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Attorney General v Fainga'a [2024] TOCA 26; AC 30 of 2024 (20 November 2024)

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

[AC 30 /2024]

[CR 27/2023]

BETWEEN

ATTORNEY GENERAL
First Appellant

AND
KALOLAINE FAINGA’A
Respondent

Hearing: 11 November 2024
Court: Randerson J, Harrison J and Dalton J
Counsel: Sesilia ‘Eliesa for the Appellant
: The Respondent in person
Judgment: 20 November 2024

Background

[1] The Attorney-General has been granted leave to appeal under s 17B of the Court of Appeal Act against a sentence imposed in the Supreme Court.^[1]
[2] The respondent was sentenced on 20 September 2023 by Acting Lord Chief Justice Tupou KC after she pleaded guilty to one count of receiving stolen goods contrary to s 148(1) of the Criminal Offences Act. The respondent was sentenced to 22 months imprisonment to be fully suspended for a period of two years on conditions, including that she complete 80 hours of community service under the supervision of a probation officer. The sentence of community service was stayed at the time leave to appeal was granted.
[3] The appeal is advanced on the basis that the decision to fully suspend the term of imprisonment fell outside the range imposed by the Courts for similar offending, thereby rendering the sentence manifestly inadequate.

The circumstances of the offending

[4] The respondent was sentenced along with two other offenders convicted for the theft on 4 June 2022 of a motor vehicle valued at $23,000. They had taken the stolen vehicle to the respondent’s home. In exchange for the vehicle, the respondent gave the other offenders cigarettes and $50. The respondent used the vehicle but abandoned it soon afterwards. It was recovered by the police two days later and it had suffered some damage. The respondent co-operated with the police, admitted the offending and pleaded guilty at the earliest opportunity.
[5] The sentencing judge noted that the respondent was 31 years of age and had enjoyed a stable upbringing with supportive parents and other family. Her husband was a repeat offender who had been in and out of prison for drug related offences. She and her husband shared four children aged between three and 14 years. She had begun using drugs which led to criminal activities and, in 2021, she was apprehended for attempting to commit suicide. She had not seen her husband since she had been imprisoned for other offending which we discuss further below.
[6] There was a favourable probation report. The probation officer was of the view it was possible for the respondent to be a good mother if she attended rehabilitation. A fully suspended sentence was recommended on conditions.

The Judge’s approach to sentencing

[7] The Judge adopted a starting point of two years imprisonment having regard to the seriousness of the offence, the impact on the complainant despite the vehicle being recovered, the respondent’s use of the vehicle and its abandonment, comparable sentences and the sentencing objectives of deterrence and protection of the community and property. She accepted the Crown submission that there should be a six month deduction for the respondent’s early guilty plea and recovery of the vehicle. The Judge settled on a final sentence of 22 months imprisonment.

Suspension of the sentence of imprisonment

[8] The Judge below referred to the well-known principles upon which a sentence may be suspended for the whole or part of the sentence for any period up to three years.^[2] She then set out her reasons:

79. I have read and pondered long and hard on the Pre-sentencing report and its recommendation for the Defendant's sentence to be fully suspended. I have considered the following relevant issues highlighted in that report:
    1. the influence her now divorced husband's drug use had on the Defendant,

b) the attempt to take her own life,

100. her early release from prison as a result of the prisons remission program,

d) her remorse and change as observed by Prison Officer Fotofili,

5. her realisation of her neglect of her children and expressed desire to be a better mother to them, and
6. the good support system she has in her parents and siblings who are willing to stand by and support her.

80. I am persuaded that her early release from prison and realisation her neglect of her children and desire to be a better person indicate her ability to respond positively to the deterrent effect of a suspended sentence. In light of the attempted self-harm, I consider her vulnerable and sending her back to prison may not be ideal for her at this point in her life. There is to some extend a diminution of culpability in that she used the vehicle and then left it and she cooperated with the police
81. For those reasons, with a degree of caution, I suspend the Defendant's sentence in full on conditions. With the support of her family, the Defendant should take this opportunity to fully rehabilitate herself. She is to understand that this opportunity is unlikely to be available if she appears before any of the courts in future.
    • [9] The 22-month sentence of imprisonment was fully suspended for two years on conditions including that the respondent not commit any offence punishable by imprisonment during the period of suspension; probation; reside where directed by a probation officer; not use or consume drugs or alcohol; complete a life skills course and, importantly, complete 80 hours of community service.

Appellant’s submissions

[10] Mrs Lui submitted on behalf of the Attorney-General that the sentencing judge had failed to give sufficient weight to the fact that the respondent was a repeat offender. Rather, she had given considerable weight to the respondent’s attempted suicide and her personal circumstances referred to in the pre-sentence report. The prior offending had also included charges relating to unlawful possession of illicit drugs and utensils. Relevantly, the index offending had occurred while the respondent was on bail for serious house breaking and theft committed a year before. The Crown’s final submission at sentencing was that the respondent should be sentenced to two years imprisonment with the final 9 months suspended.
[11] Closer examination is required to the sequence of events relevant to the theft-related offending. On 8 June 2021, the respondent was convicted of serious house breaking and theft. She was sentenced on 1 August 2022 by former Lord Chief Justice Whitten KC to two years imprisonment with the final eight months suspended for two years on conditions. Counsel was not able to advise the Court the reasons for this lengthy delay. The index offending occurred on 4 June 2022 while she was on bail for the house breaking and theft matter nearly 12 months before. By the time the respondent was sentenced for the index offending on 20 September 2023, she had been released from prison on 18 June 2023 for the prior offending. Her early release resulted from her positive response under a prison remission programme. She remained on the conditions of her suspended sentence imposed by Whitten LCJ.
[12] Sadly, we were informed at the hearing of this appeal that the respondent has pleaded guilty to another charge of serious housebreaking and theft committed on 30 November 2023. Her plea was entered on 15 October 2024 and she is to be sentenced in the Supreme Court on 29 November 2024. We are not able to take this into account in considering the appropriate sentence on this appeal as the fresh offending post-dated the sentence for the index offending. However the respondent has now breached the terms of two suspended sentences imposed upon her and her earlier sentences will necessarily be reconsidered in the Supreme Court.

Our approach

[13] The principles relating to Crown sentencing appeals were set out in this Court’s decision in R v Misinale:^[2]

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.

[14] Given the inevitability of a re-sentencing in consequence of the breach of the respondent’s conditions of the two earlier suspended sentences, we do not propose to undertake a detailed examination of comparable authorities. Although the full suspension of the prison sentence in this case was undoubtedly a compassionate approach, we consider it was within the sentencing discretion of the Judge for the reasons she gave.

Result

[15] The appeal is dismissed.

_________________________________
Randerson J

_________________________________
Harrison J

_________________________________
Dalton J

^[1] Leave was granted by Randerson J on 13 January 2024.

^[2] R v Misinale [1999] TOCA 12; AC 13/99.