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

CR 139/05

REX

-v-

‘ELEVISI KENGIKE

BEFORE THE HON. CHIEF JUSTICE WEBSTER

Counsel: Ms Mele Tupou for the Prosecution
Ms Mele Mangisi for the Defendant

SENTENCE

ELEVISI KENGIKE, you have pleaded guilty to the offence of theft of goods to the value of $358.75. The maximum penalty for this offence is imprisonment for 2 years.

At the time you were on a suspended sentence of 2 years imprisonment, suspended for 3 years from 20 November 2003, for robbery and grievous bodily harm. I shall deal with the question of activation of that suspended sentence later, but the appropriate procedure is for me first to sentence you for your latest offence: R v Ithell [1969] 2 All ER 449(CA).

The circumstances of the present offence were that on the night of 29 March 2005 you were stopped by the Police carrying a sack. When you were asked what was in the sack, you replied "Nothing", but when the Police officer looked inside the sack he found the items included in this charge. I regret that I am unable to accept your explanation that you simply found the sack and looked inside it; and I consider that you must be naive to think that the Court would be so stupid as to accept such an explanation.

Miss Mangisi submitted that this offence was not sophisticated nor premeditated, involved minimal planning and lacked a degree of professionalism, so that it should be viewed as an isolated lapse. While I accept that up to a point, I do not consider that it significantly alters the approach the Court should take.

Imprisonment for a purely property offence is not appropriate, unless there are unusual circumstances that render imprisonment necessary: Mo'unga v R [1998] Tonga LR 154 (CA). But in your case there are such circumstances. You are not a first offender and this is not your first offence of dishonesty. When you were sentenced for robbery in November 2003 you were given a suspended sentence, which was intended to give you a chance to show that that first offence was a thing in the past and that you would keep away from crime in the future. Unfortunately you did not take that chance and only 16 months later you offended again, which demonstrates that the penalty imposed in the past has not acted as a deterrent, which can be a reason for imposing a longer prison sentence. That means that it is not appropriate for the Court to give you a further chance and that a sentence of imprisonment is necessary and appropriate.

I have to say that I have an impression from what I have been told about what happened after your previous offence and what has happened in this case that you feel that if you apologise and the victim is compensated, and then you work hard, you will incur no other penalty. But that is not part of the principles on which the Court has to sentence offenders and the Court has a duty to protect the public and punish offenders.

I am certainly impressed that after your previous offending you managed to get a job and by your hard work and enthusiasm gained the confidence of your employer, who I understand is willing to re-employ you. But that also goes against you, as despite having home support and earnings from a good job, you still committed this theft. I am afraid that I find little material for me to agree with the view of the Probation Officer that you are unlikely to re-offend.

I also note that since you first appeared in the Supreme Court in July you have undergone various courses directed to anger and violence, although I have to observe that these do not appear to be strictly relevant to these proceedings as there was apparently no violence involved in this theft.

As this was an offence in the middle of the range of offences of theft up to $500, I consider an appropriate starting point is a period of imprisonment of 1 year, which should be discounted to a sentence of 8 months due to your plea of guilty. In other circumstances I would have considered suspension of the final part of that sentence, but due to your previous suspended sentence that is not practicable.

Turning to your previous suspended sentence, section 24(3) of the Criminal Offences Act, dealing with suspended sentences, provides at paragraph (c):

“(c) In the event of the offender being convicted of an offence punishable by imprisonment 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.”

Your lawyer Miss Mangisi has very properly drawn my attention to the amended section 24(3)(e) of the Criminal Offences Act, which provides:

"(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."

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" (Lyon v Wilcox [1994] 3 NZLR 422,431 (CA), following the Full Court in Re M [1993] NZFLR 74); "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" (Peninsula Watchdog Group (Inc) v Minister of Energy [1996] 2 NZLR 529,536 (CA)); ""Special" must mean unusual or uncommon - perhaps the nearest word to it in this context is "abnormal"", and "For circumstances to be special must be exceptional, abnormal or unusual" (Crabtree v Hinchliffe (Inspector of Taxes) [1971] 3 All ER 967,976 (Lord Reid),983 (Viscount Dilhorne)).

Miss Mangisi submitted that there were special circumstances in your case in that your response to your offending in 2003 had been to keep in regular employment and that you had managed to avoid re-offending for 20 months now. She submitted that you had also shown an ability to reform by participating in the courses I have already referred to and that for the first time in your life you appeared to be making substantial progress towards rehabilitation.

I have to say that, measured against the legal authorities I have referred to about the meaning of "special circumstances", I have very grave doubts about whether the facts of your case are exceptional, abnormal or unusual and whether they really set it apart from other cases. The salient fact is that, having been given a suspended sentence for 2 very serious crimes, you re-offended within 16 months. It must also count against you in that balance that, other than the suspended sentence, you did not receive, and so have not undergone, any other punishment, such as community service or probation, for those offences, although compensation of $1000 was paid to your victim. It is thus very borderline whether there are special circumstances, but in this instance I am prepared to consider whether or not I should impose the suspended sentence.

I also have considerable doubts about whether, as submitted by Miss Mangisi, I am able to go beyond the terms of section 24(3)(c)&(e) of the Criminal Offences Act of Tonga and apply the approach in section 23(1) of the English Act, ie considering a lesser term of imprisonment in addition to extending the original period of suspension.

However, I have come to the conclusion that in the circumstances of your case the English precedent is a good one to follow and, while I do not consider it would be unjust in all the circumstances to activate at this stage the whole period of suspension, that could be harsh, given the positive aspects of your behaviour.

For all these reasons I shall therefore sentence you to serve half the original suspended term, ie 1 year, the commencement of which is backdated to the date when I remanded you in custody, ie 13 July. The remainder of 1 year of the original suspended term will be suspended for 1 further year from your date of release on condition that you are on probation during that period. If you commit any further offences during that period of suspension you must realise that you are unlikely to be given any further latitude by the Court.

I shall be lenient and order that the 8 months sentence on the theft charge will be served concurrently with that sentence, also backdated to 13 July.

I have to add that I am very surprised to find that your 2 original offences of robbery and grievous bodily harm, both of which carry maximum terms of imprisonment of 10 years and are indictable offences which ought to be dealt with in the Supreme Court, were dealt with in the Magistrates’ Court.

R M Webster
Chief Justice

Dated: 24 October 2005