13]
[19] The relevant words in s 24(3) show that there are several components involved.
[20] The first is the precondition to its application: “In the event of the offender being convicted of an offence punishable by imprisonment....: The section only applies to an offender who is (a) convicted of an offence that is (b) punishable by imprisonment. Here, that precondition is met. The respondent was convicted of drug offences which had imprisonment as a punishment.
[21] Secondly, the offence must be one “committed during the period of suspension”. We note that the section does not stipulate that the conviction itself must have been during the period of suspension, only that the offence was committed during that period. That condition is satisfied here, as the offending conduct in CR 96/23 occurred on 7 March 2023, within the period of the suspended sentence in CR 56/20.
[22] Thirdly, if those two conditions are met, the offender “will thereupon be sentenced to serve the term of the suspended sentence”. As noted above, the word “thereupon” received explanation in R v Vete.[14] It means that in consequence of the subsequent conviction, the earlier suspended sentence was automatically invoked. It may be noted that the trigger or the invoking of the suspended sentence is the subsequent conviction. Of course, that second conviction itself might not necessarily occur during the period of suspension. However, the section does not contemplate that it must, only that the offending conduct occur in that period.
[23] Fourthly, the section provides, subject to s 24(3)(e), the sentence following the second conviction must be on the basis that the term of the suspended sentence will be in addition to the punishment imposed for such subsequent offence. The language of s 24(3)(c) is not permissive. Rather, it clearly mandates that the automatic result of the conditions being met, is that the sentence (for the offending that occurred during the previous suspension period) must include the balance of the term suspended, in addition to the subsequent sentence.
[24] Those matters lead to the conclusion that the operation of s 24(3)(c) does not rely upon the subsequent conviction occurring during the period of the suspended sentence. To the contrary, only the offending conduct must occur during that period. That has this consequence in the present case:
(a) here the suspended sentence (in CR 56/20) was a two-year term, fully suspended for three years commencing 18 December 2020;
(b) the offending conduct in CR 96/23 occurred on 7 March 2023, within the period of the suspended sentence;
(c) though the period of suspension would normally have expired as at 18 December 2023, the fact that the offending conduct occurred during the suspension period meant that the suspended sentence became susceptible to the operation of s 24(3)(c) in the event that a conviction was entered in respect of it;
(d) in other words, the suspended period became susceptible to being fully re-enlivened in the event a conviction occurred;
(e) it therefore did not expire on 18 December 2023.
- [25] This conclusion serves to highlight the necessity for a sentencing judge, when confronted by the effect of s 24(3)(c), to consider the operation of s 24(3)(e). It provides an exception to the automatic operation of s 24(3)(c) by providing:
“In special circumstances the Court may release an offender from the operation of paragraph (c) and may extend the original period of suspension for a further period not exceeding 1 year.”
[26] For s 24(3)(e) to be applied there must be a finding that there are “special circumstances” warranting its application. The question as to what constitutes “special circumstances” has been addressed in R v Kengike:[15]
“There is no definition of “special circumstances” in the Act and the corresponding English Act, the Powers of Criminal Courts Act 1973, does not use the same terminology as it stipulates (in section 23(1)) that a suspended sentence is to be activated “unless the court is of opinion that it would be unjust to do so in view of all the circumstances.
A variety of cases on the meaning of “special circumstances” are recorded in Words and Phrases Legally Defined and Stroud’s Judicial Dictionary, the most helpful of which are the description “facts peculiar to the particular case which set it apart from other cases” ...; “A special consideration is one outside the common run of things, one which ... is exceptional, abnormal, or unusual, but something less than extra ordinary or unique” ...; “Special” must mean unusual or uncommon – perhaps the nearest word to it I this context is “abnormal”, and “For circumstances to be special must be exceptional, abnormal or unusual” ...”
[27] Further, the question of “special circumstances” in the context of s 24(3)(e) was considered in Police v Tipiloma Funaki:[16]
“[17] This court in R v Veke [2007] TLR 38, held that in consequence of a second conviction, the earlier sentence was automatically invoked and enforced by the court unless a judge is satisfied there were special circumstances to allow for the release of the offender from the operation of s 24(3)(c).
[18] A special circumstance where it will be appropriate to release an offender is where the subsequent offence is relatively trivial.”
[19] It is not clear from the learned magistrate’s decision what circumstances were taken into consideration to arrive at his refusal to activate the suspended sentence.
[20] In analysing the case and the imposed sentence it could be said that this was a trivial offence and therefore a special circumstance was present. The difficulty is, there is nothing to show this was the approach taken.
[21] I agree with the Appellant that the Learned magistrate reached his decision in a procedurally unfair manner by not raising with counsel the possibility of releasing the respondent from the suspended sentence and/or affording both parties an opportunity to make submissions on the point.”
[28] The difficulty in the present case is that no consideration was given to: (i) the automatic operation of s 24(3)(c), and (e) whether there were special circumstances that might relieve from its effect.
[29] The prima facie position after the application of 2 24(3)(c) is that the respondent should have been sentenced to two years’ imprisonment (the reactivated suspended sentence) in addition to the sentence for the offences in CR 96/23. Even if the learned sentencing judge was correct in applying 42 days plus a $300 fine for the offending in CR 96/23, that still left reactivated suspended sentence of two years, as well as the sentence that should be imposed for the offences in 192-194/24.
[30] However one considers it, the sentencing process has miscarried in a way that squarely comes within what was said in R v Misinale.
Other factors
[31] As we have said above, the appellant was an offender who: (i) had breached a suspended sentence by further offending; (ii) had previous convictions and custodial sentences for similar offending; and (iii) had committed further offences while on bail.
[32] Those matters call for considerable emphasis to be placed on the need for denunciation and deterrence (both personal and general), if not punishment, and relegation of mitigation and rehabilitation as the compelling consideration. In that context a sentence of only 42 days was manifestly inadequate, even with the small fine. Even if the 92 days already served is added, that still results in a sentence of four and a-half months. In the circumstances, that is, in our view, manifestly inadequate as well.
[33] It follows that the sentence must be set aside and the respondent re-sentenced.
[34] In the circumstances there is no necessity to deal with the ground of appeal concerned with whether the sentences should have been ordered to be served cumulatively rather than concurrently.
Resentencing
[35] The purposes of sentencing have long been settled. As was said in Fifita v R:[17]
“[118] The purpose of a sentence imposed on an offender are to punish so far as is just and fitting in the circumstances; the deterrence of criminal behaviour by the offender and others; the rehabilitation of the offender to fulfil a useful role in society; the vindication of society’s standards; and the protection of law-abiding members of the community.”
[36] Consideration of the appropriate sentence that should be imposed must include the following elements:
(a) the reactivated suspended sentence of two years is to be served in addition to any other sentence, unless s 24(3)(e) applies;
(b) the appropriate sentence for the offences in CR 96/23, taking into account that the suspended sentence has been reactivated; and
(c) the appropriate sentence for the offences in CR 192-194/24, taking into account that the suspended sentence has been reactivated.
- [37] Relevant factors to take into account in that consideration include:
(a) the appellant has served the 42 days imposed on 17 January; that means he was released on 28 February and has therefore been in the community for about 67 days;
(b) the appellant was not a first-time offender – he had three previous convictions for illicit drugs, plus unlicensed ammunition;
(c) in CR 96/23 the conviction and sentence occurred after a trial; therefore, there was, in respect of that proceeding, no element of remorse or acceptance of guilt;
(d) the appellant did not cooperate with the police;
(e) the offending conduct in CR 96/23 was committed during the suspended sentence in 56/20;
(f) the offences in CR 56/20 involved illicit drugs and unlicensed ammunition;
(g) the offending in CR 96/23 involved illicit drugs, unlicensed ammunition and drug utensils; as well, a home-made pistol, suggesting some determination on the appellant’s part;
(h) the offending conduct in CR 192-194 involved illicit drugs (0.10g of cannabis, 0.07g of methamphetamine), drug utensils (11 pipes), and unlicensed ammunition; importantly, those offences were committed while on bail for CR 96/23.
- [38] In our view, the repeat offending by the respondent, and the fact that twice it has occurred in defiance of court orders, does not call for particular leniency. The fact that one set of similar offending conduct occurred during a suspended sentence and another while on bail, put deterrence, punishment and denunciation at the forefront of the sentencing consideration, and diminish the importance of rehabilitation prospects as a determining factor. The prospect of having to serve the suspended sentence in full has been present for some time.
- [39] The respondent told the Court, without objection, that:
(a) he was 39 years old, living at home with his two teenage children;
(b) he was working as a supervisor with the firm at which he had been employed for some years;
(c) he had attended a drug rehabilitation course with the Salvation Army;
(d) he was saving to pay the $300 fine, and had accumulated $100; and
(e) he was off drugs, saying “enough is enough”.
- [40] A letter of support from his employer was tendered.
- [41] In our view, “special circumstances” within s 24(3)(e) is not confined to matters personal to the accused. Further, as noted in R v Kengike and Police v Tipiloma Funaki, to be a special circumstance, it must be exceptional, abnormal, unusual or uncommon. In our view, the matters outlined in paragraph [39] above do not meet that definition, laudable though they be. Many drug affected offenders could claim similar factors in aid.
- [42] However, there remains the fact that the respondent was released after serving the (erroneously imposed) 42 days imprisonment, and has been at liberty without reoffending for about 67 days. In the circumstances of this case, to be reincarcerated after being at liberty is a “special circumstance” for the purposes of s 24(3)(e).
- [43] Therefore, the effect of reactivation of the suspended sentence under s 24(3)(c) can be relieved. However, we do not consider it should be effectively waived, given the seriousness of the offending and re-offending which are noted above.
- [44] Given that the respondent has served a total of 134 days, or four and a-half months, we consider that the suspended sentence should be reactivated only to the extent of one year. That will mean to total period to which the respondent is sentenced is effectively one year and four and a-half months. No further suspension is warranted given that the second set of offences were committed during the suspended sentence and the third set whilst on bail. Further, we consider the fine serves no useful purpose and will not be reimposed.
- [45] In our view, due recognition of those considerations compel the conclusion that the respondent should be sentenced as follows:
(a) on CR 56/23, one years’ imprisonment, to date from the day this judgment is delivered;
(b) on CR 96/23, sentenced to time served; and
(c) on CR 192-194/24, sentenced to time served.
Result
Randerson J
Harrison J
Morrison J
[1] R v Vete [2007] Tonga LR 212,
[2] R v Misinale [1999] TOCA 12.
[3] Paragraph 5.
[4] Paragraphs 7-8.
[5] Paragraphs 9-10.
[6] Paragraph 14.
[7] Paragraph 17.
[8] Paragraph 19.
[9] Paragraph 20.
[10] Paragraphs 21-22.
[11] Paragraphs 27-28.
[12] Paragraphs 30-32.
[13] Fanua v Rex [2020] TOCA 5 at [29]- [30].
[14] R v Vete [2007] Tonga LR 212.
[15] R v Kengike [2005] Tonga LR 400.
[16] Police v Tipiloma Funaki AM 5 of 2022 (8 December 2022) at [17]-[21].
[17] Fifita v R [2000] TLR 289 at [118].
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URL: http://www.paclii.org/to/cases/TOCA/2025/1.html