'Ulu'ave v Rex [2017] TOSC 15; Criminal Appeal 7 of 2017 (24 July 2017)

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

AM 7 of 2017

BETWEEN: PAULA ‘ULU’AVE - Appellant

AND: R E X - Respondent

BEFORE THE HON. JUSTICE CATO

J U D G M E N T

[1] The appellant, Paula ‘Ulu’ave, appealed against his conviction for the theft of a cow and his sentence of 18 months imprisonment commencing 20^th March 2017, with the last 6 months suspended for two years. I gave an oral judgment today (the 21^st July, 2017) dismissing the appeal against conviction and upholding the appeal against sentence. I said that I would record the material part of my judgement in writing.

[2] In so far as the conviction is concerned, there was in my view, no basis for interfering with the judgment of the Magistrate convicting the appellant of theft. An eyewitness saw the slaughter of the animal which was tethered adjacent to the appellant’s father’s property and on the complainant’s property, and assisted the appellant to take it away. The animal had been sold for a funeral at a price well below the complainant’s market value for the animal. The accused had told various witnesses that his father owned the cow which was in conflict with what his father had said in evidence, namely that he was not missing such a cow.

[3] As to the sentence, however, the Magistrate gave no reasons for his sentence despite the accused making some effort to mitigate. I have said on several occasions that reasons for sentencing judgements must be given so that the recipient is made fully aware as to the basis or foundation for his or her sentence. That is fundamental for the good and fair administration of criminal justice, and means that, if the sentence is appealed, the Court is in a position to better evaluate the propriety of the sentence. Not only do reasons assure transparency, but they also cause the sentencer to pause, reflect and justify his or her sentence in a principled way, rather than rush to judgment and arrive at an ill-considered and possibly incorrect sentence.

[4] I accordingly decided to resentence the appellant. The Crown had conceded that the sentence was manifestly excessive suggesting a period of imprisonment of three months. I consider that short terms of imprisonment although fashionable in bygone days should be avoided if at all possible. The value of the cow was said to be $3000.00. As such under section 145 the maximum sentence is 7 years imprisonment. Although the accused had some theft convictions, they were many years ago. He said his wife was pregnant and asked for mercy. I consider that the theft and rather brutal killing of the animal was a serious criminal matter because cows are very valuable for many Tongan families and they are often tethered insecurely at road sides or in insecure properties making them easy targets for theft. I consider that the sentence I impose should act as a deterrent but also, I do not forget that the appellant has not been involved in theft for many years and deserves, in my view, substantial credit for this. I also take the view that, although he defended the charge, he is a good prospect for rehabilitation considering his absence of offending for many years, and bearing in mind also that he has a wife who is supportive of him. That will assist his rehabilitation. Accordingly, I sentence the accused to 12 months imprisonment for the theft of the cow but I fully suspend this on the following terms;

1. He is not to commit any offences punishable by imprisonment for the period of imprisonment;
   
2. He is to perform 75 hours community work on the Vuna road under the direction of probation;
   
3. He is to report to probation by no later than 4pm on the 24^th July 2017.
   

[5] A copy of this judgment is to be sent to Probation.

C. B. Cato
DATED: 24 JULY 2017 J U D G E