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Fangupo v Rex; Fa'aoa v Rex [2010] TOCA 17; AC 34 of 2009; AC 36 of 2009 (14 July 2010)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY APPEAL

NO. AC 34 of 2009

BETWEEN:

TIMOTE FANGUPO
Appellant

AND:

REX
Respondent

APPEAL NO. AC 36 of 2009

BETWEEN:

PENISIMANI FA’AOA
Appellant

AND:

REX
Respondent

Coram: Ford CJ
Salmon J
Moore J

Counsel: Mr Piukala for the Appellants
Mr Sisifa and Ms Puloka for the Respondent

Date of Hearing: 9 July 2010
Date of Judgment: 14 July 2010.

JUDGMENT OF THE COURT

[1] These appeals have two unusual features. The first is that according to what we were told from the Bar by both counsel, this is the first time in almost 30 years that a judge in Tonga has ordered prisoners (the appellants) to be whipped. The second unusual feature is that due to an oversight in the court or prosecution procedures the appellants were sentenced in the Supreme Court on two charges of escaping from lawful custody in respect of which they had already been sentenced in the Magistrates Court. The appellant Fangupo pleaded guilty in the Supreme Court to 3 charges of escape from lawful custody, three charges of housebreaking and three charges of theft. The appellant Fa’aoa pleaded guilty to 3 charges of escape from lawful custody four charges of housebreaking and four charges of theft. Each appellant was sentenced to a total of 13 years imprisonment from the date of release on current sentences they were serving, together with six lashes of either the cat or rod to be supervised by a Doctor and magistrates. The appeals are against these sentences.

Brief facts

[2] The two appellants each have previous convictions. In the case of Fangupo he has two convictions for housebreaking and two for theft over the years 2008 and 2009. In the case of Fa’aoa he has three convictions for housebreaking, three for theft and one for assault with intent to rob, also over the years 2008 and 2009. According to the records before the court both appellants are now just 17 years of age. In May 2009 both appellants broke out of prison three times. On the first occasion they stole goods from a shopping centre to a total value of $3229. On the second escape they were apparently arrested before committing any further crimes. On the third escape they broke into a house and stole goods to the value of $28 and into another house where they stole goods to the value of $7417. Additionally the appellant Fa’aoa broke into a third house where he stole items to the value of $215.50. The appellants appeared before the Magistrates Court in June 2009 where they were charged with and pleaded guilty to the first and third escapes. They were each sentenced to 18 months imprisonment to be served cumulatively upon current sentences at the time. As already recorded they were charged with the same escapes in the Supreme Court and sentenced again there.

The submissions in this court

[3] Counsel for the Crown acknowledged that the duplicate convictions in the Supreme Court would have to be set aside. He also submitted that the whipping penalty should be set aside on the grounds that it is now recognised as a cruel and unusual punishment. He submitted that the prison terms imposed by the judge were excessive. He referred to authority relating to escape offences and to breaking and entering and theft and submitted on the basis of those cases that the appropriate sentence for the remaining escape charge should be in the range of six months to 18 months imprisonment and asked the court to consider whether that should be served concurrently with the 18 months imprisonment imposed by the magistrates court. In respect of the housebreaking charges he suggested a range of 2 to 3 years imprisonment for each charge and in respect of the theft charges a range of nine months to 1 year for each charge. Again he invited the court to consider whether the housebreaking and theft charges should be concurrent. He also submitted that it would be appropriate to consider suspending part of the sentence. He acknowledged however that the offences were premeditated and that the previous sentences imposed on the appellants had failed to rehabilitate and deter them from further offending. Counsel for the appellants supported the submissions made on behalf of the Crown.

Discussion

[4] There is no doubt that the two duplicate sentences for escaping from lawful custody should be set aside. The whipping sentence was imposed on the third escape from custody so that for that reason alone that part of the sentence would need to be reconsidered. In his sentencing remarks the judge appears to have taken into account in fixing sentence the fact that there had been assaults on prison staff in ‘Eua and the burning of the prison in Tongatapu. There is no suggestion that either of the appellants had anything at all to do with either of these incidents indeed their offending and their imprisonment is on the island of Vava’u. The judge was obviously wrong to take those matters into account. Additionally we have concluded that the prison sentences imposed by the judge and the sentence of whipping were excessive. For all the above reasons we are able to ignore the exercise of sentencing discretion by the judge and exercise our own.

[5] In relation to the sentence for escaping from custody counsel relied upon the decision of this Court in Malafu v R [2002] Tonga LR 244. That was a case where the appellant was sentenced to 6 months imprisonment for escaping from lawful detention but he also was sentenced to a total of nine years imprisonment for other offences. He appealed against his sentence and the appeal was dismissed. In concluding whether the sentence was excessive the court was concerned with the longer sentences rather than the short one imposed on escaping. We do not think that that case assists us in determining the appropriate sentence for the one remaining escape charge. In relation to the breaking and entering and theft charges counsel referred us to the sentencing remarks of Ford J in Kafalava made in May 2006. That case is helpful. The prisoners were charged with varying numbers of housebreaking and theft charges and were sentenced to terms of imprisonment ranging from 2 years to 6 years. All pleaded guilty. They ranged in age from 21 to 29. The maximum sentence for theft is two years imprisonment if the goods stolen have a value less than $500 and seven years imprisonment if the goods stolen are over that value. Housebreaking carries a maximum sentence of 10 years imprisonment.