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Tu'itavake v Police [2021] TOSC 98; AM 4 of 2021 (15 June 2021)

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

AM 4 of 2021

BETWEEN:
LAUTAIMI TU'ITAVAKE
Appellant

-and-
POLICE
Respondent

JUDGMENT


BEFORE:
LORD CHIEF JUSTICE WHITTEN
Appearances:
Mr S. Fili for the Appellant
Mr I. Finau for the Respondent
Date of hearings:
Date of judgment:
11 May 2021 and 15 June 2021
15 June 2021

The appeal

  1. This is an appeal pursuant to s 74 of the Magistrates Court Act against the order of Senior Magistrate Pahulu-Kuli, on 19 March 2021, whereby the Appellant was sentenced to 20 months’ imprisonment for unlawful possession of 0.08 grams of methamphetamine while he was serving a term of imprisonment.

Background

  1. On 23 July 2019, in proceeding CR 32 of 2019, Cato J sentenced the appellant for possession of 182.05 grams of cannabis and 0.35 grams of methamphetamine to two years imprisonment for the cannabis and three months for the methamphetamine, with the last nine months of the head sentence suspended on conditions. In the ordinary course, taking into account time already served on remand and remissions available pursuant to Division 7 of the Prisons Act (“the Act”), the appellant was originally due for release on 27 June 2020.
  2. On 12 April 2020, while he was preparing an umu at the Reverend’s home near the prison gate, a passer-by reportedly asked the appellant for some leaves for tea, in return for which, he threw the appellant a matchbox which contained 0.08 grams of methamphetamine. Upon the appellant’s return to the prison environs, he was searched and the methamphetamine was found. The prison authorities reported the matter to police who subsequently charged the appellant with unlawful possession of illicit drugs.
  3. The appellant was placed in the maximum security facility at the prison where he remained until he was released on 24 July 2020, that is, some 96 days later.
  4. On 17 November 2020, the appellant was arraigned in this court and pleaded not guilty. The matter was then remitted to the Magistrates Court for summary trial. On 12 March 2021, the appellant changed his plea in that court to guilty.

The Magistrate’s decision

  1. In her sentencing remarks, Senior Magistrate Pahulu-Kuli considered the following:
  2. On that basis, the learned Magistrate set a starting point of 12 months’ imprisonment. However due to the appellant’s previous conviction, that point was increased by six months and by reason of the offending taking place in prison, a further six months was added. On account of mitigating factors, the total starting point of two years was reduced by three months resulting in a sentence of 21 months’ imprisonment. At paragraph 37 of her reasons for decision, the learned Magistrate stated:
"The Court also takes into consideration that you were held in prison for more time then you were required to from June to July of last year."
  1. Therefore, a further month was deducted, resulting in the final sentence of 20 months’ imprisonment from that day. By reason of the appellant’s previous sentences, which included partial suspension, and the principles in Mo’unga [1998] Tonga LR 154 at 157, no part of the resulting sentence was suspended.

Grounds of appeal

  1. By Notice of Appeal dated 20 March 2021 (but not filed until 20 April 2021), the appellant advances the following grounds of appeal:

Submissions

  1. On 27 April 2021, Mr Fili filed submissions in which he referred to the following provisions from Part VI of the Act concerning breaches of discipline by prisoners:

61 Prisoner not to be punished twice

(1) A prisoner shall not be punished for doing something or failing to do something as a breach of discipline if the prisoner has been convicted or acquitted of an offence for the same act or omission.

(2) A prisoner shall not be charged with an offence for doing something or failing to do something if the prisoner has been punished for the act or omission as a breach of discipline.

62 Commissioner to notify police

(1) If a prisoner does or omits to do something which could be dealt with either as a criminal offence or as a breach of discipline, the Commissioner shall immediately advise the Police Commissioner of the act or omission.

(2) Proceedings for a breach of discipline under this section are stayed until the Police Commissioner advises that no criminal charge will be brought against the prisoner for the act or omission.

(3) The advice from the Police Commissioner shall be sent to the officer in charge of the prison where the prisoner is accommodated.

63 Procedures for breach of discipline

(1) A prison officer may bring a charge of a breach of discipline against a prisoner.

(2) As soon as practicable after a prison officer brings a charge of a breach of discipline against a prisoner, the prison officer shall provide written details of that fact to a prison officer, the hearing officer, who holds a more senior office than the officer bringing the charge.

(3) The hearing officer shall —

(a) inform the prisoner of any evidence that supports the allegation;
(b) allow the prisoner to cross-examine any witness called by the prison officer under subsection (1) and call witnesses within the prison to give evidence for the prisoner, unless the hearing officer considers the evidence may be given in writing;
(c) allow the prisoner a reasonable opportunity to make submissions in the prisoner’s defence; and
(d) allow the prisoner a reasonable opportunity to make submissions in mitigation of punishment.

(4) If the prisoner refuses to attend the breach of discipline hearing, the hearing officer may hear and determine the proceedings in the absence of the prisoner.

(5) If the hearing officer determines that the prisoner charged does not understand the nature of the disciplinary proceedings or the alleged breach of discipline, the hearing officer may appoint a person nominated by the prisoner, or, in the absence of such nomination, someone else, to assist the prisoner at the hearing.

(6) The hearing officer may question the prisoner and anyone else who may be able to provide relevant information.

(7)Neither the prison officer who alleged the breach of discipline nor the prisoner is allowed any legal or other representation before the hearing officer.

(8) The hearing officer is not bound by the rules of evidence but may, subject to any regulation, inform himself about the matter in the way the officer thinks fit.

(9) If the hearing officer believes that the prisoner’s act or omission constitutes a criminal offence, the hearing officer shall notify the Commissioner of that fact and not proceed further with the matter until advised otherwise by the Commissioner.

64 Punishment for breach of discipline

(1) Where a prisoner charged with a breach of discipline admits the charge, or the charge is proved beyond reasonable doubt, the hearing officer may impose one of the following punishments —

(a) reprimand the prisoner;

(b) order the prisoner to forfeit privileges for up to 14 days; or

(c) order the prisoner to serve a separate confinement period, not exceeding 7 days.

(2) The hearing officer shall record the breach of discipline and the punishment in the breach of discipline register.

(3) The hearing officer shall inform the prisoner of his right to appeal and the way in which the prisoner is to commence an appeal.

(4) If the prisoner wishes to appeal, the prisoner shall inform the hearing officer within 7 days.

(5) Where a prisoner appeals a decision of the hearing officer, the punishment appealed against, shall be suspended pending the determination of the appeal.

  1. The upshot of Mr Fili’s submission was that placing him in maximum security, the prison authorities punished the appellant for the offending without following the procedures for breaches of discipline and punishment set out in the above-mentioned provisions. Further, the punishment inflicted on the appellant amounted to "torture" and was "too outrageous" compared to the penalties provided by those provisions.
  2. On 5 May 2021, the respondent filed the following submissions, in summary:
  3. After hearing from the parties on 11 May 2021, I expressed the preliminary view that, aside from any issues concerning the provisions of the Act referred to above, the sentence appeared to be excessive. Mr Finau, who appeared for the respondent, agreed. Further directions were therefore made for the filing of additional material in relation to the novel issues arising under the Act and the hearing was adjourned to 15 June 2021. In the meantime, having regard to s 4B(1)(a) of the Bail Act, I was satisfied that there was a reasonable prospect of the appeal succeeding, at least to some extent, and therefore granted the appellant bail on conditions including a curfew and reporting.
  4. On 25 May 2021, the respondent filed what was effectively an affidavit[2] by Laini Manuofetoa, the Deputy Commission of Prisons, who, in summary, deposed as follows:
  5. On 26 May 2021, the respondent filed supplementary submissions in which it repeated the statements by the Deputy Commissioner to effect that the appellant had not been disciplined or punished by the prison authorities and that he was not placed in “maximum security” but rather into a “separate facility” for “security purposes” due to a “lack of facilities”. The respondent also confirmed its earlier concession that the sentence below was excessive and submitted that an appropriate substitute sentence would be 8 months’ imprisonment without any suspension.
  6. On 8 June 2021, Mr Fili filed further submissions in response, in summary:

37 Maximum security orders

(1) The Commissioner may make a maximum security order that a prisoner be placed in a maximum security facility within a prison.

(2) The Commissioner may only make the order if the Commissioner reasonably believes, that any or all of the following apply —

(a) there is a risk the prisoner will escape, or attempt to escape;

(b) there is a risk the prisoner will kill or cause serious injury to prison officers, other prisoners or another person that the prisoner may come into contact with; or

(c) the prisoner is a threat to the security or good order of the prison.

(3) The term of the order shall not be longer than 7 days, unless the Commissioner otherwise directs.

  1. During the resumed hearing on 15 June 2021, I enquired as to whether any investigation was conducted to ascertain how the appellant came to be in possession of methamphetamine whilst in prison. The explanation provided from the Bar table was as per the background above.
  2. Further, Mr Finau confirmed that there was no evidence of the existence of any direction by the Commissioner extending the seven day period proscribed by s 37(3).

Consideration

  1. The primary issue on this appeal is whether the sentence below was excessive. The respondent concedes that it was. Consistent with the preliminary view expressed earlier in the proceeding, I agree.
  2. It is not apparent from the learned Magistrate’s sentencing remarks that she had sufficient regard to comparable sentences. Her Worship’s reference to Afu identified, among the sentences imposed for the 16 drug-related offences dealt with in that case, the sentence of six months imprisonment for 0.16 of a gram of methamphetamine. However, they also included two months imprisonment for 0.05 of a gram of methamphetamine.
  3. It is apparent that her Worship placed excessive weight on the circumstances of aggravation as she saw them. Apart from the discount of one month for the extended release date, it is also apparent that the learned Magistrate did not consider and did not have the benefit of any submissions in relation to, the lawfulness or otherwise of the appellant being placed into maximum security for 96 days, or the significance, if any, of that treatment in determining the appropriate sentence.
  4. In those circumstances, and as the Respondent properly conceded, the Magistrate’s discretion miscarried and the sentence must be set aside.
  5. By reference to the range of other sentences in Afu and the comparable sentences referred to therein, as well as others such as:

I substitute the following sentencing formulation:

(i) a primary starting point of six months imprisonment;
(ii) by reason of the aggravated offending occurring within prison while serving a prison term for a previous drug-related offence, that starting point is to be increased by three months making a total of nine months;
(iii) one month off for the Appellant’s late guilty plea;
(iv) resulting in a sentence of eight months imprisonment.
  1. The secondary, and somewhat novel, issue on this appeal is whether, and if so, to what extent, any consideration should be given to the approximately three months spent by the appellant in maximum security. That now becomes relevant on the question of any credit for time served or suspension of the balance of the substitute sentence to be imposed.
  2. It was common ground that the legal issues raised by the appellant on this appeal challenging the lawfulness of the prison authorities placing him in maximum security were not raised below. Notwithstanding the general prohibition against Courts of appeal entertaining issues not raised before the Court whose decision is appealed, the circumstances here are exceptional.[3] Further, it is unlikely that any evidence that could have been given below could possibly have prevented the point from succeeding.[4] Accordingly, I determined to consider the issue within this appeal rather than remit the matter back to the Magistrates Court for further consideration according to law thereby inviting the possibility (and attendant inefficiencies, time and cost) of a repeat appeal.
  3. The information provided by the Deputy Commissioner of Prisons provided some valuable insight and assistance in understanding the relevant background to the appeal. However, I am unsettled by two matters.
  4. Firstly, the rather oblique reference by the Deputy Commissioner to the appellant being "put into a separate facility”, is not a term used in the Act. Similarly concerning was is failure (or reluctance perhaps) to expressly refute the appellant’s assertion that he was placed in "maximum security", which is specifically provided for in the Act, albeit only in prescribed and limited circumstances.
  5. Secondly, that the Commissioner of Prisons, assuming he was aware, permitted (or perhaps even directed) the appellant to remain in maximum security for approximately three months was never fully explained. As noted above, s 37 of the Act permits such an order where a prisoner is a threat to the security or the good order of the prison but that the term of the order for maximum security shall not be longer than seven days unless the Commissioner otherwise directs. Here, as noted, there was no evidence of such a direction nor any explanation as to why the appellant was retained in maximum security for longer than seven days.
  6. I have no difficulty in accepting that any prisoner who procures or is given drugs, which are then taken within the prison, does pose a threat to the good order and security of the prison by the potential for distributing those drugs to other inmates or by consuming them, resulting in disruptive or even violent behaviour. But in this case, there was no evidence to support the continuing retention of the appellant in the maximum security facility. One would have thought that once the methamphetamine was detected and seized, the appellant could no longer pose a threat to the security of the prison, especially if he was unable to come into future contact with anybody outside the prison, as he did here, who could have given him any further illicit drugs. There is no evidence, nor even a suggestion, that it was necessary to place him in maximum security to achieve that. The only other indirect explanation proffered by the Deputy Commissioner was that the Hu’atolotoli prison is overcrowded, it has limited resources, and that whilst the Act prescribes three classes of prisoners, and how they are to be accommodated, the harsh reality is that most of the inmates have to be housed in mixed accommodation. That, however, still does not explain why the appellant was kept in maximum security for approximately three months. In the absence of any such explanation, it is impossible to dismiss entirely, and, at a minimum, I am left with reservations, as to the appellant's contention that he was punished by the prison authorities.
  7. Although the making of the submission was perhaps understandable, I regard the fact of Mr Fili’s characterisation of the appellant’s time in maximum security as “torture” as somewhat of an exaggeration. That may be contrasted with whipping which presently remains, within Tonga, as a form of punishment available within the Criminal Offences Act. Nonetheless, having personally inspected the prison shortly after arriving in the Kingdom, including the maximum security facility, I do accept that any time in that place would be far more arduous and uncomfortable, to say the least, than even the ordinary cramped conditions the general population of prisoners are required to endure.
  8. For those reasons, I consider it appropriate to order that credit be given for the three months served in maximum security towards the balance of the substituted sentence referred to above.
  9. I was also informed by counsel that the appellant has served 1 ½ months imprisonment on the sentence the subject of this appeal before he was granted bail during this proceeding. Therefore, the appellant is to be given credit of a total of 4 ½ months served.
  10. But for the striking and unusual circumstances of this case, no consideration whatsoever would be given to suspending any part of the balance of 3 ½ months imprisonment. However, in light of those circumstances, and the fact, according to Mr Fili, that the appellant only has one more week to complete the drugs awareness course which formed part of the conditions of his suspended sentence imposed by Cato J, I consider it appropriate to order that the final 3 ½ months of this sentence be suspended for a period of 12 months, on the usual conditions but with the addition of a greater period of community service than has been applied in comparable sentences, as part of the balancing act to be achieved in any sentence.

Result

  1. For the reasons stated above, the appeal is allowed.
  2. The sentence in Magistrates Court proceedings CR 195 of 2020, dated 19 March 2021, is set aside.
  3. In substitution therefore, the appellant is sentenced to 8 months’ imprisonment.
  4. The appellant is to be given credit for 4 ½ months served in respect of that sentence to date.
  5. The remaining 3 ½ months of the sentence is to be suspended for a period of 12 months from today, on condition but during the said period of suspension, the appellant is to:
  6. The appellant is reminded that if he fails to comply with any of those conditions, the suspension may be rescinded, in which case, he will be required to serve the balance of his prison term.

NUKU’ALOFA
M. H. Whitten QC
15 June 2021
LORD CHIEF JUSTICE

[1] "No one shall be punished because of any offence he may have committed until he has been sentenced according to law before a Court having jurisdiction in the case".
[2] Described as a "sworn declaration made under oath”.
[3] For example, see Cocker v Palavi [1997] Tonga LR 203 citing Vailala v Late Futu (1958) 2 TLR 165; Taufa v Tahaafe [2015] TOCA 7 at [21]; Fanua v Rex [2020] TOCA 5 at [30].
[4] Bond v R [2000] HCA 13; (2000) 201 CLR 213 at [30] citing Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1; Water Board v Moustakas (1988) 180 CLR 491 andConnecticut Fire Insurance Co v Kavanagh [1892] UKLawRpAC 39; [1892] AC 473.

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