Rex v Vete [2007] TOSC 43; CR 112-2001 (26 September 2007)

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

NO. CR.112 of 2001

REX

-V-

SIAOSI HALAHOLO VETE

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel: Mr Sisifa for the Crown and
Mr Tu’utafaiva for the accused

Dates of written submissions : 16 and 30 August 2007.
Date of Ruling : 26 September 2007.

RULING

Background

[1] On 8 September 2004, after a judge alone trial before McElrea J. in the Supreme Court, Mr Vete was sentenced on two charges arising out of the attempted robbery of a Chinese man on 9 March 2001. The charges upon which the accused had been found guilty were assault with intent to rob and possession of arms without a licence. The "arm" in question was a .22 calibre rifle. The sentence imposed by this Court was four years imprisonment on each count. The two sentences were concurrent making a total term of imprisonment of four years.

[2] Of the four-year imprisonment term, the Judge ordered that after the accused had served two years of the sentence, the balance would be suspended for a period of two years subject to the condition that for the period of his suspended sentence, the accused would be under the supervision of a probation officer and he was also required to undertake the Salvation Army programme for drug and alcohol abuse.

[3] On 11 April 2007, i.e. during the period of his suspended sentence, the accused was found at Fasi in possession of illicit drugs, namely cannabis. He subsequently pleaded guilty in the Magistrate's Court to a charge of possession of two plastic bags of cannabis. Upon sentencing on 20 July 2007, the police prosecutor wrongly informed the Magistrate that the accused had no previous convictions. No mention was, therefore, made of the suspended sentence and the accused was simply fined $500, in default three months imprisonment.

[4] The conviction, however, received publicity at the time and upon learning of the case and the sentence that had been imposed in the Magistrate's Court, I caused an arrest warrant to be issued for the accused and I sought a report on the case from the Chief Police Magistrate. That report disclosed the information set out above.

[5] When the accused subsequently appeared before me under arrest, he was represented by Mr Tu'utafaiva. In response to my invitation to show cause as to why the two-year suspended sentence should not be immediately invoked, defence counsel challenged the jurisdiction of this Court to deal with the matter. At that point, I invited both counsel to present written submissions in relation to the legal issue that had been raised and I am obliged to them for their co-operation in this regard.

Submissions

[6] The essence of Mr Tu'utafaiva's submissions were that as "Court" is defined in the Criminal Offences (Cap 18) as "the Supreme Court or a Magistrate's Court" in practice both the Supreme Court and the Magistrate's Court may pass suspended sentences of imprisonment and there is nothing in the legislation to say that an inferior court cannot deal with the breach of a suspended sentence that was ordered by a superior court. On the contrary counsel submitted, section 24 (3) (c) of the Criminal Offences Act gives the court in which the accused is dealt with in respect of the second offence the jurisdiction to deal with any suspended sentence previously imposed.

[7] Mr Tu'utafaiva's submission under this head centered around the wording of section 24 (3) (c) and, in particular, the use of the words "thereupon" and "in addition". To understand the context, I set out the whole of section 24 (3).

"24. (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.

(d) The Court may also impose conditions during the period of suspension of sentence, including a requirement that supervision by a probation officer or another responsible member of the community takes place. A breach of such conditions may, upon application, result in the rescission of the suspensions order.

(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."

(counsel's emphasis)

[8] Mr Tu'utafaiva noted that there is no procedure prescribed for sending an offender from the Magistrate's Court to the Supreme Court to be dealt with if the earlier suspended sentence had been imposed by the Supreme Court and vice versa i.e. there is no procedure requiring the Supreme Court to refer an offender back to the Magistrate's Court to be dealt with if an earlier suspended sentence had been imposed in that court. Counsel summarised his submissions as follows:

"As a matter of convenience and good sense it is submitted that Parliament must have intended to give the jurisdiction to the Court passing the sentence on the subsequent offence to sentence the offender in respect of the suspended sentence."

[9] Mr Sisifa for the Crown accepted that the legislation gives both the Supreme Court and the Magistrate's Court jurisdiction to impose suspended sentences of imprisonment but he relied on the expression "the Court" in subsection (e) of section 24 (3) and submitted that such wording made it clear that the Court empowered to assess whether there were special circumstances was "the Court", i.e. the Court that imposed the original suspended sentence.

[10] Crown counsel submitted that the proper procedure upon learning of a current suspended sentence outstanding in the Supreme Court, was for the presiding magistrate to refer the accused directly to the Supreme Court for sentencing. In the present case, of course, the learned Magistrate did not become aware of the outstanding suspended sentence until after he had disposed of the case.

Discussion

[11] In other jurisdictions the relevant legislation clearly does provide that an inferior court cannot deal with a breach of suspended sentence that was ordered by a superior court. Thus, for example, section 31 of the Penal Code in Fiji provides:

"31. (1) An offender shall be dealt with in respect of a suspended sentence by the Supreme Court or, where the sentence was passed by a Magistrate's Court, by any Magistrate's Court before which he appears or is brought.

(2) Where an offender is convicted by a Magistrate's Court of an offence punishable with imprisonment and the court is satisfied that the offence was committed during the operational period of a suspended sentence passed by the Supreme Court –

(a) the Court may, if it thinks fit, commit him in custody or on appeal to the Supreme Court; and

(b) if it does not, shall give written notice of the conviction to the Clerk of the Court by which the suspended sentence is passed."

The section was explained by the Court of Appeal in Liu v State [1998] FJCA 8 as follows:

"We take this provision to mean that when the High Court has before it an offender for sentencing it can deal with any suspended sentence previously imposed on the offender: a Magistrate's Court, in a like situation, cannot deal with a suspended sentence unless that sentence had been imposed in a Magistrate's Court."

[12] A number of English decisions have recommended as a rule of practice that when an inferior court has before it an offence which was committed in breach of a suspended sentence ordered by a superior court, the inferior court ought to commit the offender to the superior court so that both matters can be dealt with by the superior court - see R v Hamilton (1984) 6 Cr App R (S) 451 and R v Stewart (1984) 6 Cr App R (S) 166. The English Court of Appeal in R v Tarry [1970] 2 QBE 561, 565 stated:

"The court would only add this: a magistrate's' court convicting a defendant of an offence committed during an operational period in respect of a suspended sentence imposed at quarter sessions or assize cannot itself bring the suspended sentence into operation."

[13] In Queensland, section 146 of the Penalties and Sentences Act 1992 (QLD) provides that a Magistrates Court may not deal with a breach of suspended imprisonment which was ordered by a superior court. In A-G v Holley [1996] QCA 480, Fryberg J. stated:

"A feature of s.146 is the policy clearly spelled out in it that an offender who commits a breach offence must be dealt with in respect of the suspended sentence by a court of either like jurisdiction to or higher jurisdiction than the Court which imposed the suspended sentence."

[14] The process in England and Wales is now governed by the Criminal Justice Act 2003, which is prescriptive as to who has jurisdiction (and in what circumstances) in respect of breaches of suspended sentences. In brief, the Crown Court can make a direction that if the conditions of the suspended sentence are breached that matter can be dealt with by the Magistrates Court, but if it fails to do so, only the Crown Court will have jurisdiction. When there is a further conviction, there is no such jurisdiction, and the Crown Court alone has jurisdiction over suspended sentences originally imposed by that Court.

[15] Mr Tu'utafaiva relied upon the use of the word "thereupon" in subsection (3) (c) and, as I understand his submission, contended that as "thereupon" means "immediately" an accused person upon conviction for the second offence must at the same time be sentenced to serve the term of his suspended sentence. In the context of the present case, that would mean that if the suspended sentence was to be invoked at all then the magistrate would have had to have done that at the same time that he imposed the sentence on the drug charge.

[16] Stroud's Judicial Journal, 4th ed Vol 5 (1974) notes that whilst in its primary sense "thereupon" is the equivalent of "immediately", "in another context, "thereupon" was regarded as the equivalent of "in consequence of" ( Groux Co. v Cooper 8 C.B.N.S. 814." The Shorter Oxford English Dictionary, 5th ed (2005) gives three meanings for "thereupon" the third states: "in consequence of that; on that subject or matter; with reference to that." I am satisfied that in the context of its use in section 24 (3) (c) the word "thereupon" is to be given this latter meaning. In other words, in terms of the present case, the position is that in consequence of the second conviction, the earlier suspended sentence is automatically invoked and will be enforced by the court unless the judge can be persuaded that because of the existence of "special circumstances" in terms of subsection (3) (e), the offender should be released from its operation.

[17] In Rex v 'Ulu'ave [2001] TOSC 46, Ward C.J said it would "appear" to be beyond the jurisdiction of the Magistrate's Court to implement a suspended sentence which was originally ordered by the Supreme Court. In that case the accused was being sentenced on a manslaughter charge. His Honour, in considering the accused's list of previous convictions and sentences, commented in relation to a suspended sentence:

"What concerns this court is that it appears the magistrate purported to implement the suspended sentence ordered by the Supreme Court and also to make it concurrent giving a total of 18 months imprisonment. That would appear to be outside the jurisdiction of the Magistrate and possibly in breach of the terms of section 24 (3) (e). It is also relevant that the Supreme Court file has nothing recorded in it to show that any action has been taken on the suspended sentence order leaving the possibility of an inadvertent further order. I do not consider, however, that it would be a proper step for me now to take any action on that order or on my original suspended sentence. I shall leave it to the prosecution to decide whether and how to appeal the magistrate's order. As it involves a Supreme Court order, that may have to be by way of appeal to the Court of Appeal but I make no ruling on that point."

[18] Although the above passage was obiter, in my view it accords with the proper construction of the provision in question and the commonsense of the situation. It is only the Supreme Court that has the power to invoke a suspended sentence which it has previously imposed. It is not necessary for me in this decision to rule on the other point raised by Mr Tu'utafaiva, namely, whether the Magistrate's Court has exclusive jurisdiction to invoke a suspended sentence it has imposed. Without hearing argument on the issue, however, it would seem to me that, as the Superior Court, the Supreme Court would have power to impose a sentence for a subsequent offence as well as invoking a suspended sentence imposed in the Magistrate's Court.

Conclusions

[19] For the foregoing reasons, my conclusion in the instant case is that this Court alone has the power to invoke the suspended sentence in question. Counsel will now be advised of a fixture for hearing submissions as to whether a case can be made out for the existence of "special circumstances" in terms of section 24 (3) (e). In this regard, counsel’s attention is respectfully drawn to the authorities in Archbold setting out the general principles relating to activation and in particular the comments: "the principal reason for not activating a suspended sentence is the relative triviality of the subsequent offence" and "the fact that the later offence is of a different kind from the offence for which the suspended sentence was imposed is not in itself a ground for non-activation." - p. 5-196.

[20] In conclusion I need to make one further important observation about the sentence imposed by the magistrate in relation to the drug offence. In 2003 Tonga passed the Illicit Drugs Control Act which, outside capital punishment situations, provides one of the most severest sentencing regimes in the developed world for drug offences. The maximum sentence for importing or exporting any illicit drug is a fine of $1,000,000 or 30 years imprisonment or both. The maximum sentence for any drug offence is imprisonment for 25 years or a fine of $750,000 or both. The legislation does not distinguish between the type or quantity of drugs involved. On 1 June 2001 the Chief Justice, pre-empting the passing of the proposed new legislation, had adopted the rather unusual course of issuing a "Press Release" which effectively provided that the sentence for any drug offence would be one of imprisonment and the only issue to be determined upon sentencing was whether all or part of such sentence would be suspended.

[21] Against that background, I find it incongruous that any magistrate these days could impose a sentence of a fine alone in relation to a drug offence. Since the issue of the Press Release referred to above, this Court has invariably imposed a sentence of imprisonment for any drug offence although, where it is a first offence, unless the offending is of a serious nature, the sentence will be suspended. This Court continues to follow that procedure and accused persons today are invariably given that same message spelt out in the 2001 press release. There is no excuse for magistrates to depart from that procedure and in future I would expect them to follow the same approach as that applied in this Court when it comes to sentencing for drug offences.

NUKU'ALOFA: 26 SEPTEMBER 2007.

CHIEF JUSTICE