Tukuafu v Police [2001] TOSC 27; CR APP 016 2001 (6 July 2001)

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

NO.CR.APP.16/2001

BETWEEN:

PITA TUKUAFU
Appellant

AND:

POLICE
Respondent

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Veikoso for appellant and
Mr Fusitua for the respondent

Date of hearing: 12 June 2001
Date of judgment: 6 July 2001

JUDGMENT

The appellant was charged with one count of theft of a ploughshare worth $600. At the end of the preliminary inquiry in the Magistrates' Court on 28 March this year he pleaded guilty to the charge and was convicted and sentenced to 4 months imprisonment. He now appeals against that sentence which has been suspended pending this hearing.

Initially, I proposed to issue an oral decision on the day but during the hearing it became apparent that both counsel were proceeding on the assumption that a Judge hearing an appeal from the Magistrates' Court could simply, at his whim as it were, set aside the sentence imposed in the court below and substitute some other sentence without there being any onus on an appellant to first make out a basis which would allow this Court to intervene. For this reason, I thought that I should take the opportunity to restate the principles that this Court applies in hearing any appeal against sentence.

Section 74 (1) of the Magistrates' Courts Act (CAP. 11) gives any party a right of appeal to the Supreme Court from a sentence imposed by a Magistrate but that right is qualified to the extent that, apart from certain statutory restrictions that might apply in specific situations, the appropriate sentence in any given case is always, subject to what I am about to say, a matter for the discretion of the sentencing Magistrate. Although in practice there is no statutory bar on this Court substituting its own view of what the sentence should have been for the sentence actually passed, the approach traditionally adopted to appeals against sentence in the Kingdom, which is based on the common law and earlier judgments of the English Court of Criminal Appeal, is that before this Court will intervene, it must be satisfied that the sentence in question is manifestly excessive or manifestly inadequate or wrong in principle or there must be some other exceptional circumstances that warrant intervention. Some assistance can be gained from a comparison of sentences in other cases but, in general, precedent plays a relatively small part in sentencing because the facts of each case vary infinitely and all the circumstances of the particular case and the offender have to be taken into account. The important point for would-be appellants to bear in mind is that this Court will not interfere simply because it might have inflicted a different or less severe sentence.

In the present case, the principal submission advanced by counsel for the appellant was that the sentence of four months imprisonment should have been suspended in whole, pursuant to section 24 (3) of the Criminal Offences Act CAP.18). I am prepared to treat that submission as a plea that the sentence was wrong in principle for the reasons put forward by counsel.

In considering whether or not it is appropriate to suspend a sentence, the principle is that the court, first of all, needs to determine whether the case is a proper one for a sentence of imprisonment or whether some other course of sentencing is called for.

The article stolen by the appellant was a ploughshare. In Mo'unga v The Crown (unreported) Appeal No. 15/1997 (judgment dated 7 August 1998) the Court of Appeal echoed what had been stated in the earlier Court of Appeal decision of Lausi'i and Tauki'uvea v R TLR [1991] 55, namely, that imprisonment is inappropriate for first offenders for purely property offences unless the offence is of a particularly serious nature or there are unusual circumstances that render imprisonment necessary.

The Crown argued that imprisonment was appropriate in the present case because the value of the item stolen was significant, namely $600; that the theft was committed in the course of the appellant's employment and, hence, involved a serious breach of trust and, while accepting that the stolen item was recovered, the Crown made the important point that the ploughshare was returned to the complainant, not by the appellant, but, by the person who he had sold it to for $400 and none of the proceeds of sale were recovered from the appellant.

In the Lausi'i and Tauki'uvea case the value of the paint stolen by Tauki'uvea from his employer was similar to the value of the ploughshare in the present case. The Court of Appeal held that 4 months imprisonment was an appropriate sentence for Tauki'uvea and, likewise, for the various reasons submitted by the Crown I am satisfied that the sentence of 4 months imprisonment imposed on the appellant in the present case was entirely appropriate.

The issue that then arises is whether this was an appropriate case for the whole of the sentence to be suspended as counsel submits.

In the Mo'unga case the Court of Appeal noted that section 24 (3) was silent on the criteria to be considered in deciding whether a sentence should be suspended but the Court went on to adopt, as being appropriate to Tonga, the approach suggested by the New Zealand Court of Appeal in R v Petersen [1994] 2 NZLR 533, namely, that suspension of sentence may be appropriate in the following situations:

"(i) Where the offender is young, has a previous good record, or has had a long period free of criminal activity.

(ii) Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.

(iii) Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender.

(iv) Where there has been co-operation with authorities."

The appellant in the present case is 22 years of age and up to now he has had a completely unblemished record. I would accept that, in the circumstances, rehabilitation from a suspended sentence is likely. It also appears that there was a degree of coercion in that other people were involved and the initial approach to the appellant to carry out the theft in return for a payment of $400 came from a third party. The appellant appears to have co-operated with the police and he pleaded guilty at the end of the preliminary hearing. There has also been an apology and reconciliation. In summary, it appears to me that the appellant does satisfy the criteria adopted by the Court of Appeal for determining whether a sentence should be suspended.

It is apparent from the transcript that in his closing submissions in the court below, the appellant's counsel accepted the inevitability of a prison sentence but argued strongly for a suspended sentence. In addition to the points already referred to, counsel pointed out that the appellant's father had deserted the family home and he, as the eldest child, was now the only breadwinner in the family.

The "breadwinner submission" is one that is constantly raised in the courts in the Kingdom but it carries little weight in determining whether an accused should be sent to prison.

As Ward CJ said in 'Eukalite -v- Police [1994] TLR 80:

"Imprisonment will fall hard on the family he (the appellant) should be supporting but this Court has commented more than once that such a factor is not the responsibility of the Court."

The Magistrate obviously, quite correctly, placed considerable weight on the nature of the offending and noted the seriousness of theft as a servant, involving as it does a breach of trust. Theft as a servant will almost invariably involve a sentence of imprisonment but it is not a bar, in an appropriate case, to a suspended sentence.

What is of some concern, however, is that in his decision the Magistrate makes no reference whatsoever to counsel's submissions in support of his strong plea for a suspended sentence. To say nothing at all about counsel's main submission is to run the very real risk that this Court will more readily find that the sentence imposed is wrong in principle.

That is the conclusion I have come to in the present case. Applying the guidelines laid down by the Court of Appeal, I consider that, in all the circumstances of the case, the appropriate sentence was the term of 4 months imprisonment imposed by the Magistrate and that sentence is confirmed. The sentence is suspended, however, in whole for a term of 2 years.

NUKU'ALOFA: 6 JULY 2001.

JUDGE