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Salt v Rex [2010] TOCA 14; AC 30 of 2009 (14 July 2010)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY APPEAL

NO. AC 30 of 2009

BETWEEN:

SAMISONI SALT
Appellant

AND:

REX
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr. Fifita for the Appellant
Mr. Sisifa for the Respondent

Date of Hearing: 6 July 2010
Date of Judgment: 14 July 2010

JUDGMENT OF THE COURT

[1] This is an appeal, filed on 28 October 2009, from a custodial sentence of 2 years imprisonment imposed by Shuster J of the Supreme Court of Tonga on 19 September 2009. The appellant and Mr Viliami 'Otutoa, a fellow employee, admitted to the theft of 7 cartons of Winfield Blue cigarettes worth $17,640.00 and 15 cartons of Pall Mall Blue cigarettes worth $18,750.00 on or about 9 January 2009 from a bonded container belonging to the British American Tobacco Company (BATC) at Queen Salote Wharf, Nuku'alofa.

BRIEF FACTS AND BACKGROUND

[2] The appellant is a 35 year old married man with 5 children who started working at the Queen Salote Wharf for the Port Authority in 2002 as a tally clerk and was promoted to assistant manifest supervisor in 2007. On 31 December 2008 the BATC tobacco container arrived from abroad at the Queen Salote Wharf. The complainant, Mr Manoa Tu'itupou, went to release the bonded container on 14 January 2009 when he noticed that some of the contents were missing. He lodged a complaint with the police who commenced an investigation, together with the HM customs and Port officials. The appellant and Mr Viliami 'Otutoa were arrested. In the police interview the accused admitted stealing the cigarettes and selling 6 cartons of Winfield Blue to shop owners, Shen Fu Fen and Qian Xi Yun and giving 15 cartons of Pall Mall Blues to Mr Solomone Payne for safe keeping. Subsequently more of the cigarettes were sold and the rest of the tobacco was kept at Mr Solomone Payne's home from where it was later stolen.

GROUNDS OF APPEAL

[3] The point raised by the appellant is a narrow one. It is simply that the trial judge erred in imposing a custodial sentence of 2 years imprisonment without suspending any part of it. It is contended the sentence is excessive in the circumstances of the case. The appellant contends he was a "first property offender" and the offence was not premeditated.

DISPOSITION OF APPEAL