Rex v Ake [2006] TOSC 3; CR 140.2005 (3 February 2006)

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

CASE NO: CR 140/05

REX

-v-

'ALEKISANITA 'AKE

BEFORE THE HON CHIEF JUSTICE WEBSTER

SENTENCING DECISION

Mandatory life sentence

Counsel for the Defendant made the submission that it was not mandatory to impose a sentence of life imprisonment as an alternative to a sentence of death for the offence of murder and that a sentence of imprisonment for a shorter period could be imposed. He did not refer to any particular authority for that submission, except to refer to sections 91, 30 and 174 of the Criminal Offences Act.

The authority of this Court to impose any sentence on an accused person who is found guilty derives only from the Criminal Offences Act and any other relevant statute. It is therefore necessary to look to that act for the power to impose the sentence in this case, where the Defendant has been found guilty of murder.

As it appeared that counsel for the Defendant, in making his submission, had not taken into consideration the basic principles of statutory interpretation, it is as well to start by setting them out.

So far as this issue is concerned, the principles are very simple. The words concerned are to be given their plain and natural meaning in their context, looking at the Act as a whole. Only if there is some ambiguity should the Court then look at the mischief to which the Act is addressed.

While there are many refinements to these simple principles, and volumes have been written on the subject, the principles are set out in an accessible form and place in Halsbury’s Laws (4th Ed) Vol 44 Paras 855–858:

855. Statutes and other documents construed alike.

The canons of construction with regard to statutes do not, in effect, differ from those applicable to all documents.

856. Ascertaining the intention of Parliament.

The object of all interpretation of a written instrument is to discover the intention of the author as expressed in the instrument. The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. This intention, and therefore the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand, however strongly it may be suspected that the result does not represent the real intention of Parliament.

857. Construction where statute is unambiguous.

If the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of Parliament, and there is no need to look elsewhere to discover their intention or their meaning.

858. Construction where statute is ambiguous.

If the words of a statute are ambiguous, the intention of Parliament must be sought first in the statute itself, then in other legislation and contemporaneous circumstances and finally in the general rules laid down long ago, and often approved, namely by ascertaining (1) what was the common law before the making of the Act; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy Parliament resolved and appointed to cure the disease of the Commonwealth; and (4) the true reason of the remedy.

Although there have been some developments since these were written, the developments do not affect this application of the basic principles in this case.

Applying these basic principles in this case, the start point is section 24(1) of the Criminal Offences Act, which sets out the different kinds of punishment which may be inflicted, including at para (d) imprisonment.

Counsel for the Defendant referred to section 30, which gives the Court power to impose a fine instead of imprisonment. He did not actually submit that a fine should be imposed in this case and I do not consider that a fine would be remotely acceptable as a punishment in this case of murder, especially taking into account the remarks by the Court of Appeal in prosecution appeals against sentence in cases for the lesser offence of manslaughter, such as Rex v Holani [2001] TOCA 12; CA 06/01 (27 July 2001).

The Criminal Offences Act is noteworthy in that in each case in which a power to impose a sentence of imprisonment is given – except for section 91(1) dealing with the penalty for murder - it is expressed in the form “every person who commits .... shall be liable to imprisonment for any period not exceeding X years”. See for example section 93 (penalties for manslaughter) and the section referred to by Counsel for the Defendant, section 174 (unlawful entry into buildings by night).

Given that individual treatment of sentences of imprisonment, there is no general blanket power in the Criminal Offences Act for the Court to apply discretion and impose a lesser sentence of imprisonment. There is no need for such a general power, because for the sake of clarity it has been spelt out individually in each individual section where relevant.

Against all that context the wording of section 91(1) is strikingly different:

“Every person who commits murder shall be sentenced to death or to imprisonment for life:”

That is most certainly written in mandatory terms and as there is no mention of the Court having a discretion to impose a sentence of imprisonment for a lesser period than life, the only discretion the Court has under that subsection is whether to impose a sentence of death or one of life imprisonment.

Even looking at the context of the subsection itself, it is clear that, when Parliament enacted it, it was treating murder as a very serious offence, deserving the greatest penalty possible, that of a death sentence. But Parliament did give the Court an alternative, that of the second most severe sentence, ie life imprisonment, and in these circumstances, unless Parliament specifically stated that the sentence of imprisonment could be for less than life (as has been done in other sections referred to below), the Court cannot read such a further discretion into the subsection.

That is even in contrast to the penalty for attempted murder, set out in section 91(2):

“Every person who attempts to commit murder shall be liable to imprisonment for life or any less period.”

Importantly it also has to be noted that in section 33(3) the power of His Majesty the King to commute a sentence of death likewise gives no further discretion:

“(3) It shall be lawful for the King with the consent of the Privy Council to commute a sentence of death to imprisonment for life.”

It is further important to look at provisions for punishment of other offences which attract the death penalty. Section 44 deals with treason and provides (using the phrase “any period not exceeding life” derided by Counsel for the Defendant in his submission):

“shall on conviction thereof be sentenced to death or to imprisonment for any period not exceeding life ...”

In section 101, the penalty for incitement to commit suicide is expressed as “shall be liable to imprisonment for life or any less period”.

Therefore the conclusion which I draw looking at the plain and natural meaning of the words in section 91(1) in the context of the Criminal Offences Act as a whole is that the words mean exactly what they say and that the only 2 alternatives open to the Court when sentencing for murder are a sentence of death or a sentence of life imprisonment, with there being no discretion in the Court to substitute a shorter period of imprisonment.

It is important also to state that the task of the Court is to apply the law as passed by Parliament. It may well be that in the present age and changing circumstances, many years after the Criminal Offences Act was passed by Parliament in 1924, a sentence of imprisonment for life is intolerably long and inappropriate and that the Court should be given some discretion to impose a lengthy, but lesser period of imprisonment. But such a change is a task for Parliament and not this Court, which would be exceeding its constitutional position if it made such a change in the law.

I also wish to finish these preliminary remarks with a word about the position of a counsel making a submission such as this. He has of course every right to do so in his client’s interest, especially in a very serious case such as a murder case. But counsel is also an officer of the Court and has duties to the Court to further the administration of justice, as well as his own client. These duties to the Court mean that any submission must be fully thought out and backed up by appropriate authority, so that the Court is fully appraised of all the relevant law on the matter before it has to take a decision. As I have demonstrated above, the law is not complex and can be found simply in Halsbury’s Laws, available at the Law Society, and in the terms of the Criminal Offences Act itself. I very much regret that in this serious case I did not consider that the Defendant’s Counsel had fulfilled that duty to the Court and I very much hope that such a situation does not occur again.

Background

'ALEKISANITA 'AKE, you have been found guilty of the crime of the murder on 4 May 2005 of your cousin Fekumi Matekuolava at Tokomololo on 4 May 2005 by using an iron rod and hitting him twice in the head and thus causing severe head injuries leading to his death.

In making that finding I did not accept the defence put forward on your behalf that there had been extreme provocation by Fekumi.

Circumstances of offence

The circumstances of the offence are set out in full in my written reasons dated 20 December 2005.

Punishments for murder

As I have already mentioned, under section 91 of the Criminal Offences Act there are only 2 alternative punishments for murder, to be sentenced to death or to imprisonment for life. The alternative to be imposed is within the discretion of the Court, to be exercised judicially after considering all relevant factors, which have recently been set out in full in R v Vola [2005] TOSC 31, CR 65/05, 10.11.05. The Court has no power to impose any lesser sentence.

Your Counsel Mr Teisina Fifita has made persuasive submissions to assist me in that decision.

I have also taken into account the Probation Service Report dated 12 January 2006, the Victim Impact Report and the letters from your Church minister and the Town Officer.

Circumstances in this case

I must start by saying that I am presented with 2 completely different pictures of you – the well-mannered young man who is a good Church member – and the man who goes on a drinking spree drinking all night and then the next day, and kills his cousin when he is so drunk as a result.

I think I must comment on the evils of going on a drinking party which lasts all day. This is my 5th year in the Courts in Tonga and I know that such drinking parties are all too common, with the result that the people concerned end up in Court because unimaginable things have been done which nobody in their right mind would even think of doing. The point today is not that you are a well-mannered young man (though I take that into account), but that you got yourself so drunk that you killed your cousin.

In your case, in mitigation I take into account all that Mr Fifita has put forward on your behalf. The relevant circumstances to which I have had regard are:

You were indicted and convicted of murder under section 87(1)(b) of intending to cause bodily injury to Fekumi which you knew was likely to cause death and were reckless whether death ensued or not: but you were not charged or found guilty of the more culpable charge under section 87(1)(a) that you intended to cause the death of Fekumi;

This murder was not pre-meditated, except in so far as you went intending to attack Fekumi;

You were provoked by Fekumi, though I found that your reaction went beyond the reaction to extreme provocation which the law allows, but it is still right for the Court to take it into consideration when passing sentence;

Although this murder was horrible, it did not involve extreme brutality nor exceptional depravity;

Intoxication does not constitute a defence or excuse to a criminal charge under the law of Tonga;

You will have to live with what happened for the rest of your life;

Your motivation to change;

You have no previous convictions in Tonga;

Your remorse and concern and the acceptance of a customary apology, and the forgiveness from Fekumi’s family;

Your cooperation with the authorities throughout;

I therefore did not find that your offence was of an exceptionally depraved and heinous character or constituted, on account of its design and the manner of its execution, a source of grave danger to the society at large. I did not find circumstances evidencing aggravation of an abnormal or special degree. I accept that in due course you can be reformed and rehabilitated. This is not one of the rarest of rare cases where the alternative option of life imprisonment is unquestionably foreclosed.

Sentence

'ALEKISANITA 'AKE, THE COURT THEREFORE SENTENCES YOU TO LIFE IMPRISONMENT. I shall also recommend that while you are in prison you should undergo a course in alcohol awareness. As I have said earlier, the Court has no further discretion to impose any lesser sentence, but you are a young man with your life before you and a life sentence will last a very long time. Having heard all your case and the mitigating circumstances advanced by your Counsel Mr Fifita, I shall recommend that, if your conduct in prison remains good, you take that course in prison, and you avoid further violence, you should be considered for parole or release on licence after you have served around 10-15 years.

3 February 2006

R M Webster MBE,
Chief Justice

APPENDIX TO SENTENCING DECISION

R v TEVITA VOLA CR 65/05

Legal authorities

State v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (South Africa)
Reyes v The Queen, [2002] UKPC 11, 11 March 2002.
Furman v State of Georgia [1972] USSC 170; 408 US 238 (1972)
Harmelin v State of Michigan [1991] USSC 120; 501 US 957 (1991)
Bachan Singh v State of Punjab [1980] 2 SCC 475, [1980] AIR 890
State v Nkwanyana [1990] ZASCA 95; 1990 (4) SA 735 at 743E-745G

Death penalty

The distinctive features of the penalty were emphasised by Justice Brennan in the case of Furman v State of Georgia, when he wrote that:

“Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering ...” [287 & 288]

and he said that:

“Death is truly an awesome punishment. The calculated killing of a human being by the state involves, by its very nature, a denial of the executed person s humanity. The contrast with the plight of a person punished by imprisonment is evident .... A prisoner remains a member of the human family ... In comparison to all other punishments...the deliberate extinguishment of human life by the state is uniquely degrading to human dignity.” [290 & 291]

In Makwanyane Justice Chaskalson, the President of the Constitutional Court, said:

“Death is the most extreme form of punishment to which a convicted criminal can be subjected. Its execution is final and irrevocable. It puts an end not only to the right to life itself, but to all other personal rights which had vested in the deceased under ... the Constitution. ... In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment.” [Para 26]

and in the same case of Makwanyane Justice Kentridge said:

“It may be said that if the punishment is cruel so was the act of the murderer. That cannot and should not be denied. ... proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading. But that does not mean that the State should respond to the murderer's cruelty with a deliberate and matching cruelty of its own. ... that would imply that punishment must not merely fit the crime, but repeat the crime.” [Para 197]

Also in Makwanyane, Justice O’Regan quoted Justice Brennan in the case of Furman:

“The true significance of [cruel and unusual] punishments is that they treat members of the human race as non-humans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause [in the Constitution] that even the vilest criminal remains a human being possessed of common human dignity.”

[272 & 273]

Arbitrariness

Justice Brennan also stated in the case of Furman (in a context .. where a vast number of murders are committed, a large number of accused charged and convicted but relatively few ultimately executed) that:

"No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison. Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain, on that ground, the execution of such a tiny sample of those eligible .... Nor is the distinction credible in fact." [274]

On the issue of arbitrariness, Justice Ackermann said in Makwanyane:

“I am mindful of the fact that it is virtually impossible (save in the case of rigidly circumscribed mandatory sentences - which present other dangers) to avoid elements of arbitrariness in the imposition of any punishment. Arbitrary elements are present in the difficult decision to send an offender to prison for the first time, or in deciding what the appropriate length of the prison sentence should be in any case where it is imposed. However, the consequences of the death sentence, as a form of punishment, differ so radically from any other sentence that the death sentence differs not only in degree but also in substance from any other form of punishment. A sentence which preserves life differs incomparably from one which obliterates life. The executed person has, in fact, "lost the right to have rights." In this sense the death sentence is unique and the dimension and consequences of arbitrariness in its imposition differ fundamentally from the dimension and consequences of arbitrariness in the imposition of any other punishment.” [Para 164]

Exercising the discretion

In Bachan Singh v State of Punjab the Supreme Court of India stated:

“The Supreme Court should not venture to formulate rigid standards in an area in which the Legislature so warily treads. Only broad guidelines consistent with the policy indicated by the Legislature can be laid down. But this much can be said that in order to qualify for inclusion in the category of "aggravating circumstances", ... circumstances found on the facts of a particular case, must evidence aggravation of an abnormal or special degree.” [243 E-F, 254 B-C]

“For making the choice of punishment, ... the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because "style is the man." ... In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" [for imposing the death penalty] can legitimately be said to exist.”

[251 G-H, 252 A-C]

“There are numerous other circumstances justifying the passing of the lighter sentence, as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts ... .” [255 E-H, 256 A-C]

In the case of Bachan Singh the Indian Supreme Court, while not laying them down as guidelines, did refer to examples of aggravating circumstances where a Court might in its discretion impose the penalty of death, such as the murder having been committed after previous planning and involving extreme brutality; or if the murder involved exceptional depravity; or the murder of a member of the armed forces, the Police or a public servant in the course of duty. In the same manner, that Court also noted mitigating factors, such as the offence being committed under the influence of extreme mental or emotional disturbance; the young or old age of the accused; the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society; the probability that the accused can be reformed and rehabilitated; that in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence; that the accused acted under the duress or domination of another person; or that the condition of the accused showed that he was mentally defective and that that defect impaired his capacity to appreciate the criminality of his conduct.

Counsel for the Defendant made the submission that it was not mandatory to impose a sentence of life imprisonment as an alternative to a sentence of death for the offence of murder and that a sentence of imprisonment for a shorter period could be imposed. He did not refer to any particular authority for that submission, except to refer to sections 91, 30 and 174 of the Criminal Offences Act.

The authority of this Court to impose any sentence on an accused person who is found guilty derives only from the Criminal Offences Act and any other relevant statute. It is therefore necessary to look to that act for the power to impose the sentence in this case, where the Defendant has been found guilty of murder.

As it appeared that counsel for the Defendant, in making his submission, had not taken into consideration the basic principles of statutory interpretation, it is as well to start by setting them out.

So far as this issue is concerned, the principles are very simple. The words concerned are to be given their plain and natural meaning in their context, looking at the Act as a whole. Only if there is some ambiguity should the Court then look at the mischief to which the Act is addressed.

While there are many refinements to these simple principles, and volumes have been written on the subject, the principles are set out in an accessible form and place in Halsbury’s Laws (4th Ed) Vol 44 Paras 855–858:

855. Statutes and other documents construed alike.

The canons of construction with regard to statutes do not, in effect, differ from those applicable to all documents.

856. Ascertaining the intention of Parliament.

The object of all interpretation of a written instrument is to discover the intention of the author as expressed in the instrument. The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. This intention, and therefore the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand, however strongly it may be suspected that the result does not represent the real intention of Parliament.

857. Construction where statute is unambiguous.

If the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of Parliament, and there is no need to look elsewhere to discover their intention or their meaning.

858. Construction where statute is ambiguous.

If the words of a statute are ambiguous, the intention of Parliament must be sought first in the statute itself, then in other legislation and contemporaneous circumstances and finally in the general rules laid down long ago, and often approved, namely by ascertaining (1) what was the common law before the making of the Act; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy Parliament resolved and appointed to cure the disease of the Commonwealth; and (4) the true reason of the remedy.

Although there have been some developments since these were written, the developments do not affect this application of the basic principles in this case.

Applying these basic principles in this case, the start point is section 24(1) of the Criminal Offences Act, which sets out the different kinds of punishment which may be inflicted, including at para (d) imprisonment.

Counsel for the Defendant referred to section 30, which gives the Court power to impose a fine instead of imprisonment. He did not actually submit that a fine should be imposed in this case and I do not consider that a fine would be remotely acceptable as a punishment in this case of murder, especially taking into account the remarks by the Court of Appeal in prosecution appeals against sentence in cases for the lesser offence of manslaughter, such as Rex v Holani [2001] TOCA 12; CA 06/01 (27 July 2001).

The Criminal Offences Act is noteworthy in that in each case in which a power to impose a sentence of imprisonment is given – except for section 91(1) dealing with the penalty for murder - it is expressed in the form “every person who commits .... shall be liable to imprisonment for any period not exceeding X years”. See for example section 93 (penalties for manslaughter) and the section referred to by Counsel for the Defendant, section 174 (unlawful entry into buildings by night).

Given that individual treatment of sentences of imprisonment, there is no general blanket power in the Criminal Offences Act for the Court to apply discretion and impose a lesser sentence of imprisonment. There is no need for such a general power, because for the sake of clarity it has been spelt out individually in each individual section where relevant.

Against all that context the wording of section 91(1) is strikingly different:

“Every person who commits murder shall be sentenced to death or to imprisonment for life:”

That is most certainly written in mandatory terms and as there is no mention of the Court having a discretion to impose a sentence of imprisonment for a lesser period than life, the only discretion the Court has under that subsection is whether to impose a sentence of death or one of life imprisonment.

Even looking at the context of the subsection itself, it is clear that, when Parliament enacted it, it was treating murder as a very serious offence, deserving the greatest penalty possible, that of a death sentence. But Parliament did give the Court an alternative, that of the second most severe sentence, ie life imprisonment, and in these circumstances, unless Parliament specifically stated that the sentence of imprisonment could be for less than life (as has been done in other sections referred to below), the Court cannot read such a further discretion into the subsection.

That is even in contrast to the penalty for attempted murder, set out in section 91(2):

“Every person who attempts to commit murder shall be liable to imprisonment for life or any less period.”

Importantly it also has to be noted that in section 33(3) the power of His Majesty the King to commute a sentence of death likewise gives no further discretion:

“(3) It shall be lawful for the King with the consent of the Privy Council to commute a sentence of death to imprisonment for life.”

It is further important to look at provisions for punishment of other offences which attract the death penalty. Section 44 deals with treason and provides (using the phrase “any period not exceeding life” derided by Counsel for the Defendant in his submission):

“shall on conviction thereof be sentenced to death or to imprisonment for any period not exceeding life ...”

In section 101, the penalty for incitement to commit suicide is expressed as “shall be liable to imprisonment for life or any less period”.

Therefore the conclusion which I draw looking at the plain and natural meaning of the words in section 91(1) in the context of the Criminal Offences Act as a whole is that the words mean exactly what they say and that the only 2 alternatives open to the Court when sentencing for murder are a sentence of death or a sentence of life imprisonment, with there being no discretion in the Court to substitute a shorter period of imprisonment.

It is important also to state that the task of the Court is to apply the law as passed by Parliament. It may well be that in the present age and changing circumstances, many years after the Criminal Offences Act was passed by Parliament in 1924, a sentence of imprisonment for life is intolerably long and inappropriate and that the Court should be given some discretion to impose a lengthy, but lesser period of imprisonment. But such a change is a task for Parliament and not this Court, which would be exceeding its constitutional position if it made such a change in the law.

I also wish to finish with a word about the position of a counsel making a submission such as this. He has of course every right to do so in his client’s interest, especially in a very serious case such as a murder case. But counsel is also an officer of the Court and has duties to the Court to further the administration of justice, as well as his own client. These duties to the Court mean that any submission must be fully thought out and backed up by appropriate authority, so that the Court is fully appraised of all the relevant law on the matter before it has to take a decision. As I have demonstrated above, the law is not complex and can be found simply in Halsbury’s Laws, available at the Law Society, and in the terms of the Criminal Offences Act itself. I very much regret that in this serious case I did not consider that the Defendant’s Counsel had fulfilled that duty to the Court and I very much hope that such a situation does not occur again.

Different kinds of punishment.

24. (1) The following punishments may be inflicted –

(a) payment of compensation;

(b) fine;

(c) whipping;

(d) imprisonment; and

(e) death.

(2) (a) It shall be lawful at the discretion of the Court, for the infliction of punishment (other than punishment by death) to be deferred for any period not exceeding 12 months from the date of conviction.

(b) Where punishment is deferred under the foregoing paragraph, it shall be lawful for sentence to be passed on the first convenient day after the expiration of the period of deferment ordered by the Court, save that any person who is convicted of a further offence after the court has deferred sentence shall be sentenced for the offence for which sentence was deferred at the same time as he is being sentenced for that further offence.

(Inserted by Act 19 of 1978 and Amended by Act 9 of 1987.)

(3) (a) It shall be lawful for the Court when imposing a sentence of imprisonment to suspend the whole or part of such sentence for any period up to 3 years;

(b) Such sentence will be conditional on the offender not being convicted of an offence punishable by imprisonment during the period of suspension;

(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.

(Inserted by Act 9 of 1987.)

Power to impose fine instead of imprisonment.

30. Where any person is convicted of any offence punishable by imprisonment such person may be sentenced to pay a fine in lieu thereof.

(Substituted by Act 13 of 1978 and Amended by Act 26 of 1984.)

Power to commute.

(3) It shall be lawful for the King with the consent of the Privy Council to commute a sentence of death to imprisonment for life.

Treason

44. Every person who -

(a) levies or conspires to levy war against the King or the Government; or

(b) attempts to assassinate the King or the heir to the throne; or

(c) attempts to depose the King; or

(d) joins in a rebellion against the King; or

(e) incites any person to assassinate or depose the King or to assassinate the heir to the throne

is guilty of treason and shall on conviction thereof be sentenced to death or to imprisonment for any period not exceeding life and his lands and other property shall be forfeit to the Crown.

Concealment of treason.

45. Every person who being aware of any intended treason omits to give information thereof to the Minister of Police or to the Governor of the district or the Government representative for the district shall be liable to imprisonment for any period not exceeding 7 years.

Penalty for murder.

91. (1) Every person who commits murder shall be sentenced to death or to imprisonment for life:

Provided that sentence of death shall not be pronounced on or recorded against any person under the age of 15 years but in lieu of such punishment the Court shall sentence such person to be detained during His Majesty's pleasure and such person shall thereupon be liable to be detained in such place and under such conditions as the Privy Council may direct and whilst so detained shall be deemed to be in legal custody.

(2) Every person who attempts to commit murder shall be liable to imprisonment for life or any less period.

Manslaughter.

92. Culpable homicide which does not amount to murder is manslaughter and if such homicide was caused by negligence the offence is only manslaughter by negligence.

Penalties for manslaughter.

93. Every person who commits manslaughter by negligence shall be liable to imprisonment for any period not exceeding 10 years and every person who commits manslaughter in any other way than by negligence shall be liable to imprisonment for any period not exceeding 15 years.

Inciting to commit suicide.

101. Every person shall be liable to imprisonment for life or any less period who –

(a) incites another person to commit suicide if such other person actually commits suicide in consequence thereof; or

(b) assists any person in committing suicide.

Unlawful entry into buildings by night.

174. Every person who enters or is found by night in any dwelling house, shop or other building of any kind whatsoever without lawful justification shall be liable to imprisonment for any period not exceeding 5 years.

(Substituted by Act 9 of 1987.)

Rex v Holani - Majority [2001] TOCA 12; CA 06 2001 (27th July, 2001)

The sentence

[11] The judge referred to the circumstances of the offending, accepting that what occurred was the fault of the respondent, and that it was something he would have to live with for the rest of his life. It was inexplicable that the respondent was not able to see that drinking to the extent that he had; knowing that he was going to drive, was a straight out recipe for disaster.

[12] He accepted that the offence was totally out of character and that the respondent was filled with remorse. The judge was influenced by what he regarded as a remarkable reference from the family. He said that it had swung the pendulum in the favour of the respondent.

[13] The judge observed that the respondent had an enormous amount to offer the community through his teaching. He expressed the hope that the respondent would take the opportunity he was being given to get the message across to the young people he taught and other young people about the dangers of drinking and driving. The judge made these observations apparently unaware that the result of the respondent's conviction for this offence is that his opportunities to do so will be severely limited. He was satisfied that the respondent would learn from what had occurred and that a suspended sentence would have a beneficial effect. It was for those reasons that he decided that it was appropriate to suspend the whole of the sentence for two years.

Decision

[16] In Tofavaha this court considered the appropriate approach to sentencing for the offence of manslaughter by negligence in circumstances similar to the present. It said:

"Whatever sympathy the judge may feel for the offender, he cannot escape the fact that an innocent young woman has lost her life as a result of the respondent's actions. The law has always regarded the killing of another person as extremely serious and the penalty must reflect that. There must be a place for sympathy when a court is passing sentence, but it cannot be allowed to supplant the duty to order a penalty appropriate to the facts of the offence."

[17] In that case the respondent, who was a young prison officer of some distinction, had caused the death of a young woman in a motor accident resulting from the respondent driving a motor vehicle while intoxicated. The judge considered an appropriate sentence to be two years imprisonment but that, because of significant mitigating factors, the sentence should be suspended for the whole of the term. The appeal by the Crown was allowed, the sentence was quashed, and a sentence of two years imprisonment without any suspension was substituted.

[18] Similar considerations apply to the present appeal. The mitigating factors to which we have referred above should undoubtedly affect both the term and the nature of the sentence. We are satisfied that in the present case some suspension of the sentence is appropriate.

[21] We have reached the conclusion that the sentencing judge, in suspending the sentence for the whole of the term of imprisonment, imposed a sentence that was clearly inappropriate. He placed too much weight on the mitigating factors and insufficient weight on the seriousness of the offence, and the need for a sentence to demonstrate clearly and beyond doubt to the community that where serious or fatal injuries are caused by persons driving when intoxicated, a relatively severe penalty must be imposed. The order to suspend the sentence for the whole of the term is inconsistent with sentences such as that imposed by this court in Misinale.

Rex v Tofavaha [2000] TOCA 2; CA 11 2000 (21st July, 2000)

Whatever sympathy the judge may feel for the offender, he cannot escape the fact that an innocent young woman has lost her life as a result of this man's actions. The law has always regarded the killing of another person as extremely serious and the penalty must reflect that. There is always a place for sympathy when a court is passing sentence but it cannot be allowed to supplant the duty to pass a penalty appropriate to the facts of the offence.

The learned judge was right to emphasise that this young man has made the most of his talents and his life up to this point and that this offence has placed that in jeopardy. However that is not a reason for avoiding the consequences of his criminality. That same background should have made him realise more than most people the consequences of his actions that night yet he behaved in a grossly irresponsible manner. Any person who chooses to drink and then to drive whilst affected by alcohol and kills must realise that he will go to prison.

(iii) General Principles of Construction Halsbury’s Laws (4th Ed) Vol 44

855. Statutes and other documents construed alike.

The canons of construction with regard to statutes do not, in effect, differ from those applicable to all documents¹.

¹ Butler and Baker's Case [1591] EngR 2; (1591) 3 Co Rep 25a at 27b; Grey v Pearson [1857] EngR 335; (1857) 6 HL Cas 61 at 106; Caledonian Rly Co v North British Rly Co (188 I) 6 App Cas I 14 at 13 I, HL; Curtis v Stovin [1889] UKLawRpKQB 25; (1889) 22 QBD 513 at 517, CA; Lamplaugh v Norton [1889] UKLawRpKQB 41; (1889) 22 QBD 452 at 459, CA, per Bowen LJ; Hawke v Dunn [1897] UKLawRpKQB 42; [1897] 1 QB 579 at 586, DC. As to the construction of documents, see DEEDS, vol 12, paras. 1459 et seq.

856. Ascertaining the intention of Parliament.

The object of all interpretation of a written instrument is to discover the intention of the author as expressed in the instrument ¹. The dominant purpose in construing a statute is to ascertain the intention of the legislature ² as expressed in the statute, considering it as a whole and in its context ³. This intention, and therefore the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand, however strongly it may be suspected that the result does not represent the real intention of Parliament ⁴.

¹ See further DEEDS, vol 12, para. 1459.

² Viscountess Rhondda's Claim [1922] 2 AC 339 at 397, HL.

³ Magor and St Mellons RDC v Newport Corpn [1952] AC 189 at 191, [1951] 2 All ER 839 at 841,: HL; Re Newspaper Proprietors' Agreement (1963) LR 4 RP 361 at 388, [1964] 1 All ER 55 at 59, HL, per Lord Evershed; McEldowney v Forde [1971] AC 612, [1969] 2 All ER 1039, HL; Kennedy v Spratt [1972] AC 83, [1971] 1 All ER 805, HL; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffinburg AG [1975] UKHL 2; [1975] AC 591, [1975] 1 All ER 810, HL; Daymond v South West Water Authority [1976] AC 609, [1976] 1 All ER 39, HL; Farrell v Alexander [1976] UKHL 5; [1977] AC 59, [1976] 2 All ER 721, HL; NWL Ltd v Woods [1979] 3 All ER 614 at 630, [1979] 1 WLR 1294 at 131 I, HL, per Lord Scarman. See also para. 871, post.

⁴ Co Litt 381b; Salomon v A. Salomon & Co Ltd [1897] AC 22 at 38, HL; Commonwealth of Australia v Bank of New South Wales [1950] AC 235 at 3°7, [1949) 2 All ER 755 at q69, PC; IRC v Hinchy [1960] AC 748 at 767, [1960] 1 All ER 505 at 512, HL; Re Wykes, Riddington v Spencer [1961] Ch 229 at 243, [1961] 1 All ER 470 at 476; Westminster Bank Ltd v Zang [1966] AC 182 at 222, [1966] 1 All ER 114 at 120, HL, per Lord Reid; Victoria Sporting Club Ltd v Hannam [1970] AC 55 at 72, [1969] 1 All ER 369 at 373, HL, per Lord Reid; Daymond v South West Water Authority [1976] AC 609, [1976] 1 All ER 39, HL; Stock v Frank Jones (Tipton) Ltd [1978] 1 All ER 948, [1978] 1 WLR 23 I, HL; Wentworth Securities Ltd v Jones [1980] AC 74, sub nom. Jones v Wrotham Park Settled Estates [1979] 1 All ER 286, HI. See also Lincoln College's Case [1595] EngR 8; (1595) 3 Co Rep 58b at 59b; Logan v Earl of Courtown [1851] EngR 123; (1850) 13 Beav 22 at 29; Barrow v Wadkin (No. 2) [1857] EngR 788; (1857) 24 Beav 327 at 330; Hack v London Provident Building Society [1883] UKLawRpCh 61; (1883) 23 Ch D 103 at 108, CA; Re Toomer, ex parte Blaiberg [1883] UKLawRpCh 75; (1883) 23 Ch D 254 at 258, CA; Hobbs v Winchester Corpn [1910] UKLawRpKQB 108; [1910] 2 KB 471 at 479, CA; IRC v Herbert [1913] UKLawRpAC 18; [1913] AC 326 at 332, HL.

857. Construction where statute is unambiguous.

If the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of Parliament, and there is no need to look elsewhere to discover their intention or their meaning ¹,

¹ Sussex Peerage Case [1844] EngR 822; (1844) 11 Cl & Fin 85 at 143, HL; Fordyce v Bridges [1847] EngR 287; (1847) 1 HL Cas 1 at 4; Philpott v President etc of St George's Hospital [1857] EngR 793; (1857) 6 HL Cas 338 at 349; The Argos (Cargo ex), Gaudet v Brown [1872] UKLawRpCP 19; (1873) LR 5 PC 134 at 153; Hornsey Local Board v Monarch Investment Building Society [1889] UKLawRpKQB 163; (1889) 24 QBD 1 at 5, CA; London and North-Western Rly Co v Evans [1892] UKLawRpCh 152; [1893] 1 Ch 16 at 27, CA; R v Titterton [1895] UKLawRpKQB 83; [1895] 2 QB 61 at 67, DC; Vacher & Sons Ltd v London Society of Compositors [1913] AC 107 at 117, 118 HL; Westminster Bank Ltd v Zang [1966] AC 182 at 122, [1966] 1 All ER 114 at 120, HL, per Lord Reid. See also paras. 863 et seq., post.

858. Construction where statute is ambiguous.

If the words of a statute are ambiguous, the intention of Parliament must be sought first in the statute itself ¹, then in other legislation ² and contemporaneous circumstances ³ and finally in the general rules laid down long ago ⁴, and often approved ⁵, namely by ascertaining (1) what was the common law before the making of the Act ⁶; (2) what was the mischief and defect for which the common law did not provide ⁷; (3) what remedy Parliament resolved and appointed to cure the disease of the Commonwealth; and (4) the true reason of the remedy ⁸.

¹ See paras. 871 et seq., post.

² See paras. 885 et eq" post.

³ See paras. 898 et seq., post.

⁴ Heydon's Case [1584] EngR 9; (1584) 3 Co Rep 7aaqb.

⁵ Salkeld v Johnson [1848] EngR 498; (1848) 2 Exch 256 at 273; River Wear Comrs v Adamson (1877) 2 App Cas 743 at 764, HL; Re Mayfair Property Co, Bartlett v Mayfair Property Co [1898] UKLawRpCh 55; [1898] 2 Ch 28 at 35, CA.

⁶ See the cases cited in para. 899, note 4, post.

⁷ According to the reports of older cases, great pains were taken to ascertain the intention of Parliament: see 4 Co Inst 324 et seq.; Willion v Berkley (1561) 1 Plowd 227 at 23 I; Stowel v Lord Zouch (1569) 1 Plowd 353 at 366; Byston v Studd (1574) 2 Plowd 459 at 463; Butler and Baker's Case [1591] EngR 2; (1591) 3 Co Rep 25a at 27b; Magdalen College, Cambridge, Case (1615) II Co Rep 6qb at 73b. The rule is still frequently adverted to by the courts: see Hawkins v Gathercole (1855) 6 GM & G 1 at 2l; Hughes v Chester and Holyhead Rly Co (1861) 1 Drew & Sm 524 (on appeal rDe G F &] 352 at 362); Phillips v Phillips (1866) L RIP & D 169 at 173; Bell v Holtby (1873) LR IS Eq 178 at 189; River Wear Comrs v Adamson (1877) 2 App Cas 743 at 765, HL; Preme v Clement [1881] UKLawRpCh 18; (1881) 18 Ch D 499 at 508; Caledonian Rly Co v North British Rly Co (1881) 6 App Cas 114 at 122, HL; Bradlaugh v Clarke (1883) 8 App Cas 354 at 372, HL; Conway v Wade [1908] UKLawRpKQB 130; [1908] 2 KB 844 at 853, CA (revsd. on another point [1909] UKLawRpAC 44; [1909] AC 506, HL); A-G for Northern Ireland v Gallagher [1963] AC 349 at 366, [1961] 3 All ER 299 at 303, HL, per Lord Reid; Gartside v IRC [1967] UKHL 6; [1968] AC 553 at 612[1967] UKHL 6; , [1968] 1 All ER 121 at IJI, HL, per Lord Reid; Customs and Excise Comrs v Top Ten Promotions Ltd [1969] 3 All ER 39 at 90, [1969] 1 WLR 1163 at 1171, HL, per Lord Upjohn; Kennedy v Spratt [1972] AC 83, [1971] 1 All ER 805, HL; Cheng v Governor of Pentonville Prison [1973] AC 931 at 952, [1973] 2 All ER 204 at 212, HL, per Lord Simon of Glaisdale (dissenting); Applin v Race Relations Board [1974] UKHL 3; [1975] AC 259 at 286[1974] UKHL 3; , [1974] 2 All ER 73 at 89, HL, per Lord Simon of Glaisdale; Maunsell v Olins [1975] AC 373, [1975] 1 All ER 16, HL; Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] UKHL 2; [1975] AC 591, [1975] 1 All ER 810, HL. See also the cases cited in para. 860, note 2, post.

⁸ Pardoe v Bingham [1869] UKLawRpCh 29; (1869) 4 Ch App 735 at 740; Preme v Clement [1881] UKLawRpCh 18; (1881) 18 Ch D 499 at 508; Mersey Steel and Iron Co v Naylor, Benzon & Co [1882] UKLawRpKQB 105; (1882) 9 QBD 648 at 660, CA; Lion Mutual Marine Insurance Association Ltd v Tucker [1883] UKLawRpKQB 269; (1883) 12 QBD 176 at 186, CA; The Dunelm [1884] UKLawRpPro 42; (1884) 9 PD 164 at 171, CA; Reigate RDC v Sutton District Water Co (1908) 99 LT 168, DC (on appeal (1909) 78 LJKB 315, CA); and see the cases cited in note 7, supra. This statement was cited with approval by Walton] in Universal Corpn v Five Ways Properties Ltd [1978] 3 All ER 113I at 1136 (revsd. on the ground that the statute was not ambiguous [1979] 1 All ER 552, CA). For general remarks about the hierarchy of rules of construction, see Ealing London Borough Council v Race Relations Board [1971] UKHL 3; [1972] AC 342 at 361, [1972] 1 All ER 105 at 115, HL, per Lord Simon of Glaisdale.

From Pepper v Hart [1993] 1 All ER (HL) at 62:

In Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] UKHL 2; [1975] 1 All ER 810 at 814-815[1975] UKHL 2; , [1975] AC 591 at 613-615 Lord Reid said:

'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said. ... I have more than once drawn attention to the practical difficulties ... but the difficulty goes deeper. The questions which give rise to debate are rarely those which later have to be decided by the courts. One might take the views of the promoters of a Bill as an indication of the intention of Parliament but any view the promoters may have had about questions which later come before the court will not often appear in Hansard and often those questions have never occurred to the promoters. At best we might get material from which a more or less dubious inference might be drawn as to what the promoters intended or would have intended if they had thought about the matter, and it would, I think, generally be dangerous to attach weight to what some other members of either House may have said ... in my view, our best course is to adhere to present practice.'

In the same case Lord Wilberforce said ([1975] 1 All ER 810 at 828[1975] UKHL 2; , [1975] AC 591 at 629):

'The second [reason] is one of constitutional principle. Legislation in England is passed by Parliament, and put in the form of written words. This legislation is given legal effect on subjects by virtue of judicial decision, and it is the function of the courts to say what the application of the words used to particular cases or individuals is to be ... it would be a degradation of that process if the courts were to be merely a reflecting mirror of what some other interpretation agency might say.'

In Fothergill v Monarch Airlines Ltd [1980] UKHL 6; [1980] 2 All ER 696 at 705[1980] UKHL 6; , [1981] AC 251 at 279 Lord Diplock said:

'The constitutional function performed by courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining "the intention of Parliament"; but what this metaphor, though convenient, omits to take into account is that the court, when acting in its interpretative role, as well as when it is engaged in reviewing the legality of administrative action, is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding upon him and enforceable by the executive power of the state. Elementary justice or ... the need for legal certainty, demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible.'