Police v Funaki [2022] TOSC 100; AM 5 of 2022 (8 December 2022)

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

AM 5 of 2022

BETWEEN :

POLICE
Appellant

AND :

TIPILOMA FUNAKI
Respondent

JUDGMENT

Before: Justice P. Tupou KC

Appearances: Ms H. ‘Aleamotu’a for the Appellant

The Respondent in person

Date of hearing: 16 and 21 November, 2022

Date of Judgment: 8 December, 2022

The appeal

1. This is an appeal against the decision of Senior Magistrate Penisimani Ma’u on 14 July 2022, whereby the learned Magistrate refused to invoke a previous suspended sentence breached by the Respondent in the present offending subject of this appeal.
   
2. The appeal is brought pursuant to s 74 of the Magistrates Court Act.
   
3. At the hearing on 21 November, 2022, after hearing submissions from both parties, I gave an ex tempore judgment and now provide reasons.
   

The first offending

4. On 27 July, 2021, the Respondent was convicted in cases CR 114-116 of 2021 for possession of cannabis and sentenced to 8 months’ imprisonment with the final 2 months being suspended for a period of 9 months on the following conditions;
   
   1. Not to commit any offence punishable by imprisonment;
   2. Report to Probation within 48 hours;
   100. Attend a drug course under the direction of probation;
   4. If the accused does not adhere to the conditions of suspension, he can be recalled and resentenced; and
   5. Drugs were destroyed.
      

The present offending

5. The Respondent was with a group of people on the evening of 16 April, 2022^[1] at one Sione Tu’ungafasi’s residence. They were drinking.
   
6. A complaint was received by His Majesty’s Armed Forces about the drinking and loud noises from Mr Tu’ungafasi’s home.
   
7. Sione Lasike, a member of His Majesty’s Armed Forces went to the home to investigate and found a plastic bottle with alcohol^[2] inside. He called the police and all those in the home were arrested including the Respondent.
   
8. The Respondent pled not guilty. The Prosecution called 2 witnesses who were cross examined by the Respondent. At the close of the Prosecution’s case, the accused changed plea.
   
9. The Prosecution drew the court’s attention to the previous suspended sentence the Respondent breached in present offending.
   

The Sentence

10. The Learned Magistrate’s decision was transcribed in whole as;
    

“Thank you Prosecutor, I will not activate the previous suspended sentence but he will be fined.

Sentence:

Fined $100 to be paid within 2 weeks or 1 week imprisonment in default.”

The Grounds of Appeal

11. The grounds of appeal were, that the Learning Magistrate:
    
    1. failed to take into consideration a relevant factor, i.e, that the Respondent committed the offending whilst he was on a suspended sentence resulting in him imposing a sentence that was inadequate;
       
    2. did not reactivate the Respondent’s 2 months suspended sentence in Criminal Summons 114-116 of 2021.
       

Submissions

12. The Appellant submitted that the Learned Magistrate erred in refusing to consider that the present offending occurred during the period of suspension for the first offending resulting in an inadequate sentence.
    
13. Further, no special circumstances were present to warrant a refusal to activate the suspended sentence and the Prosecution did not have an opportunity to make submissions against a refusal because the Learned Magistrate failed to indicate he was considering that option.
    
14. The Respondent opposed the appeal and submitted the Learned Magistrate was correct in his decision and merely granted him mercy.
    
15. He suggested that the Prosecution had raised the issue of the suspended sentence three times over the course of the hearing and the Learned Magistrate said he had authority to suspend each time.
    

Considerations

16. Section 24 (3) ( c) and (e) of the Criminal Offences Act state;

“.......

(c) In the event of the offender being convicted of an offence punishable by imprisonment committed 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.

(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.”

17. This court in R v Vete [2007] TLR 38, held that in consequence of a second conviction, the earlier suspended sentence was automatically invoked and enforced by the court unless the judge is satisfied there were special circumstances to allow for the release of the offender from the operation of s 24 (3)(c ).
    
18. A special circumstance where it will be appropriate to release an offender is where the subsequent offence is relatively trivial.^[3]
    
19. It is not clear from the Learned Magistrate’s decision what circumstances were taken into consideration to arrive at his refusal to activate the suspended sentence.
    
20. In analysing the case and the imposed sentence it could be said that this was a trivial offence and therefore a special circumstance was present. The difficulty is, there is nothing to show this was the approach taken.
    
21. I agree with the Appellant that the Learned Magistrate reached his decision in a procedurally unfair manner by not raising with counsel the possibility of releasing the respondent from the suspended sentence and/or affording both parties an opportunity to make submissions on the point.
    
22. Further, at the hearing of this appeal, the Respondent admitted that he had not paid the fine of $100 imposed on 14 July, 2022 because he was awaiting the outcome of this appeal before he paid it.
    
23. That fine was the sentence imposed by Learned Magistrate for his present offending and was not challenged in this appeal.
    
24. There was no other reason provided for non-payment. I consider the Respondent’s attitude as having no regard for decisions made by the court against him, now a second time.
    
25. Had he paid the fine of $100 before this hearing, I would have considered extending his suspension under s.24(3)(e).
    

Result

26. The appeal is allowed. The order releasing the respondent from his suspended sentence is quashed.
    
27. The suspended sentence for CR114-116 of 2021 of 2 months imprisonment is activated which the Respondent must now complete.
    
28. I extend the time for the Respondent to pay the fine imposed in the Magistrate Court for another 2 weeks on the same conditions.
    

P. Tupou KC
J U D G E

Nuku’alofa: 8 December, 2022

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^[1] Within the suspended period of the first sentence
^[2] Hopi (home brew)
^[3] AG v Angilau, AC27/21, TOCA (24 Nov, 2021)