IN THE COURT OF APPEAL OF TONGA	
CRIMINAL JURISDICTION	                                                          AC 14 of 2022
NUKU'ALOFA REGISTRY                                                                   (CR 62 of 2021)
BETWEEN:
ATTORNEY GENERAL                                                                Applicant / Appellant	
-v-
SULIASI NAPA’A FILIMONE	Respondent

JUDGMENT OF THE COURT

Coram:	Whitten P
	de Jersey J
	Harrison J
	Heath J

Appearances:	Mrs T. Vainikolo for the Attorney General 
	The Respondent in person
 
Date of hearing:	6 October 2022
Date of judgment:	10 October 2022

Introduction
1.	This is a Crown appeal against sentence pursuant to s.17B of the Court of Appeal Act.
Background
2.	In the early hours of 24 December 2020, the 21-year-old female complainant was asleep at her grandparents’ residence. The Respondent knew the complainant from church. About 12 hours earlier, the Respondent, who had been estranged from his wife and family for some time, started drinking. At one point, he visited his father’s grave and then continued drinking with others. Around 3 a.m., he broke into the complainant’s home and laid down behind her in bed. When she felt him press against her, she awoke and asked who he was. As she attempted to scream for her grandfather, the Respondent placed his hand over her mouth. He then told her his name and that he loved her. The complainant kicked and pushed the Respondent until he left the house. She continued to call for her grandfather as the Respondent ran off down the street. The complainant identified the Respondent to police including a description of his clothing. 
3.	After his arrest, the Respondent was questioned by police. He admitted to knowing the complainant, having worn the clothing described by her and that he was drunk that night. He also agreed that it was possible the complainant’s account was correct because she knew him well and she was not drunk. Notwithstanding, the Respondent repeatedly denied the offending. In his formal response to the written statement of charges, the Respondent stated that he was “innocent” and that he felt embarrassed that the allegations had been made against him. 
4.	The Respondent was subsequently indicted on one count of serious housebreaking and one count of common assault. The summary of facts concluded that the Respondent had previous convictions. The Crown’s indicative sentencing submission suggested that upon an early guilty plea, the appropriate sentencing range would be 16 to 22 months’ imprisonment on the serious housebreaking and three to five months for the assault, to be served concurrently. The Crown also indicated that, in those circumstances, it would submit that the final 12 months of the sentence be suspended on conditions. 
5.	At his trial on 28 March 2022, the Respondent maintained his innocence.  At its conclusion, Cooper J found the Respondent guilty on both counts. 
6.	The judge then gave directions for sentencing, including for the Crown to file submissions on sentence and a victim impact statement by specified dates prior to sentencing. 
7.	The appeal documents included a letter from the probation office dated 25 May 2021 (almost a year prior) in relation to the subject proceeding and another (CR 63 of 2021) advising that an order by Cooper J on 4 May 2021 for a presentence report to be prepared could not be completed because the Respondent failed to present himself to the probation office or otherwise contact that office. The letter contains a handwritten notation to the effect that a report was never ordered. 
8.	For reasons which were not explained at the time, the Crown failed to file its submissions on sentence or a victim impact statement by the date directed or at all. On the day of sentencing, the Prosecutor requested a two-week adjournment to file that material. In response to that application, the judge said:
“Why? It is just going to make more work … and I suspect my sentence [will be] exactly the same.”

The sentence below
9.	The judge then delivered the following ex tempore sentencing remarks:
“… Really stupid what you did.  It would have been terrifying for Ms Langi to wake up in the middle of the night and see a strange man in her room. This is so serious that only a prison sentence is appropriate. You got a prison sentence of 18 months but I am going to suspend that for two years. You are to abide by these conditions. You are to attend a drink awareness course, you must not commit any offence punishable by imprisonment. Any breach and you will be resentenced …”.
10.	On or about 3 May 2022, the judge issued written sentencing remarks. After reciting the facts, the judge stated:
“13. What is equally plain to me is that a couple of months before his marriage had come to an end. That night he had spent in the grave yard where his father is buried. He was drinking excessively and I have little doubts that he started to ruminate, especially Christmas being a time for being with ones family. No doubt his single status brought feelings of loneliness at this time. 
14. His thoughts returned to Miss Langi and he obviously hatched a plan to see her and declare his feelings. 
15. I have no doubt that it must have been extremely distressing for Miss Langi. To wake and find a man in her room in the middle of the night would have caused a great deal of anxiety and to feel vulnerable not knowing what this strange man's intentions were, or what would happen next. 
16. Having him cover her mouth when she tried to raise the alarm would have been extremely distressing as she lay in bed.” 
11.	His Honour then listed a number of aggravating and mitigating features of the offending. The latter included: 
“i. Defendant acted impulsively; ii. Influenced by alcohol; iii. No intention to frighten; iv. No intention to steal; v. No injuries caused.” 
12.	After noting the maximum statutory penalties, the judge observed:
“19. A difficulty in approaching the sentence for these two offences Mr. Filimone faces is that neither were intended. Both offences do not need any element of animus to be committed, but in almost every case there will be found to exist some. Housebreaking is so often to steal or to commit violent or sexual offences. 
20. Common assault, more often than not is with an intention to harm or cause injury. 
21. In the instant case the harm was to break into the house and bedroom of a young lady. 
22. That said, I have little doubt that Mr. Filimone did not see it like that at the time and really only wanted to tell her he was attracted to her. 
23. But, this must have been a terrifying experience for Miss Langi.”
13.	His Honour then considered a number of comparable sentences, in which starting points of 3 ½ years imprisonment were set. However, as his Honour observed, those cases also involved theft of property of significant value.  
14.	The judge then referred to R v Tuila (CR 146/2011), where the defendant there had been drinking, broke into the victim's house and kissed her while she slept telling her he was her husband. For serious housebreaking, the defendant was sentenced to three years imprisonment and six months for common assault to run concurrently, and without any suspension. The judge noted that while Tuila pleaded guilty, he had a “bad record” of housebreaking and serious assaults, that the common assault there “amounted to a [much more serious] sexual assault” and that the housebreaking “was apparently sexually motivated”. The judge also described the sentence there, as stated in Cato J’s summary, as  "Recidivist offender-deterrence-protection society."
15.	In then seeking to distinguish Tuila from the case before him, the judge observed:
“36. Mr. Filimone, while he was convicted after trial I believe, was because he was ashamed of what he had done and could not bring himself to admit it. 
37. I say that for this reason. On being charged he stated ‘I feel embarrassed that these allegations have been made against me.’
38. I had the distinct impression that on conviction he was actually relieved with the outcome. 
39. There is no evidence before me that he acted with a sexual motive. He did not intend to scare his victim and it appears that through drink, he had not thought through his actions clearly, or their consequences. 
40. I also note that he is someone who works.” 
16.	After reiterating the sentences of imprisonment, the judge then stated:
“45. But, I find there are some exceptional features to this case that allows me to suspend this sentence”,
whereupon he confirmed the suspension of the sentence for two years on the conditions noted above.  
The ground of appeal
17.	The Crown contends that the learned judge erred in law by failing to incorporate any punitive component to the conditions of the fully suspended sentence, thereby resulting in a net sentence that was manifestly inadequate and inappropriate.  To remedy that error, the Crown proposes only that the sentence be varied by adding a further condition of 60 hours community service.
Submissions
18.	In its submissions, the Crown relied on the recent decision of this Court in Attorney General v Kisione Tauvaka (AC 23 of 2021, 24 May 2022) as authority for three propositions. The first two were derived from the oft-cited statement of principle in Rex v Misinale [1999] TOCA 12 on s. 17B Crown appeals against sentence, namely:
“First, for such an appeal to succeed, clear and compelling grounds for increasing the sentence need to be established. It is not sufficient for the appellate court to consider that a more severe sentence could properly be imposed, or that the sentence imposed is inadequate or inappropriate. For a sentence to be increased on a Crown appeal, the appellate court must be satisfied that the sentence is so inadequate or inappropriate that the sentencing judge erred in that he or she must have acted upon a wrong principle, wrongly assessed a relevant circumstance, took into account irrelevant factors, failed to take into account relevant factors, or has imposed a sentence that is inconsistent with sentences the court has imposed for like offending. In such a situation, the appellate court is left with no alternative but to impose a more severe or a different sentence. If the court is so satisfied, the sentence should be increased only to the lower end of the appropriate sentencing range. Indeed, the appellate court, in fixing the proper range for this case, should take into account that it is an added penalty to have to face sentence a second time, and to have hope deferred, and perhaps dashed, in the result.
Secondly, the right of the Crown to appeal affects the course the Crown should take when the sentence is before the sentencing judge. As was said by the Full Court of the Federal Court in R v Tait (1979) 24 ALR 473, 476, after pointing out that a Crown appeal puts the defendant in double jeopardy:
‘It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error. The Crown has been said not to be concerned with sentence .... but when a statutory right of appeal has been conferred on the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions fairly and in an even handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it.’”
19.	The Crown’s third proposition adopted and sought to apply here the approach taken in Tauvaka. In that case, on three occasions in May and June 2020, the Respondent, who was 19 years of age at the time and had no previous convictions, took the keys to one of his employer’s warehouses, broke into it, and stole various goods, the value of which totalled $22,934. He co-operated with police and pleaded guilty at the earliest opportunity. Most of the goods were recovered. This Court agreed that while the sentencing judge’s assessment gave effect to the objectives of specific deterrence and rehabilitation of the Respondent, a fully suspended sentence, without a requirement to perform community service, failed to give sufficient effect to the objectives of punishment, general deterrence and the community’s condemnation of criminal conduct of that kind and degree. 
20.	In further support of its single ground of appeal, the Crown advanced a number of more specific complaints about the approach taken, and findings, by the sentencing judge, including:
(a)	The judge did not expressly identify any of the "exceptional features" which he considered enabled him to fully suspend the sentence.
(b)	If the factors identified by the judge (as appearing in paragraphs 18 and 19 above) were intended by him to represent exceptional circumstances, they were not sufficient "to do away with imposing a punitive component" as one of the conditions of the suspended sentence.
(c)	The judge’s belief that the Respondent ran the matter to trial because he was ashamed of what he had done and could not bring himself to admit it, and that he was relieved when he was convicted, were unsubstantiated and inconsistent with his repeated denials during his record of interview and formal response to the charges. It was submitted that, when read in context, the Respondent’s statement to police about feeling embarrassed ought be construed as meaning that he was embarrassed that the allegations had been made against him, not that he was too embarrassed to admit guilt.
(d)	The judge erred in treating the respondent’s self-induced intoxication as a mitigating factor, rather than a circumstance of aggravation. The evidence of what the Respondent did that night prior to the offending and his statement to police that he was “not that drunk” were contrary to the inferences drawn by the judge that neither of the offences were intended, that the Respondent had not thought through his actions clearly and which were due to drink.
(e)	The judge failed to consider, as an aggravating feature, that the victim was required to give evidence at trial and relive the offending.
(f)	The judge failed to consider that the summary of facts recorded that the respondent had previous convictions.
(g)	The judge failed to consider the Prosecution’s indicative sentencing submission, at the time of issuing the indictment, to effect that if the Respondent pleaded guilty at the earliest opportunity, partial suspension of an 18 month sentence would have been appropriate.
(h)	The judge did not place sufficient weight on the seriousness of the offending and its effect on the victim.
21.	As to the second limb in Misinale, the Crown submitted that its failure to file its submissions and a victim impact statement when directed should not affect it right of appeal against the sentence. In Tauvaka, the Crown also failed to address the sentencing judge on the possibility of a fully suspended sentence and community service as a condition. Notwithstanding, this Court allowed that appeal because it agreed that the sentence did not give sufficient effect to the objectives of punishment, general deterrence and the community’s condemnation of criminal conduct of that kind and degree. In other words, it lacked any punitive component.
22.	The proposed 60 hours of community service (compared to the 40 ordered in Tauvaka) is based on the fact that five months have elapsed since the sentence below (less than that in Tauvaka), the Respondent is 32 years of age (some 13 years older than Tauvaka) and the Respondent was found guilty after a contested trial (whereas Tauvaka pleaded guilty on arraignment).
23.	The Respondent did not file any material on the appeal. During the hearing, he declined an invitation to make submissions. 
Consideration
24.	At first blush and given the relatively narrow challenge and minor nature of the variation to the sentence sought by the Crown, we would have been minded to dismiss the appeal as not presenting a result of the kind contemplated by the first limb of Misinale.    
25.	However, we are satisfied that the number and significance of certain errors of principle and approach below require intervention.
26.	It is obviously unfortunate that the Crown failed in its duty to assist the court as directed, and that it did not contact the Court in advance to advise of its inability to do so. However, it is perhaps even more unfortunate that the judge did not accede to the Prosecutor’s request for a short adjournment to enable the filing of late submissions and a victim impact statement. According to the transcript of the exchanges that day, the judge did not enquire as to the reason/s for the delay or consider what, if any, prejudice might be occasioned to the Respondent by an adjournment. Had he done so, he would have learned, as Mrs Vainikolo candidly explained before us, that the default was due primarily to counsel originally responsible for the matter contracting Covid-19 and suffering an injury. By proceeding as and when he did, the judge was therefore without important information necessary to a proper consideration and formulation of an appropriate sentence. 
27.	As he did not refer to them in his sentencing remarks, it is not clear whether the judge was aware that the summary of facts contained reference to the Respondent having previous convictions or that the Prosecution’s indicative sentencing submission proposed, upon an early guilty plea, a sentence of 18 months (on the head count), with partial suspension.  It is clear from the transcript that the judge did not invite the Prosecutor to make oral submissions on sentence nor did he enquire about the Respondent’s previous convictions. It is also clear that the judge did not invite the Respondent either to make any submissions as to his own antecedents or other matters relevant to the sentencing process. With the added absence of a presentence report, the judge had next to no information before him about the Respondent or the offending, other than what he may have gleaned during the one-day trial.
28.	The majority of the Crown’s specific complaints are not relevant to the object of the appeal as advanced. They may have been relevant had the Crown appealed against the length of sentence or the full suspension of it. For instance, the inferences (or impressions) drawn by the judge about the circumstances leading to, and the Respondent’s motive for, the offending only went to assessing culpability and remorse. Those considerations were obviously factored primarily in the head sentence of 18 months imprisonment, which has not been challenged. So too the judge’s erroneous inclusion of intoxication as a mitigating factor was only relevant to the formulation of the principal sentence and period of imprisonment. Of course, without the judge specifying any starting points, it is difficult to know for sure the extent to which those matters were considered in mitigation.   
29.	Similarly, it was not apparent from the sentencing remarks that, when deciding to suspend the sentence, the judge had regard to the considerations for suspension discussed in Mo’unga v R [1998] Tonga LR 154 at 157, which have been applied in Tonga almost universally since.  His Honour’s failure to identify the “exceptional features” was a significant omission. Even if they were the matters suggested by the Crown here, they could not have been a valid basis for full suspension. On a Mo’unga analysis, the Respondent was not particularly young, he apparently had previous convictions, he did not co-operate with the authorities, any finding as to possible diminution of culpability through lack of premeditation was, in our view, doubtful and there was scant material before the judge to assess the likelihood, if any, of the Respondent taking the opportunity offered by a suspended sentence to rehabilitate himself. But, again, the decision to fully suspend has not been challenged by the Crown.    
30.	In Misinale, this Court observed that the Mo’unga factors are not the only considerations and that:
“… Also relevant may be the seriousness of the offending, the need for an effective deterrence, the effect on the victim, and the personal circumstances of the offender or those dependent on him or her. There may well be others. But although these are factors that may be taken into account in considering whether, and if so for how long, to suspend part or all of a sentence, the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender. If it is not, or if for any reason rehabilitation is not relevant to the sentence to be imposed, suspension of any part of the sentence is in general not appropriate.”
31.	In determining that last question, a Defendant’s previous criminal history is almost always likely to be a powerful indicator of aptitude for rehabilitation. Here, the court records reveal, as counsel for the Appellant confirmed, that:
(a)	in 2011, the Respondent was convicted of manslaughter and sentenced to six years imprisonment; and
(b)	in June 2021, Cooper J sentenced the same Respondent and another for sexual offending to eight months imprisonment, suspended for two years on conditions which included “60 hours of probation”. 
32.	All of these matters not only cast doubt on the correctness of the decision to fully suspend the sentence (had that been appealed) but they also add force to the Crown’s contention that the decision to fully suspend should have included community service. We do not agree that a fully suspended sentence without such a condition necessarily lacks any punitive effect. By definition, a sentence of imprisonment, carries with it a punitive element. Suspension of such a sentence or any part of it still has the effect of the sentence hanging over the head of the Defendant for the period of suspension and may be activated upon breach of any of the conditions of suspension. However, whilst the sentence remains suspended, the Defendant is spared the immediate and more tangible punishment of incarceration.  
33.	We do agree, however, that by not including community service, the fully suspended sentence failed to adequately serve the sentencing objectives of punishment and denunciation for offending of this kind. Further, given the more soundly identified circumstances of the offending and the Respondent’s history, the addition of community service may be considered a very light punitive element to the overall sentence which remains very much at the lower end of the appropriate sentencing range.
Result
34.	For those reasons, the appeal is allowed.
35.	The orders of the Supreme Court are varied by adding as a condition of the suspended sentence that the Respondent complete 60 hours community service as directed by this probation officer. 
36.	The Respondent is reminded that he is required to attend the probation office in relation to this matter within 48 hours of the issuance of this judgment. He is also reminded that failure to comply with the conditions of his suspended sentence may result in the suspension being rescinded, in which case, he will be required to serve the sentence of imprisonment.

Whitten P

de Jersey J

Harrison J

Heath J