Attorney General v Lavulavu [2024] TOSC 25; CR 21 of 2023 (8 May 2024)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

CR 21 of 2023

ATTORNEY GENERAL

-v-

‘ETUATE LAVULAVU

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU KC

Appearances: Mr T. Maka for the Prosecution
The Defendant in person
Date: 8 May, 2024

The charges

1. The Defendant, was found guilty of contempt of court, after a contested hearing of an application brought by the Attorney General for his committal.
2. Briefly, after the Court of Appeal^[1] quashed the convictions and sentences of the Defendant and his wife in October 2022, their trial in the court below attracted much media attention. VPON Media and Broadcasting ran a total of 10 programs of interviews with the Defendant to discuss the case. The programs were live streamed via Facebook and YouTube.
3. During the live streamed program on 26 October 2022, the Defendant in response to a question from the interviewer, said:

“Yes I believe that is what happened and it was not just me who saw them I was very surprised ....... But they are political figures, two of them and others who are higher level than the Judge.... I really felt that he believed these people who were trying to mislead him from the side and that’s where the truth was lost...”

4. The Attorney General’s application consisted of 6 allegations of contempt of court, for statements made by the Defendant in the above-mentioned program.
5. After a preliminary hearing before Lord Chief Justice Whitten KC on 28 February, 2023, it was determined that there was a prima facie case of contempt against the Defendant for only one of those allegations, i.e., that the statement quoted at paragraph 3 above imputed the trial Judge’s decision was influenced by political figures and persons of high rank.

Crown’s Submissions

6. The Crown submitted the aggravating factors were:
   1. the statement struck at the core function of a Judge and his oath to perform truly and with impartiality, his duties as a Judge;
   2. the statement was widely published in Tonga and abroad;
   100. the Defendant maintained his not guilty plea throughout the proceedings; and
   4. the statements have severely impacted the judiciary and undermined public confidence in the administration of justice in Tonga.
7. The Crown submitted there were no mitigating factors in favour of the Defendant.

Comparable Sentences

1. Attorney General v Ulakai [1999] TongaLawRp 47 - the Defendants were found guilty of contempt of court for broadcasting the contents of a statement of claim from an action that had been filed in the Supreme Court by the fourth defendant. The Defendant responsible for supplying the statement of claim was fined $3,000.00.
2. Attorney General v Fusitu’a [1997] TOLawRP 8 – The Attorney General sought orders for the committal of the Respondents for contempt of court. It was alleged that stating if the judgment of the then Chief Justice was overturned he should be prosecuted or impeached. The Attorney General assertion amounted to questioning the Chief Justice’s independence and a suggestion that the Supreme Court was manipulated by the Legislative Assembly. The First Respondent retracted his words and apologised for them. Both Respondents were found guilty and fined $1,000 for the First Respondent and $500 for the Second Respondent.

100. Attorney General v Tapueluelu [2013] TOSC 48 - The Attorney General sought orders for the committal of the Respondents for contempt in respect of an article published on the Kele’a newspaper. Three of the 6 offending passages were found to have amounted to lowering public confidence in the court and the Respondents was found guilty of contempt. A public apology was published on the Kele’a and the Respondents were fined $2,500 each and were upheld as appropriate on appeal.

4. Attorney General v Vatikani [2015] TOSC 23 - The Attorney General lodged an application to commit the Respondents for contempt in relation to an article that was published on the Kele’a. The Article contended that Magistrate Salesi Mafi was influenced by Clive Edwards, William Edwards and ‘Aholotu Palu to convict and discharge two accused. They were found guilty of contempt and fined $1,250 for the First Respondent and $750.00 for the Second Respondent to be paid within two months.

Crown’s Position on Sentencing

8. The Crown seeks a penalty of imprisonment, and suggests 3 months imprisonment was appropriate. However, after the Defendant apologised to the Court of Appeal as well as via VPON Media and Broadcasting live stream, the Crown filed supplementary submissions seeking to reduce the penalty to 2 months imprisonment.
9. The absence of a precedent for a custodial sentence in Tonga was acknowledged, but it was argued that the seriousness of the contempt and the fact the program is still available on Facebook and YouTube warranted such punishment. A fine was submitted as insufficient but if the Court was to impose one, then it should be a substantial fine. A fine of $20,000 was suggested. In support, it was submitted that the Defendant is the Project Manager for Inter-Pacific Ltd for Vava’u and he owns a consultancy company known as Tonga Media and Public Relation Ltd.

The Defendant’s Sentencing Submissions

10. In summary, the Defendant conceded that a fine was an appropriate sentence but the $20,000 suggested by the Crown was “too expensive”. He submitted that the Crown had not established that a custodial sentence was appropriate and that to recommend a sentence was not appropriate.

Considerations

11. The Crown’s application was for the Defendant to be committed if contempt was proved. As demonstrated by the comparable cases cited by the Crown, the courts have not deemed it fit to impose such a sentence in these types of cases. It has rarely imposed in “media contempt” cases and should only be used in the most serious cases.^[2]
12. Allegations that a Judge is partial or biased are calculated to bring that Judge into contempt and have been considered by this court as serious for they undermine confidence in the basic function of a Judge.^[3]
13. In Namoa v Attorney General^[4], the court of appeal cited the relevant law as set out in Halsbury [at 21] which state:

"....... Any act done or writing published which is calculated to bring a court or a judge into contempt, or to lower his [or her] authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of court.

Thus scurrilous abuse of a judge or court, or attacks on the personal character of a judge, are punishable contempt. The punishment is inflicted, not for the purpose of protecting either the court as a whole or the individual judges of the court from a repetition of the attack, but of protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the authority of the tribunal is undermined or impaired. In consequence, the court has regarded with particular seriousness allegations of partiality or bias on the part of a judge or a court.

On the other hand, criticism of a judge's conduct or of the conduct of a court, even if strongly worded, is not contempt provided that the criticism is fair, temperate and made in good faith and is not directed to the personal character of a judge or to the impartiality of a judge or court."

14. The Crown referred to R v Herald & Weekly Times Pty Ltd^[5], where relevant considerations a court should contemplate when sentencing for contempt was discussed. Bearing in mind those considerations as well as the guidelines in the Attorney General v Ulakai, where Chief Justice Ward said:

“The court decides the seriousness of the contempt and the likelihood and degree of interference with the due administration of justice and the culpability of the offender. Those, together with the subsequent actions of the offender are, therefore, the principal considerations in deciding the proper sentence.”

15. I also note in the same judgment, His Honour considered the degree of the Defendant’s culpability by measure of his intentions. I have considered the comparable cases referred to by the Crown and have thought long and hard about the appropriate sentence to impose. I do not accept that a custodial sentence is warranted but that the fine imposed must be substantial and I will explain why.
16. Firstly, the Defendant embarked on speaking about his trial in this court and events surrounding the quashing of his sentence by the Court of Appeal via live stream. According to him it was off the cuff and unscripted. In my view, it was prone to overstepping the confines of fair and reasonable criticism into contempt as he did.
17. Secondly, in the relevant program, and during these proceedings, the Defendant demonstrated a high level of research skills and knowledge of what was applicable to his case. It has led me to the view that he ought to have known ascribing bias to the trial Judge by allegations of having being influenced by political figures and persons ranking higher than him was contemptuous. He is a former Cabinet Minister, a Member of Parliament, a businessman, founder of a university and should have known better.
18. Thirdly, advanced technology today, has made the creation and publishing of content by any person at any time widely accessible and at very little to no cost. Such advancements, when used safely, of course benefits society. Similarly, its user friendly nature makes it susceptible to misuse and/or abuse. And when used in the latter, damage to individual’s rights, privacy, reputation and institutions such as the courts in this case is at the click of a button to an infinite audience. It is disappointing, as noted by the Crown, that the offending program is still up and available on YouTube.
19. Lastly, the instant contempt was a direct allegation of bias against the trial Judge. Bias, if proven, may fall under judicial misconduct. The allegation is that serious. It seeks to question the credibility of His Honour’s decision not only on this matter but potentially to all other matters on which he presides. And in a small jurisdiction, where the Supreme Court bench consists of 3 Judges, the damage inflicted on the administration of justice is critical.
20. Therefore, any sentence must reflect the society’s denunciation for the contempt, specific deterrence to the Defendant and general deterrence to discourage others who intend to conduct themselves in this manner from doing so, and a warning that they will be severely punished. Aligned to those principles, the court as instruments of order and justice, must not shrink from passing appropriate sentences that also recognise the environment and times in which the offending occurs.
21. The highest penalty of the comparable cases is $3,000. That was 24 years ago when online platforms were not available or used here. To adopt that range is inadequate deterrence to dissuade this Defendant or others from similar acts of contempt.
22. The Crown acknowledged that the means of the Defendant must be considered when imposing a fine. I agree. The range suggested by the Crown was $15,000 to $20,000. The Defendant objected that $20,000 was “too expensive”. He did not argue or present evidence as to his means or inability to pay and chose not to address the court as to what was reasonable and/or why $20,000 was too expensive. That opportunity was available to him but he elected not to take advantage of it.
23. Having regard to the seriousness of the offending, the comparable cases, the principles of denunciation, specific deterrence for the Defendant and a general deterrence to anyone considering such conduct, the principles discussed above and the continuing availability of the offending program on YouTube, I set a starting fine of $20,000.
24. The Defendant is not a first time offender but this is his first conviction for contempt of court. The Court of Appeal decision, AC 10 of 2023 records that upon invitation; the Defendant apologised for what he said about Justice Cooper and withdrew it. In addition, the Defendant has publicly apologised to Justice Cooper and the court in a program recorded on 31 October, 2023 on VPON Media and Broadcasting with Mr. Tonga and is available on YouTube. Accordingly, I deduct $5,000 in mitigation, resulting in a fine of $15,000.
25. In viewing the Defendant’s apology online, it is acknowledged that Mr Tonga also offered an apology to the Court for any harm caused by the program.

Result

26. The Defendant is fined $15,000 to be paid within 4 weeks.
27. Upon failure to pay the fine within the appointed time, the Defendant shall be imprisoned for a period of 2 weeks.
28. The offending program must be removed immediately and the Defendant is to file a memorandum with the court confirming its removal within 7 days from today.
29. Costs in favour of the Applicant
    

Nuku’alofa: 8 May, 2024

P. Tupou KC
ACTING LORD CHIEF JUSTICE

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^[1] Lavulavu v R [2022] TOCA 22
^[2] Attorney General v Ulakai [2000] TOSC 3
^[3] Attorney General v Vatikani [2015] TOSC 23
^[4] [2000] TOCA 14
^[5] [2008] VSC 251