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Tupa v R [2021] TOCA 8; AC 1 of 2021 (13 July 2021)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY


AC 1 of 2021

(CR 76 & 105 of 2017)

BETWEEN:


PENISIMANI TUPA

Applicant (proposed Appellant)


-v-


REX

Respondent


Application for leave to appeal out of time against sentence


RULING


BEFORE: WHITTEN P
To: Mr S. Fili for the Applicant
Mr J. Lutui DPP for the Respondent
Sentence: 8 December 2017
Application: 2 July 2021
Ruling: 13 July 2021


  1. In proceeding CR 76/17, the applicant pleaded guilty upon arraignment to three counts of serious housebreaking and three counts of theft. The offending occurred on 13 October 2015. The stolen goods comprised Tongan mats to the value of $8,400, $2,200 and $1,800 respectively. According to the summary of facts, the applicant pawned the goods stolen from the residences of the second and third complainants to buy methamphetamines.
  2. In proceeding CR 105/17, the applicant pleaded guilty to possession of 0.156 g of methamphetamine whilst he was in police custody and being taken to Vaiola Hospital. That offending occurred on 28 December 2017.
  3. On 8 December 2017, Cato J imposed sentences in both proceedings.
  4. In his sentencing remarks, his Honour placed emphasis on the applicant’s extensive criminal history. It began with a conviction in 2008 for unlawful entry and, in the same year, seven counts of housebreaking and theft for which the applicant was given a community-based sentence. He was further convicted in the same year of another five counts respectively of housebreaking and theft which resulted in a sentence of 5 years imprisonment. In 2012, he was sentenced to a further 3 years for housebreaking, the final year being suspended. In 2016, he was convicted of negligent driving resulting in injury and sentenced to 3 years imprisonment with the final year of that sentence suspended. Later, in 2016, he was sentenced to 1 year imprisonment for escaping from lawful custody. His Honour described the applicant as a recidivist house breaker who had been treated leniently in the past.
  5. On that basis, the judge set a starting point for the head housebreaking count (for which the maximum sentence is 10 years imprisonment) of 6 years imprisonment. He reduced that starting point by 12 months for the applicant’s early guilty plea resulting in a sentence of 5 years imprisonment. For the other two counts of housebreaking, he was sentenced to 3 years imprisonment to be served concurrently with the sentence on count 1. In relation to the thefts (the maximum sentence for which is 7 years imprisonment), and again after taking into account the applicant's guilty plea, the judge imposed a sentence of 3½ years imprisonment for the highest value count. Twelve months of that sentence was ordered to be served cumulatively with the sentence on count 1 making an overall sentence of 6 years imprisonment. For the theft counts of lesser value, the applicant was sentenced to 18 months imprisonment to be served concurrently with count 1.
  6. In relation to the possession of methamphetamines, after again taking into account the applicant's guilty plea, the judge imposed a sentence of 9 months imprisonment. That sentence was added to the head sentence in CR 76/17 making an overall sentence of 6 years and 9 months imprisonment for both indictments.
  7. In relation to suspension, the judge noted [10] the applicant's previous sentences involving partial suspension and that the housebreaking offences took place in 2015. Therefore, his Honour opined that the applicant had learned nothing and therefore could not expect further leniency by any further suspensions of sentence.
  8. The judge ordered [11] that the sentences commence when the applicant completed his then current period of imprisonment for negligent driving and escaping from lawful custody (which was expected in 2020). His Honour added:
"I do not consider applying the totality principle that the sentences imposed here cumulative upon his existing sentences of imprisonment is excessive. It is, in my view, an appropriate response to his recidivism and his contumelious disregard of the law".
  1. The judge recorded [12] the Prosecution's advice that the applicant was not entitled to have the sentences backdated because his remand in custody for the instant offending coincided with the terms of imprisonment he was serving for other offending.
  2. On 2 July 2021, the applicant, by his lawyer, Mr Fili, filed an ex parte application for leave to appeal against his sentences out of time.
  3. The grounds of the application may be summarised as:
  4. By his affidavit in support sworn on 15 December 2020, the applicant deposed to the above factual grounds and says further, in summary, that: