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Valikoula v R [2021] TOCA 5; AC 9 of 2020 (30 March 2021)

IN THE COURT OF APPEAL

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

AC 9 of 2020

[CR 39 & CR 168 of 2020]

TEVITA VALIKOULA

-v-

REX

JUDGMENT

Coram: Whitten P

Moore J

Randerson J

Counsel: Mr S. Fili for the Appellant

Mr J. Lutui DPP for the Respondent

Date of hearing: 23 March 2021

Date of judgment: 30 March 2021

Introduction

1. In June 2020, the Appellant was tried before Niu J on one count of receiving various goods stolen by one, Sione Mafi Lolohea (“Lolohea”), in June 2019, valued at $19,400. On 18 August 2020, the Appellant was convicted.
2. In July 2020, the Appellant was tried, again before Niu J, on one count of abetment to theft in that in May 2019, he encouraged Lolohea to steal 85 kava plants valued at $17,000. On 20 August 2020, the Appellant was again convicted.
3. On 13 October 2020, Niu J sentenced the Appellant to 5 years and 3 months imprisonment on each count, to be served concurrently and without suspension.
   

Grounds

4. In this proceeding, the Appellant seeks leave to appeal against the sentences.[1] Should leave be granted, we will deal with the appeal instanter.
5. From the Notice of Appeal and the Appellant’s Arguments, as filed, the grounds of appeal may be summarised as follows:
   • (a) the sentences were excessive;
   • (b) the Appellant’s time in custody on remand was not taken into account;
   • (c) the Judge took into account ‘ulterior factors’ and proceeded on a ‘mistake of fact’ by considering that the Appellant had lied to the probation officer when interviewed for his pre-sentence report;
   • (d) the sentence is inconsistent with the principle stated by this Court in Mo’unga v R [198] Tonga LR 154 (“Mo’unga”) to effect that imprisonment for a purely property offence is not appropriate unless there are unusual circumstances that render imprisonment necessary;
   • (e) the Appellant should not have received the same sentence the Judge imposed on Lolohea for the actual theft of the goods;
   • (f) consistency with comparable sentences requires the sentence to be reduced to about three years; and
   • (g) since his release from prison in 2016, until the instant offending,^[2] the Appellant had been a ‘gentleman of characters’ who had behaved himself as a law-abiding citizen.

The Judge’s sentencing remarks

6. In his sentencing remarks, the Judge noted^[3] that Lolohea had pleaded guilty to both thefts and had already been sentenced. His Honour then recited a summary of the facts for each of the Appellant’s offences relative to the two thefts committed by Lolohea. In relation to the first, the Judge found that the Appellant drove Lolohea near to the complainant’s home into which Lolohea subsequently broke and entered and that the Appellant transported the stolen goods away in his vehicle. In relation to the second, the Appellant was effectively the mastermind in identifying the allotment from the which the kava was stolen by Lolohea and encouraging him to do so. His Honour then considered the probation report. In it, the Appellant was recorded as saying that he had nothing to do with either offence, that he knew nothing about the thefts and that he was completely innocent of them. The Judge observed that the Appellant had elected not to given evidence in Court to that effect.
7. The probation report set out details of the Appellant being married with nine children. We will return to that part of the report and the Judge’s reaction to it further below.
8. The report also contained reference to the Appellant having a number of health problems including diabetes, high blood pressure and cardiac pathology. Notwithstanding, the Appellant was able to continue his occupation as a taxi driver.
9. The town officer of the village in which the Appellant was born and raised knew the Appellant but had nothing to say in support of him. Conversely, the report referred to the town officer of the village to which the appellant had recently moved as not knowing him well, and that since the Appellant had moved to the village, various crimes had occurred there.
10. The only positive comment obtained by the probation officer was from the Bishop of the LDS church at the Appellant's birth village, who was reported as having seen “a big change and big repentance” in the Appellant’s life. The Bishop asked for the Appellant to remain in his care to ensure those changes continued and became permanent. The Judge noted however that the Bishop gave “no detail or example of such big change or big repentance".
11. In its submissions below, the Crown contended that the appropriate sentence was 3½ years imprisonment on each count with no suspension. The Crown relied on four comparable sentences. Two involved sentences for theft of 2 ½ years imprisonment.^[4] The third resulted in a sentence for theft of two years with the last six months suspended^[5] and the fourth was the sentence in Lolohea. The Appellant's previous convictions were noted, as was the fact that he then had an outstanding charge for possession of illicit drugs.

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