IN THE SUPREME COURT OF TONGA
CRIMINAL APPEAL JURISDICTION
NUKU'ALOFA REGISTRY

NO. CR. APP.17/01

BETWEEN:

PILIOTE VEA
Appellant

AND:

POLICE
Respondent

BEFORE THE HON. MR JUSTICE FORD

Counsel: Mr Piukala for the appellant and
Mr Fusitua for the respondent.

Date of hearing: 5 October 2001.
Date of judgment: 6 November 2001.

JUDGMENT

In April this year the appellant pleaded guilty in the Magistrates' Court to one charge of common assault contrary to section 112 (a) of the Criminal Offences Act (CAP. 18) and one charge of causing a disturbance in breach of section 3 (g) of the Order in Public Places Act (CAP. 37).

On the disturbance charge he was convicted and fined $50, or, in default, 14 days imprisonment. On the assault charge he was convicted and sentenced to 3 months imprisonment. He subsequently appealed to this Court.

The appellant's initial grounds of appeal (filed by another counsel) were confusing in that they referred to both charges and alleged, in part, that the magistrate's decision erred in fact and in law "in finding and holding" that the complainant was assaulted by the appellant. That ground of appeal seemed to overlook the fact that the appellant had pleaded guilty to both charges.

At the appeal hearing, Mr Piukala, who had not been involved in the case prior to that stage, (and was, in fact, the third counsel on the record) made it clear that the appellant was not challenging the sentence on the disturbance charge but he was appealing the severity of the 3 months imprisonment on the assault charge. His submissions were more focused than the various points made in the original grounds of appeal.

When the case had been called in the Magistrates' Court the appellant was then represented by his first counsel. After the guilty plea had been entered, the police prosecutor proceeded to outline the summary of facts. The court translation of what he said reads as follows:

"Sir, a short history of what happened. On the night of 15 March 2001 the complainant was travelling in her car passing the accused who was standing on the roadside of Taufa'ahau road in Ha'ateiho. The accused threw something towards the car and the complainant turned back and asked the accused, Piliote Vea, why he had thrown something at the car. This enraged the accused who then began to verbally abuse the complainant. An argument ensued between the two. Your Worship, the complainant is a pregnant woman. The accused then threw a punch at the complainant's face which she dodged causing the blow to strike her on the shoulder. The complainant, fearful that the accused might punch her stomach endangering her pregnancy, fled to her residence. The accused was not satisfied by this and chased her all the way to her home where he yelled the obscenities that are stated in the summons 148/2001. Your Worship these are the accused's previous convictions:

1.	Nukunuku Magistrates' Court -- 6/11/95 -- assault -- Convicted and sentenced to a fine of $50 and $50 compensation Cr. 763/95.

2.	Nuku'alofa Magistrates' Court -- 29/3/97 -- assault -- Convicted and sentenced to a fine of $150 and $50 compensation Cr 156/97."

The "obscenities" stated in the summons are that he (the appellant) would tear her (the complainant's) anus and genitals apart and destroy her family.

The first counsel, who was then appearing for the appellant, (an experienced lawyer) made submissions in mitigation. Before passing sentence, the learned magistrate made the following remarks:

"There are three important considerations that I am taking into account in these proceedings:

(i)	The complainant is a married woman, pregnant and about to give birth.

(ii)	The reason the offences came about were that you were drunk in a public place.

(iii)	You have been convicted twice previously for the very same offence and it seems that you have still not learned anything from your two previous convictions for assault."

At the appeal hearing before me, counsel for the appellant submitted that neither the appellant or his friend had thrown anything at the complainant's car and, although there was an argument and the appellant had hit the complainant, his version is that he was simply wanting her to leave. Counsel said that when the appellant followed the complainant to her home he was wanting to talk to her and tell her that nothing had been thrown at her car.

Mr Piukala then submitted that the magistrate had made a mistake in principle in that he had no evidence before him to support the "important consideration" he had referred to in sentencing about the appellant being drunk in a public place. He also submitted that, although the complainant was pregnant, there was nothing in the evidence to suggest that she was "about to give birth".

Finally, Mr Piukala submitted that even allowing for the two previous convictions, the sentence of three months imprisonment was excessive. He told the court that the appellant was 25 years of age and single. He is a member of the Mormon Church and he lives at the village with his parents. He is very remorseful and he had entered a guilty plea.

For the Crown, Mr Fusitua submitted that the statement in the grounds of appeal that the appellant did not assault the complainant and the suggestion in submissions that he did not throw anything at the complainant's car was "tantamount to a belated not guilty plea" and, as Crown counsel put it, the appellant was faced with the dichotomy of trying to seek credit for a guilty plea on the one hand while at the same time he appeared to be making submissions that he was not guilty.

Crown counsel accepted that there was no reference in the summary of facts to the complainant being in an advanced stage of pregnancy nor to the accused being drunk at the time of the offending but he submitted that there were aggravated features of the offending and, in any event, the custodial sentence was not excessive.

This Court will not intervene in the exercise of a magistrate's discretion on sentencing unless an appellant can establish that the sentence in question is manifestly excessive or manifestly inadequate or wrong in principle.

I agree with Crown counsel's submissions in relation to the appellant's belated attempt to dispute the facts. The factual allegations were stated very clearly in the summary of facts and they were not challenged in mitigation by the experienced solicitor who was then acting for the appellant. I am not prepared to entertain the ground of appeal relating to any alleged factual discrepancies.

 Counsel for the appellant has, however, been able to point to an error in principle in the magistrate's decision in that there is no evidence in the record to suggest that the appellant was drunk at the time of the offending and yet the magistrate stated that this was one of the three "important considerations" which he was taking into account.

In imposing any sentence, a magistrate cannot go beyond the facts that are before the court. The same applies to the suggestion that the magistrate may have overstated the exact state of the woman's pregnancy. A sentencer must take care to ensure that in imposing sentence, he does not embellish in any way the actual facts before the court.

Having said that, however, in the context of this case, I do not regard the apparent errors by the magistrate as sufficiently serious to warrant the setting aside of his decision. In fact, it is not entirely clear why the magistrate regarded his mistaken finding of drunkenness on the part of the appellant as one of the three "important considerations". The nature of the offending, as described in the summary of facts, is just as serious whether the appellant was in a drunk or sober state at the time. I suspect, in any event, that the magistrate made the comment solely in relation to the disturbance charge and, of course, there is no appeal against that decision.

The maximum penalty for common assault is a fine not exceeding $500 or imprisonment for any period not exceeding 1 year or both.

To my mind, this was a despicable, cowardly assault on a pregnant woman by a 25 year-old young man with two previous convictions for assault. The appellant appeared before me as a well-built individual who, I have no doubt, was perfectly able to look after himself. The assault was completely unprovoked. That sort of conduct will not be condoned in any way by this Court and in my judgment the magistrate was quite entitled to impose the custodial sentence he did. The whole ordeal must have been a totally terrifying experience for the complainant and the appellant comes out of it with no credit whatsoever apart, perhaps, from some entitlement to credit in recognition of his early guilty plea.

The magistrate did not specifically refer to the guilty plea in his sentencing decision but the point had been clearly made to him by counsel in mitigation and I am confident that he would have taken the matter into account in fixing penalty. Magistrates should, however, be aware of the recent direction issued by the Court of Appeal in Wall v Rex (unreported), judgment dated 27 July 2001, where the court said:

"Where a reduction is made for a guilty plea, we consider it desirable for the amount of that reduction to be stated by the sentencing judge."

Taking all relevant factors into account, I do not regard the sentence as manifestly excessive. I have given careful consideration as to whether the custodial term should be suspended in whole or in part but, having regard to the appellant's two previous convictions for assault in 1995 and 1997, I cannot be confident that he is the sort of person who is likely to take the opportunity offered by a suspension of the sentence to rehabilitate himself. That is one of the important tests referred to by the Court of Appeal in Mo'unga v The Crown (unreported) Appeal No 15/97, judgment dated 7 Aug 1998. On the contrary, I agree with Crown counsel's submission that the appellant does not appear to have learned from his two previous non-custodial sentences and it is now time for him to be made accountable.

The appeal is accordingly dismissed.

NUKU'ALOFA: 6 November 2001.

JUDGE