Police v Tapueluelu [2015] TOSC 17; AM27 of 2014 (21 May 2015)

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

AM 27 of 2014

BETWEEN:

POLICE
APPELLANT

AND:

TANIELA TAPUELUELU
RESPONDENT

Hearing: 14 May 2015.
Judgment: 21 May 2015.
Appearances: Mrs. E. Langi for the appellant
Mr. 'O. Pouono for the respondent

RULING

[1] Mr. Tapueluelu was charged with two offences under Section 107 of the Criminal Offences Act that he did cause grievous bodily harm to Penisimani Pasese and Tomasi Talanoa Taufa on 24 April 2014 at Vava'u.

[2] Mr. Tapueluelu pleaded guilty to both charges before a Police Magistrate at Nuku'alofa and on 28 August 2014 he was discharged without conviction under Section 204 of the Criminal Offences Act. The Crown has appealed from the Magistrate's decision and this ruling deals with that appeal.

The facts

[3] Mr. Tapueluelu is according to his Counsel, about 55 years old. He is a senior Police Officer with over 30 years experience and has no previous convictions.

[4] On 24 April 2014 Mr. Tapueluelu was at Vava'u where I understand he and his wife have a store. His wife's cellphone went missing and Mr. Tapueluelu decided that it must have been taken by Penisimani Pasese and Tomasi Talanoa Taufa who had recently been to the store. I understand that they were aged 14 and 16 years old respectively at the time.

[5] Mr. Tapueluelu and another person (who I understand may have been his son) went out and searched for the two youths. They first came across Tomasi Taufa and drove him to the parking lot of the local Police Station. He was questioned about the cellphone and when he denied knowledge of what had happened to it Mr. Tapueluelu assaulted him by slapping him around the head and then punching him in the right eye. There is a medical report which describes injuries consistent with such an attack.

[6] The three then drove and located Penisimani Pasese and he too was driven to the parking lot of the Police Station. Penisimani Pasese also denied any knowledge of what had happened to the cellphone and Mr. Tapueluelu then administered a more serious beating to him which involved repeated punching and kicking him while he was on the ground. In his statement Penisimani' said he blacked out and that his head was hit with a pole. It was fortunate that another senior Police Officer arrived on the scene at this time and put an end to the assault.

[7] I should add at this point two important points. First, it was not suggested to me that either victim had taken the cellphone and it seems Mr. Tapueluelu jumped to a most tragic and incorrect conclusion. Secondly, both victims suffered injuries but not of a permanent nature.

[8] Before the Magistrate Mr. Tapueluelu elected to have the charges dealt with under the enhanced jurisdiction of that Court and gave early notice of his intention to plead guilty and seek a discharge without conviction. There were a number of adjournments before the hearing on 28 August 2014. At that hearing Mr. Tapueluelu was represented by Mr. Pouono and Crown Counsel was also present. I have seen a record of the sentencing by the Magistrate with which no issue has been taken by either side. His sentencing remarks are very brief. The record shows that the Magistrate stated that he had received a call from "the victims" advising that a settlement had been reached with Mr. Tapueluelu and asking for the case be cancelled because "they are related and living as a family with the defendant". The Magistrate said:

"Therefore, I sentence this case:

The accused is therefore discharged without conviction under Section 204. The victims had contacted me that they are satisfied and there is some help from the defendants to them."

[9] The Magistrate should not, of course, have been speaking with the victims outside of a Court hearing with all parties present. The Magistrate did have before him a letter dated 18 August 2014 signed by the two victims and Tomasi Taufa's mother which sought leniency for Mr. Tapueluelu as follows:

"It is true, there was some sorrow but now there has been a settlement and apologies were made and some money was given to one of the victims, Tomasi Talanoa Taufa ($200). We're grateful for we are related but I sincerely hope this problem has taught Taniela to be more careful in carrying out his duties as a Police officer of Tonga.

I plead for your mercy and to give him another chance for his work based on making a living for his family. And I sincerely hope his methods would be better in carrying out his duties to the people and the country of Tupou."

The statutory provision

[10] Section 204 provides:

204 Discharge without conviction

(1) Where a court is of the opinion, having regard to the circumstances including the nature of the offence and character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate, it may make an order discharging him absolutely or alternatively discharging him subject to the condition that he commits no offence during such period, not exceeding 3 years from the date of the order, as may be specified therein.

(2) A discharge under this section is deemed to be an acquittal.

(3) A court discharging an offender under this section may-

(a) make an order for payment of costs or the restitution of any property; or

(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—

(i) loss of, or damage to, property;

(ii) emotional harm; or

(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.

[11] Before deciding to exercise its discretion and make an order discharging an accused without conviction the Court must undertake a process of analysis and reasoning as follows:

[11.1] First, the Court has to consider all the circumstances of the case including the nature of the offence and character of the offender; and

[11.2] Having done so, the Court must form the view that by reason of those circumstances it is inexpedient to inflict punishment upon the accused; and

[11.3] That the making of a probation order is not appropriate.

[12] It is quite clear from the Magistrate's sentencing remarks that he gave inadequate consideration to the matters in paragraphs [11.1] and [11.2] (without any reference to the terms of the Act or relevant principles) and no consideration at all to the matter in paragraph [11.3]. Accordingly, he acted on wrong principle.

The Court's approach

[13] As to the approach that the Court should take to the question of whether it is inexpedient to inflict punishment, this involves a balancing of the gravity of the offending by reference to the character and circumstances of the offender and the facts of the particular case against the direct and indirect consequences of a conviction. The Court must determine if the indirect and direct consequences of a conviction would be out of all proportion to the gravity of the offending. In arriving at a view the facts of past cases are of assistance but no two cases are likely to be exactly the same.

[14] R v Tu'iha'ateiho (CR 116 of 2013) was a case where the accused was facing firearm charges and where a discharge without conviction was sought on the grounds that the accused was a Noble with responsibilities to the Realm and the community and a conviction might have impaired his ability to travel. Cato. J referred with approval to a decision of Richardson J in Fisheries Inspector v Turner [1978] 2 NZLR 233 where the learned judge observed:

In considering the exercise of discretion under section 42 the Court is required to balance all the relevant public interest considerations as they apply in the particular case.

and

It must have regard to the seriousness of the offence and to the gravity with which it is viewed by Parliament, to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on his conviction; and indirect consequences. And if the direct and indirect consequences of a conviction are, in the Court's judgment, out of all proportion to the gravity of the offence, it is proper for a discharge...to be given.

and

The jurisdiction to discharge under section 42 is one that must be exercised sparingly."

[14] In R v Tu'iha'ateiho, Cato J refused a discharge without conviction because he considered that the licensing and security of firearms was a matter of great concern and that Parliament had made its intent plain by providing for imprisonment as the appropriate penalty. He considered it would send the wrong message to the Tongan community if persons could avoid conviction for possession of firearms by an appeal to the avoidance of possible travel restrictions. It followed that the public interest factors and the need to impose a conviction outweighed the inconvenience and hardship that would be suffered by the accused.

The Crown's position

[16] The position of the Crown is that the discharge without conviction granted to Mr. Tapueluelu was a manifestly inadequate response to his offending. The Crown said that the Magistrate was wrong because he gave inadequate weight to the aggravating features of the case, too much weight to mitigating factors and failed to recognise the seriousness of the charges and the circumstances of the offending.

[17] The Crown submitted that the particular aggravating features included that Mr. Tapueluelu is an experienced senior Police Officer, that he assaulted two members of the public and they sustained serious injuries, that he used his position as a Police Officer to facilitate the assault and that there was a serious breach of the trust the community puts in him as a Police Officer. The Crown also expressed the need for deterrence. It was acknowledged that Mr. Tapueluelu was entitled to credit for his early guilty plea, the payment of compensation, the fact that he was a first time offender and for his genuine remorse but, it was submitted, none of that justified discharging him.

[18] I was referred to R v Mafi (CR32/2013) which was a case of causing grievous bodily harm with a machete where no permanent injury was inflicted on the victim. In that case Cato. J considered that the starting point for sentencing purposes was six and a half years imprisonment but he reduced that to three years due to significant mitigating factors. He also fully suspended the sentence of imprisonment because of exceptional circumstances including the offender's serious ill-health. Whilst accepting that R v Mafi involved the use of a weapon, and therefore might for that reason be considered a more serious case, the Crown submitted that it indicated that a period of imprisonment was required here.

The defense's position

[19] Mr. Pouono confirmed that Mr. Tapueluelu was a Police Officer with a long record of good service of about 30 years and no prior convictions. The assaults had occurred, he said, because Mr. Tapueluelu had believed that the cellphone had been taken by the victims and that they were lying to him.

[20] Mr. Pouono emphasised that Mr. Tapueluelu's intention to seek a discharge without conviction was made at an early stage in the Magistrate's Court and there were a number of hearings before the Magistrate satisfied himself that it was appropriate to make the order. He pointed out also that Crown Counsel was present at the hearing and took a neutral position. In my view, it certainly would have been appropriate in the circumstances if Crown Counsel had addressed the Magistrate on the applicable law but of course that does not in any way alter the Magistrate's obligation to impose an appropriate sentence as required by law.

[21] Mr. Pouono also referred me to two cases. The first was R v Niulala (CR73 of 2011) which was a case where a civil servant of long standing of a similar age to Mr. Tapueluelu had been charged with both indecent assault and assault. Lord Chief Justice Scott granted the accused a discharge with a condition to be on good behavior for two years. Mr. Pouono submitted that R v Niulala was authority to support the Magistrate's approach in this case. I do not get a great deal of assistance from this case. Both the indecent assault and assault were at the very low end of the scale of offending and there were not the aggravating features that are present in this case.

[22] The second case Mr. Pouono referred me to was R v Taufa (CR97/13) which Mr. Pouono said was a domestic assault where the charges were withdrawn because the victim had said she had forgiven the defendant and did not want her complaint to proceed. This case does not assist me as there was no ruling of the Court granting a discharge. I certainly would not accept as a matter of principle that the Court should grant a discharge in every case that a victim requests it.

[23] I asked Mr. Pouono to address me on the likelihood that a conviction would result in the termination of Mr. Tapueluelu's employment and loss of benefits. He referred me to clause 23 of the Constitution (as amended in 2013). I was not specifically addressed on whether Mr. Tapueluelu is a person to whom that provision applies. In any event, clause 23 only operates when the person convicted is sentenced to imprisonment for two years or more. There is no certainty this will be the case if Mr. Tapueluelu is convicted of these offences. It appears to me also that clause 23 is more relevantly a consideration to be taken into account by the Court following conviction when deciding whether to impose a period of imprisonment (as opposed to other sentencing options) and for how long.

Is it inexpedient to inflict punishment?

[24] As I have said, to determine whether it is inexpedient to inflict punishment, broadly the Court's obligation is to balance the gravity of the offence against the consequences of a conviction.

[25] Taking into account everything that can be said in support of Mr. Tapueluelu and his character, this offending was particularly serious. As I expressed to Counsel, I take this view because of the degree of violence, that the offending was premeditated (in that Mr. Tapueluelu went in search of the two victims and upon collecting them at different times drove them to a Police parking lot where he assaulted them) and there was in fact no provocation for the assaults. In any event, Mr. Tapueluelu's belief that the victims had taken the cellphone could never justify what he did. There is also much force in the Crown's submissions that Mr. Tapueluelu used his position as a Police Officer to facilitate the offending and that is a grave breach of the community's trust.

[26] When I balance the gravity of the offending with the possible consequences of a conviction upon Mr. Tapueluelu I simply cannot come to a view for the purposes of section 204 that it is inexpedient to inflict punishment on him. To the contrary, the Court is bound to convict him and impose a penalty that reflects the seriousness of the offence.

THE RESULT

[27] The appeal is allowed. The order made in the Magistrate's Court that Mr. Tapueluelu be discharged without conviction is quashed. It is not appropriate for the case to be referred back to the Magistrate's Court and I will hear from Counsel on sentence.

LORD CHIEF JUSTICE
NUKU'ALOFA: 21 May 2015.