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Police v De Feng Mo [2022] TOSC 81; AM 3 of 2022 (6 September 2022)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION

NUKU’ALOFA REGISTRY


AM 3 of 2022


BETWEEN:

POLICE Appellant

-and-

DE FENG MO Respondent


JUDGMENT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: Mrs T. Kafa Vainikolo for the Appellant

Mr W.C. Edwards SC for the Respondent

Hearing: 31 August 2022

Judgment: 6 September 2022


Appeal

  1. This is an appeal pursuant to s 75 of the Magistrates Court Act against sentence.

Background

  1. On the evening of 10 January 2020, De Zhao (“the victim”) was having dinner with others at the Kahana Lagoon Report. The Respondent arrived and asked the victim to talk. According to the victim, he told the Respondent that he was busy with his guests and that he would talk to the Respondent some other time. According to the Respondent, the victim said words to the effect “go fuck your mother, I’m busy”. It is common ground that the Respondent then grabbed the victim’s head and repeatedly punched his face. The victim lost consciousness. Others stopped the Respondent from continuing to punch the victim. The Respondent chose to remain silent when questioned.
  2. As a result of the attack, the victim, who was 51 years of age, suffered injuries which required him to travel to New Zealand for surgery for a fractured jaw (in which a steel plate was inserted) and extraction of 11 teeth.[1] After a week in hospital, he spent the next six months only being able to eat non-solid foods and attending fortnightly checkups. As at March 2022, the victim continued to suffer pain in his jaw. Medical advice was that to address that pain, the steel plate needs to be surgically removed.
  3. The Respondent was charged with two counts of causing serious bodily harm. He was committed to stand trial in the Supreme Court. On 26 November 2020, the Respondent pleaded not guilty to both counts. Mrs Vainikolo for the Prosecution and Mr Latu for the Respondent consented to the matter being remitted to the Magistrates Court pursuant to s 36 of the Magistrates Court Act.
  4. On 29 November 2021, the Respondent was tried before Senior Magistrate Ma’u.
  5. On 26 January 2022, the learned Magistrate found the Respondent guilty on both counts and gave directions for submissions on sentence.

Submissions below

  1. The Prosecution below presented the Respondent’s previous criminal history which included, relevantly, that in February 2018, he was convicted in the Magistrates Court of destruction to a house and common assault, in which he kicked his father-in-law in the groin causing him to fall and hit his head, and for which, the Respondent was fined.
  2. The Prosecution submitted that:
  3. The Prosecution referred to R v Luka [2021] TOSC 46 as authority for the proposition that:
“... anyone who commits an offence of violence against another person runs a serious risk of immediate imprisonment. That will apply even to a first-time offender....”
  1. The Prosecution referred to the following comparable sentences from the Supreme Court:
  2. The Prosecution distinguished the Respondent’s case as more serious than the above comparable sentences where those defendants had pleaded guilty, were younger and Poafa and Puamau had no previous convictions. The Prosecution therefore submitted a starting point for the head offence (count 1 – fractured jaw) of 3 years, with no discount for mitigation. In relation to suspension, the Prosecution submitted, by reference to the considerations in Mo’unga [1998] Tonga LR 154, that as there was no premeditation, the final six months should be suspended.
  3. Mr Edwards, who also appeared for the Respondent below, submitted that:

Decision below

  1. On 6 April 2022,[5] the Magistrate sentenced the Respondent to 18 months imprisonment on each count, to be served concurrently. The sentences were fully suspended for two years on conditions, including probation and an anger management course. Apart from reciting the facts and the parties’ submissions, the Magistrate’s reasons may be summarized, relevantly, as follows:

Submissions on appeal

  1. Both counsel filed written submissions and spoke to them during the hearing.

Appellant

  1. The Appellant referred to the first of two principles on Crown appeals against sentence discussed in Misinale [1999] TOCA 12:
“First, for such an appeal to succeed, clear and compelling grounds for increasing the sentence need to be established. It is not sufficient for the appellate court to consider that a more severe sentence could properly be imposed, or that the sentence imposed is inadequate or inappropriate. For a sentence to be increased on a Crown appeal, the appellate court must be satisfied that the sentence is so inadequate or inappropriate that the sentencing judge erred in that he or she must have acted upon a wrong principle, wrongly assessed a relevant circumstance, took into account irrelevant factors, failed to take into account relevant factors, or has imposed a sentence that is inconsistent with sentences the court has imposed for like offending. In such a situation, the appellate court is left with no alternative but to impose a more severe or a different sentence. If the court is so satisfied, the sentence should be increased only to the lower end of the appropriate sentencing range. Indeed, the appellate court, in fixing the proper range for this case, should take into account that it is an added penalty to have to face sentence a second time, and to have hope deferred, and perhaps dashed, in the result.”
  1. Ms Kafa Vainikolo further submitted, in summary, that the learned Magistrate erred by:
  2. In her oral submissions, counsel also submitted that:

Respondent

  1. Mr Edwards submitted, in summary, that:
  2. In his oral submissions, Mr Edwards agreed:

Consideration

  1. Firstly, the starting point in considering the above contentions is whether the Magistrate erred in the approach he took to sentencing viz a vis his jurisdictional limit.
  2. Section 11 of the Magistrates Court Act provides, relevantly:

11 Criminal jurisdiction

(1) The Magistrate’s Court has jurisdiction to hear and determine criminal cases which the Court is empowered to hear and determine by this or any other Act.

(2) Subject to subsections (3) and (4), the Magistrate’s Court has jurisdiction to hear and determine criminal cases in which the maximum punishment provided by law does not exceed three years imprisonment or a fine of $10,000.

(3) The Magistrate’s Court has jurisdiction to hear and determine criminal cases which, in accordance with section 35, the Court has determined to hear summarily or which, in accordance with section 36 the Supreme Court has remitted to it for trial.

(4) The Lord Chief Justice may by Order made under this subsection and published in the Gazette, invest any named magistrate with enhanced power, when hearing and determining criminal cases with the consent of the prosecution and the defendant in accordance with sections 35 or 36 of this Act, to inflict a maximum punishment not exceeding seven years imprisonment or a fine of $50,000.

.....

(6) In exercising criminal jurisdiction, a magistrate shall have the power to inflict the maximum penalties specified in subsection (2) or (4) as the case may be....”

  1. Section 36 provides:

36 Remission to Magistrate

(1) It shall be lawful for a judge of the Supreme Court, on his own initiative or on application in Chambers by the prosecutor and the accused or either of them to remit for trial in the Magistrate’s Court, to any Magistrate or to a Magistrate whose sentencing power has been enhanced in accordance with section 11(4), as the case may be, any case committed to the Supreme Court for trial, provided always that he shall not make such an order without the consent of all parties.

(2) Upon any case being so remitted under subsection (1) hereof, the Magistrate shall proceed to deal with such case summarily in the manner provided in section 24.

(3) A Magistrate who hears a case remitted to him under this section is not empowered to order any punishment greater than that specified in section 11(2) or (4) as the case may be.

  1. In cases which are remitted from the Supreme Court to the Magistrates Court, the above provisions do not ‘rewrite’ or have the effect of reducing the maximum statutory penalties for offences prescribed by the Criminal Offences Act. In other words, for serious bodily harm, there is only one maximum statutory penalty under ss 107(4), namely, five years imprisonment.
  2. It follows therefore that in undertaking the first step in any sentencing - setting a starting point - the court must assess the seriousness of the particular offending by comparison to other sentences for offending of that kind. There is no basis, in statute or principle, for that process to be undertaken differently, or within different parameters, as between the Magistrates and Supreme Court. Those comparable sentences, whether they be from the Magistrates or Supreme Court, should reflect the same range of starting points for offending within the same range of seriousness.
  3. The limits of jurisdiction in the Magistrates Court, whether in its original or enhanced jurisdiction, do not alter the nature of that exercise. Therefore, if, as here, the seriousness of the offending by comparison to comparable sentences (from either court) indicated a starting point of 2 ½ years imprisonment (or even 3 years), the sentencing Magistrate was obliged to adopt that starting point regardless of the limit of his jurisdiction of 3 years. That limit does not constrain the appropriate starting point nor does it reduce the maximum punishment provided by law for the offence to three years. The limit only applies to the final sentence to be imposed. That the Act contemplates a Magistrate imposing a sentence to the maximum of his/her jurisdiction is consistent with the above interpretation.
  4. An order for remittal pursuant to ss 11(4) and ss 36(1) ought only be made (with the consent of both parties) if the Crown considers that, upon conviction in the lower court, any resulting sentence will be within the jurisdictional limit of that court. It is, of course, open to the Supreme Court to decline to remit despite the consent of both parties if it considers that an appropriate sentence upon conviction will exceed the Magistrates Court jurisdiction. Ordinarily, however, the Supreme Court will be guided by the position of the Crown as it will the party inevitably submitting the highest appropriate sentence available upon securing a conviction below.
  5. Any issue of potential differences between sentences imposed by the Magistrates Court and the Supreme Court for the same type of offence cannot arise by any differences in approach as described above. Different sentences should only be the product of differing seriousness between offences of the same kind and/or other mitigating factors peculiar to a given case. For that reason, decisions as to whether an offence is presented before the Magistrates Court for summary determination or committed to the Supreme Court, and in the latter case, whether they may be remitted back to the Magistrates Court in either its original or enhanced jurisdiction must be made with careful regard to the seriousness of the alleged offending and the range of sentences applicable upon any conviction. Therefore, where the least serious of such offences are dealt with by a Magistrate with original jurisdiction, it will be of no surprise that the sentences for those cases will be less severe than sentences imposed by a Magistrate with enhanced jurisdiction or the Supreme Court which should only be dealing with more serious offences.
  6. Which brings us to a significant issue in this case.
  7. Had counsel for the parties upon arraignment before the Supreme Court specified that the case was to be remitted to a Magistrate with enhanced jurisdiction (as was candidly revealed on this appeal they had agreed), it is likely this appeal may never have arisen. While there is no guarantee that the outcome would have been different had one of the Magistrates with enhanced jurisdiction dealt with the matter, it is almost certainly the case that that Magistrate would not have been concerned with whether the appropriate starting point had to fall within three years or not.
  8. Accordingly, by holding that the maximum penalty was three years and refusing to adopt the Crown’s submitted starting point because it was the limit of his jurisdiction, the Magistrate erred.
  9. Secondly, the Magistrate’s reasons do not reveal any comparison of the relevant features in Sika with the instant case to explain why he considered it appropriate to adopt the sentence in Sika for this case.
  10. Apart from the fact that neither party referred to Sika below (which by no means precluded the Magistrate from doing so), a comparison of the two cases reveals:
  11. On that basis, and the Magistrate’s failure to provide adequate reasons for this part of his decision, his sentencing discretion miscarried.
  12. Thirdly, and further to the last, I accept the Appellant’s submission that the instant sentence of 18 months imprisonment was inconsistent with sentences imposed for like offending and therefore manifestly inadequate. As noted above, there is no basis for distinguishing between sentences of the Magistrates Court and those of the Supreme Court for similar offending. Consistency in sentencing for similar offending is imperative for certainty, predictability and fostering public confidence in the courts and their administration of justice: Rex v Misinale [1999] TOCA 12; Attorney General v Leka [2021] TOCA 13 at [18]. In any event, neither party nor the Magistrate himself referred to any sentences of the Magistrates Court to support the sentence here.
  13. The sentences referred to by the Crown below suggested a primary range of 20 to 30 months. However, there were aggravating features and/or a lack of mitigating factors in the instant case that placed it at the upper end (at least) of that range, not below the bottom of it. For instance, the attack was found to be unprovoked, it has had a grave and continuing impact on the victim and his quality of life, and for which the Respondent has not expressed any remorse. Further, and in contradistinction to the instant case, the defendants in Paumau, Hafoka and Poafa were young, pleaded guilty at the earliest opportunity and (apart from Hafoka) had no previous convictions.
  14. Fourthly, the only apparent reason expressed by the Magistrate in his reasons for fully suspending the sentence was that the Respondent had a wife and three children, all whom were dependent on him.[10] In R v Wolfgramm [2020] TOSC 78, it was observed that:[11]
“[47] The Courts have repeatedly stated, most recently in Rex v PF [2020] TOSC 30, that the ‘breadwinner submission’ is one that is constantly raised in the courts of the Kingdom, but which carries little weight in determining whether a Defendant should be sent to prison. Imprisonment will fall hard on the family the Defendant should be supporting, but this Court has commented more than once that such a factor is not the responsibility of the Court: Tukuafu v Police [2001] Tonga LR 151.[12] Such hardship cannot be an overriding mitigating factor in cases where the objective gravity of the offences and the presence of aggravating factors call for a custodial sentence: Rex v Vake [2012] TOCA 7.[13] Further, the fact that the offender is the breadwinner for his family, is not, and is rarely likely ever to be, on its own, a proper reason for suspending a sentence. It may be accepted that, if the respondent goes to prison, the family will suffer. That unfortunately is an all too frequent consequence of criminal offending: R v Motulalo [2000] Tonga LR 311 at 314.[14]
[48] For my part, I would echo the sentiments and stance taken by the courts as expressed above in this way. Whenever a ‘breadwinner’ decides to commit serious crime, he or she must be regarded as doing so in the knowledge that they will:
(a) usually be harming others (and possibly themselves) in the commission of the crime/s;
(b) be exposing themselves, if and when caught and convicted, to a risk of incarceration; and
(c) in that event, also be sentencing their loved ones, for whom they are responsible, to likely hardship and suffering during any period of incarceration.
[49] Any such hardship is not due to the sentence per se which the courts must impose. That is but the result of a decision by the breadwinner to commit serious crime. Even where, as here, the majority of the Defendants joined in the illegal enterprise, reportedly, to make “quick cash” and to “help their families”, their decision to do so by means of known illegal conduct had the effect of gambling with their families’ lives and livelihoods, abrogating their responsibilities to those innocents and breaching their trust. Therein lies the root cause for the avoidable misery for family members which all too often follows the fall of their ‘breadwinner’.”
  1. During oral submissions, and no doubt perceiving an obvious weakness in the Magistrate’s reasoning, Mr Edwards suggested that, in coming to the decision to fully suspend the sentence, the Magistrate also took into account ‘a whole view of the case’. There is nothing in the Magistrate’s reasons to support that submission.
  2. Accordingly, by reason of his departure from the principles above in relation to the ‘breadwinner plea’ and apparent failure to have considered the factors in Mo’unga v R [1998] Tonga LR 154 at 157, the Magistrate’s decision to fully suspend the sentence amounts to a further error of law.
  3. For those reasons, the appeal must be allowed.
  4. However, the final question is how the appeal should be resolved in terms of re-sentencing the Respondent.
  5. As noted above, by deference to the principle stated in Misinale in relation to Crown appeals against sentence, the Appellant here accepts that the sentence of 18 months imprisonment should remain but that to effectively increase it to the lower end of the effective range, none of it should be suspended.
  6. Approximately half the sentences in Puamau and Hafoka, and the whole of the sentence in Poafa were suspended. The particular circumstances of those defendants assessed by reference to the Mo’unga considerations explained why.
  7. On the same analysis, almost none of the considerations favour suspension in the Respondent’s case. He is not young. He has a recent conviction for assault (although it is his only relevant conviction and for which he was only fined). He did not cooperate with police when questioned. His asserted reason for pleading not guilty was misguided and reflected a certain callousness and lack of remorse.
  8. Against that, the Magistrate’s finding of no provocation (not challenged on this appeal) suggests a spontaneous outburst; in other words, a lack of premeditation. Further, the Respondent has not had the benefit of any form of suspended sentence in the past to act as a deterrent and assist in rehabilitation.
  9. On that basis, and subject to what follows, I consider that the appropriate order would have been to partially suspend the sentence.
  10. However, despite clear force in the Appellant’s case, and for the reasons which follow, I have come to the conclusion that it would not be in the interests of justice, in this particular case, to interfere with the suspension of the sentence and require the Respondent to now be incarcerated. That decision is also informed by the approach taken, in similar circumstances, by the Court of Appeal in Attorney General v Leka [2021] TOCA 13.
  11. Firstly, the Crown did not apply for a stay of execution of the suspended sentence below: cf Attorney General v Angilau [2021] TOCA 24. By all accounts, the Respondent has been complying with the conditions of his suspended sentence to date.
  12. Secondly, the offence occurred over 2 ½ years ago. There is no suggestion that the Respondent has engaged in any criminal activity in the interim.
  13. Thirdly, in Misinale, ibid, the Court of Appeal continued:[15]
“Secondly, the right of the Crown to appeal affects the course the Crown should take when the sentence is before the sentencing judge. As was said by the Full Court of the Federal Court in R v Tait [1979] FCA 32; (1979) 24 ALR 473, 476, after pointing out that a Crown appeal puts the defendant in double jeopardy:
‘It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error. The Crown has been said not to be concerned with sentence .... but when a statutory right of appeal has been conferred on the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions fairly and in an even handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it.’
Now that the Crown in Tonga has the right to appeal against sentence, these principles should be applied here. We emphasise the importance of counsel for the Crown carrying out this duty ‘fairly and in an even handed manner’. He or she must never approach the task in an adversarial manner, nor press for a high sentence. Counsel's role should be to assist the judge to arrive at a proper sentence, consistent with other sentences imposed for like offences. In that latter respect, counsel for the Crown should supply to the judge details of such sentences, including, where appropriate, guideline judgments from this Court and other appellate courts.”
  1. In my view, the Crown’s failure to specify that the matter be remitted to a Magistrate with enhanced jurisdiction has contributed to some extent to the outcome appealed from.
  2. Fourthly, while the breadwinner plea can rarely, of itself, be a reason for suspending a sentence, and may therefore attract only limited weight, in the present case, the Respondent also has the care of his 80-year-old mother who is apparently also suffering from medical conditions.[16]
  3. Fifthly, one of the principle considerations for suspension discussed in Mo’unga is where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself. In his recent application for permission to travel to New Zealand, the Respondent exhibited a letter from Mele Prescott of the Salvation Army, who spoke highly of the Respondent and his progress to date in their ‘psycho-educational program’. That is strong evidence, in my view, that the Respondent is taking the opportunity of his suspended sentence to rehabilitate.
  4. However, in order to address the Appellant’s well-founded complaint that the sentence below does not contain any immediate punitive element, I consider it appropriate to vary the sentence in two respects:[17]
  5. While the sentence remains suspended, it is nonetheless a sentence of imprisonment hanging over the Respondent’s head for two years from the date of his original sentence. If during that suspension period, he commits any offence punishable by imprisonment, the suspension may be rescinded and, in that event, he will be required to serve that term of imprisonment in addition to any other which may be imposed for any new offending.
  6. Finally, it should be noted that in the somewhat unusual circumstances of this case, the outcome of the appeal ought not be regarded as a precedent for future cases of causing serious bodily harm. But for the particular features referred to above, the Respondent would be required to serve at least 18 months’ imprisonment.

Result

  1. The appeal is allowed in part.
  2. The primary sentence below of 18 months’ imprisonment, fully suspended for two years, is affirmed.
  3. The balance of the sentence is varied as follows:

NUKU’ALOFA
M. H. Whitten QC
6 September 2022
LORD CHIEF JUSTICE

[1] Report of Dr Angus Cameron, Auckland Oral Heath Regional Service, dated 13 January 2020.
[2] [2021] TOSC 97
[3] Unreported, Supreme Court, CR 19 of 2021, 22 April 2021, Niu J.
[4] Unreported, Supreme Court, CR 5 of 2018, 20 February 2018, Cato ACJ.
[5] Although the written reasons were dated 16 March 2022.
[6] [2020] TOSC 35
[7] Compare offences involving illicit drugs where the 2020 amendments to the Illicit Drugs Control Act have demarcated between offences which fall directly within the Magistrates Court jurisdiction and others which will ordinarily be committed to the Supreme Court.
[8] To which, the Appellant did not agree.
[9] Not ‘broken molars’ as stated by the learned Magistrate.
[10] [40] of the Reasons.
[11] Applied in a number of cases since, including, most recently, R v S.H. (a pseudonym) [2022] TOSC 34.
[12] 'Eukalite v Police [1994] TLR 80 per Ward CJ.
[13] Referred to by Paulsen LCJ in Rex v Fainga'anuku [2018] TOSC 16 at [33].
[14] Referred to in Rex v Vake [2012] TOCA 7 at [20] and Fainga'anuku at [32].
[15] Applied recently in Attorney General v Leka [2021] TOCA 1.
[16] From the Respondent’s application for permission to travel to New Zealand filed on 18 July 2022 and which was refused on 20 July 2022.
[17] As permitted by s 80 of the Magistrates Court Act.

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