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Mo'unga v R [1998] TOLawRp 21; [1998] Tonga LR 154 (7 August 1998)

IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku’alofa

CA 15/97

Mo’unga

v

R

Burchett, Tompkins, Beaumont JJ
4 August 1998; 7 August 1998

Criminal law ⎯imprisonment for property offences ⎯ where appropriate

The appellant and a co-offender pleaded guilty to one count of housebreaking and one count of theft. They were each sentenced to four years imprisonment on the count of housebreaking, and two years imprisonment on the count of theft, the sentences to be concurrent. The appellant appealed against sentence.

Held:

1. Imprisonment for a purely property offence is not appropriate, unless there are unusual circumstances that render imprisonment necessary.

2. There are a number of situations, intended to be neither exhaustive nor comprehensive, in which the suspension of the sentence may be appropriate:

(i) Where the offender is young, has a previous good record, or has had a long period free of criminal activity.

(ii) Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.

(iii) Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender.

(iv) Where there has been cooperation with the authorities.

3. The sentences of four years imprisonment for housebreaking and two years imprisonment for theft were confirmed. The sentence of four years was suspended in part by being suspended for the last year of the sentence.

Cases considered:

R v Petersen [1994] 2 NZLR 533 (CA)

Statutes considered:

Criminal Justice Act Cap 18

Counsel for appellant: Mr Niu
Counsel for respondent: Mr Malolo

Judgment

The appellant and a co-offender pleaded guilty to one count of housebreaking and one count of theft. They were each sentenced to four years imprisonment on the count of housebreaking, and two years imprisonment on the count of theft, the sentences to be concurrent.

The appellant has appealed against sentence.

The Offending

On 12 January 1997 the appellant and the co-offender decided to rob the warehouse of the Tonga Co-operative Federation Limited. That night they travelled to the warehouse in a van. Using boltcutters, they cut through the compound fence. They each used the boltcutters to gain entrance through louvre windows. The co-offender entered the warehouse and removed twelve cartons of Winfield cigarettes and two cartons of 3lb cans of “Palm” corned beef, passing them to the appellant, who stayed outside.

The appellant and the co-offender loaded the stolen property into a van, and drove to a house where it was divided between the appellant, the co-offender and another person who had driven the van. Later, the appellant endeavoured to conceal his share of the cigarettes on a tax allotment. Some time afterwards he was apprehended. At the time of this offending, he was intoxicated.

The twelve cartons of cigarettes were valued at $11,289.60 and the two cartons of corned beef at $279.36.

The appellant’s history

The appellant is now aged 49. During his early life he was brought up by his grandparents and an uncle. When he was at secondary school, he began to mix with others who were a little older and more “street wise”. In October 1961 he and some others stole some buns and bread. When they were brought before the Court, they were given 10 strokes. In March 1964, when the appellant was 20, he was sentenced to four months imprisonment for, with others, stealing a pig. If the Court thought that this prison sentence for a property offence would straighten the appellant out subsequent events proved it wrong. He embarked on a life of crime. It must have been only a few weeks after his release that he was back behind bars.

From then until August 1988, he amassed no fewer than 54 convictions, mostly for theft and housebreaking, but also six for escaping from prison and some for other offences. For all but a few, he was sentenced to prison for terms that varied from two months to seven years. He has no convictions for any offence involving violence.

In 1975 he married. He and his wife had one daughter. The marriage ended in divorce in 1983. In 1992 he remarried, and now has a young family. In November 1996 their five month old baby died, which caused him and his wife considerable distress. His wife has confirmed that he is a good father, although there have been upsets caused by his drinking.

Reasons for sentence

The Chief Justice, when sentencing the appellant and the co-offender, referred to the facts, to the appellant’s history of convictions, to the pressure on his family of a prison sentence, to the need to protect the public, and to his being entitled to lean toward mercy. He said the offending and background were such that he was unable to suspend the sentence. He imposed the sentences to which we have referred.

Submissions in support of the appeal

Mr Niu submitted that the appellant should have been sentenced to imprisonment, but that the sentence should have been suspended for the whole of the four year term. In support, he submitted that the appellant should never have been sentenced to imprisonment at what he said was the age of fifteen (it is apparent from the sentence records that he was twenty) for the theft of the pig, that it was during this and subsequent sentences that he received, as Mr Niu put it, intensive training in the art of stealing and housebreaking. He referred to the poor conditions in which he and his family were living, to the child dying from pneumonia, and to his attempts to save to build a house for his family. His wife remains supportive.

Mr Niu submitted that his past criminal life can be traced back to the original imprisonment for a minor property offence, and that if that had not occurred, his history may well have been different. For that reason, as well as the four and a half years that had passed without any offending at the time of this offence, he submitted that the interest of the community in rehabilitating the appellant justified suspending the sentence.

The sentence of imprisonment

This Court has said before that imprisonment for a purely property offence is not appropriate, unless there are unusual circumstances that render imprisonment necessary.

Such circumstances are present in this case. This was no minor impulsive theft and breaking in. It was a major, carefully planned operation. The offenders had armed themselves with the necessary equipment and vehicle. They selected premises where a quantity of goods would be present. And they removed such a large quantity of cigarettes that it can only be regarded as a commercial operation for profit.

Also relevant is the appellant’s criminal history. He has been punished for each of those offences. He is not to be punished for them again. The relevance of the history is two fold. First, it demonstrates that the penalties that have been imposed in the past have not acted as a deterrent. This can be a reason for imposing a longer prison sentence than would otherwise be considered appropriate. Secondly, where a person has been an habitual offender, the protection of the public can require a lengthy prison sentence, if only because he cannot offend again while he is in prison. This may have been the reason for the very lengthy sentence of seven years imprisonment for a series of housebreaking offences imposed on 7 January 1969. Yet immediately following what appears to have been an early release, he was at it again. We do not accept Mr Niu’s submissions that the events of March 1964, now some 34 years ago, have any relevance in considering an appropriate sentence for the present offending.

Both the considerations mentioned above apply in the present case. For these reasons we are satisfied that the sentence of four years imprisonment was entirely appropriate.

Should the sentence be suspended?

The real issue on this appeal is whether the sentence should have been suspended in whole or in part. Section 24(3), giving the Court jurisdiction to suspend the whole or part of the sentence for any period up to three years, is silent on the criteria to be considered in deciding whether a sentence should be suspended. In New Zealand, where there also are no criteria in the relevant statutory provisions, the Court of Appeal, in R v Petersen [1994] 2 NZLR 533 (CA), in a judgment delivered by Eichelbaum CJ, said that the suspended sentence is intended to have a strong deterrent effect, so that if the offender is incapable of responding to a deterrent, it should not be imposed. Apart from that, the Court suggested a number of situations, intended to be neither exhaustive nor comprehensive, in which the suspension of the sentence may be appropriate:

(i) Where the offender is young, has a previous good record, or has had a long period free of criminal activity.

(ii) Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself or herself.

(iii) Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender.

(iv) Where there has been cooperation with the authorities.

We see no reason why this approach should not be followed in Tonga. To apply it in this case, the appellant has had four and a half years free of criminal activity. Normally, that can hardly be regarded as a long period. But given his previous pattern of continuous offending, it does show a desire to break that pattern. This, no doubt, has been in large part due to his marriage in 1992, the birth of his children, and his wife’s influence. We note the comment in the probation report that his wife was angry and upset at the offending, having believed that he was now a law abiding person.

The earlier pattern of continuing offending suggests that rehabilitation is unlikely. But again, the offence free period gives some grounds for concluding that he may be able to cease further criminal activity, despite the offences on this present occasion. He is now 49. Whilst the offending was continuous up to 1980, when he would have been 32, since that time he has appeared before the Court on four occasions, including the present.

We do not find any diminution of culpability, as referred to in Petersen. Although there may have been some encouragement from the co-offender, who suggested the undertaking in the first place, that does not lessen the appellant’s culpability for the offending. There has been some co-operation with the authorities, if only to the extent that he pleaded guilty to the charges.

Conclusion

Two considerations need to be reconciled. First, the serious nature of the offending, coupled with the long criminal history, require a lengthy sentence that will be a deterrent to this appellant and to others, and will mark the community’s condemnation of criminal conduct of this kind and degree. Secondly, it is in the community’s interests for the sentence to be one which will encourage the appellant in his rehabilitation, and will help him to break the cycle of offending.

We have reached the conclusion that these considerations can best be reconciled by affirming the sentence of imprisonment of four years, and by suspending the last year of that sentence. The three years he will spend in prison should itself be an effective deterrent, and the year with the sentence hanging over him should be an added encouragement to put a life of crime behind him.

We draw attention to s 24(3)(b) of the Criminal Justice Act (Cap 18), which provides that a suspended sentence is conditional on the offender not being convicted of an offence punishable by imprisonment during the period of the suspension. If he should be convicted of such an offence during the term of the suspension, we expect that he will be sentenced to serve the term of the suspended sentence, that is the whole of that term, in addition to any sentence imposed for the offence for which he has been convicted, pursuant to s 24(3)(c). We direct the Registrar of the Supreme Court to give to the appellant a notice stating in simple terms the consequences of re-offending.

Had we the power to do so, we would have placed the appellant on probation for that last year while the sentence is suspended, with conditions that would, along with the guidance of the probation officer, have helped the appellant with his rehabilitation. But s 198, concerning the probation of offenders, does not give the Court power to order probation during a suspended sentence. We recommend to the Government that consideration be given to re-enacting the probation provisions to enable this to be done, as is commonly the case in overseas jurisdictions. The rehabilitative effect of a suspended sentence will be significantly enhanced if, during the time the offender is serving the suspended sentence, he or she has the benefit of the supervision of a probation officer, and is required to comply with appropriate conditions, such as abstaining from alcohol. Any such provisions will need to provide an effective sanction for the breach of any conditions imposed. At the same time, the legislature may think it appropriate to review and modernise the provisions generally dealing with the suspension of sentences, the powers and discretions of the Court in respect of sentencing, and probation.

The result of the appeal

The sentences of four years imprisonment for housebreaking and two years imprisonment for theft are confirmed. The sentence of four years is suspended in part by being suspended for the last year of the sentence.