Moala v R [2018] TOSC 79; AM 27 of 2018 (14 December 2018)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION

NUKU’ALOFA REGISTRY

AM 27 of 2018 [CR 497 of 2018]

BETWEEN: PAULA MISIELI MOALA aka KENI

- Appellant

AND: REX

- Respondent

BEFORE HON. JUSTICE NIU

Counsel: Mr. D. Corbett for appellant

Mr. T. ‘Aho for respondent

Hearing: 14 December 2018

Ruling: 14 December 2018

RULING BY CONSENT

[1] The appellant pleaded guilty, together with another accused person, to theft of a generator valued at $4,500, and was sentenced together with the co-accused by the Magistrate Court to 12 months imprisonment but reduced to 9 month on account of their guilty pleas and having had no previous conviction. Neither of them had legal counsel. They commenced serving their sentence on the same day, 30 October 2018.

[2] On 24 November 2018, counsel, Mr. Corbett, filed the appeal of the appellant against the sentence imposed by the Magistrate’s Court, upon the ground that in accordance with guidance laid down by the Court of Appeal in Mo’unga v R [1998] Tonga LR 157 the imprisonment sentence imposed ought to have been fully suspended because the accused had no previous conviction and he was likely to take the opportunity to rehabilitate himself.

[3] On 5 December 2018, counsel filed an application of the appellant for bail pending determination of his appeal. On 7 December 2018, the Lord Chief Justice granted bail and the appellant was released from prison on the same day.

[4] Mr. ‘Aho for the respondent agreed with the ground of appeal of the appellant, and I also agree. This is a property offence and because the appellant had had no previous conviction in his 42 years, is married and has 4 children and he plants crops for their subsistence, there is every likelihood that the appellant will take the opportunity of suspension of sentence to rehabilitate himself. The whole of the 9 months imprisonment sentence ought to have been suspended.

[5] However, because the appellant has already served 32 days of that sentence in prison before he was granted bail, both counsel, and the appellant himself, and I, agreed that because imprisonment has been served for 32 days, his sentence should simply be those 32 days – a sentence which he should not have served but which he has already served, and that in lieu of that, there be no further penalty hanging over him.

[6] Accordingly, by consent, I make the following orders:

(a) The appeal of the appellant is allowed.

(b) The sentence of imprisonment of 9 months imposed by the Magistrate Court is quashed.

(c) The appellant is sentenced to 32 days imprisonment backdated to be served and which has been served from 30 October 2018 to 7 December 2018.

(d) The appellant is accordingly forthwith discharged.

(e) The passport of the appellant shall forthwith be returned to him and his name shall forthwith be removed from the NO FLY LIST.

L. M. Niu
NUKU’ALOFA: 14 December 2018. J U D G E