IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU’ALOFA REGISTRY

NO. AM.10/04

BETWEEN:

SOSEFO HOKO
Appellant

AND:

POLICE
Respondent

BEFORE THE HON JUSTICE FORD

Counsel: Mrs Vaihu for the appellant and 
Ms Raas for the respondent.

Date of hearing: 21st May, 2004.
Date of judgment: 24th May, 2004.

JUDGMENT

The appellant appeals against a sentence imposed on him in the Magistrates' Court on 10 February 2004.

At the hearing in the lower court, the appellant, who was not represented by legal counsel, pleaded guilty to one charge of being found by night in an enclosed area without lawful justification, contrary to section 175 (1) of the Criminal Offences Act (CAP. 18).

I will set out in full the translated statement of facts given to the magistrate by the police prosecutor:

"A short history of the incident. On the night 9 January 2004, the accused was drunk with some boys who were living at Manase Moala's place at Veitonga. The accused went and entered the place of the complainant and the complainant's wife saw him standing outside their house. The wife went and woke her husband Manase Moala. The complainant came and saw the accused standing outside their house. He shone a torch and saw that it was the accused. 

The accused ran and climbed over the fence. The accused stood on the road and threw stones at the house where they were drinking with the other boys not only that, he also threw stones at the complainant's house. The complainant was afraid so he went inside, rang the police and made the complaint."

The magistrate asked the accused whether he wanted to say anything and, according to the transcript forwarded to this court, the accused replied:

"Sir, I do apologise. I have a loan with the bank. I'm living with my mother and I'm the one looking after my mother."

The magistrate then delivered his decision:

"You should have thought of all that before you committed this offence. You committed this offence and you now say that you have a loan and your mother to look after. The public, or these people, shouldn't feel that they lose their freedom in their own places because of you. Not only that, you threw stones at the complainant's house and did not go and apologise to him. The penalty for you is one year's imprisonment starting from today."

In this court, Mrs Vaihu appeared for the appellant. Counsel explained that the two houses were on the same allotment. The house that the boys were staying in was at the front of the allotment and the more substantial house that the complainant lived in was at the rear of the same piece of land. Counsel said that the other boys the appellant had been drinking with were from Australia and they were not charged but the appellant was charged and he pleaded guilty because he did not think that the offence was particularly serious. Counsel further stated that the appellant is 23 years of age, single and he has no previous convictions.

Mrs Vaihu said that the appellant denied that he had thrown any stones at the complainant's house but I indicated to counsel that, in the absence of affidavit evidence to the contrary, I was bound to accept the summary of facts and other statements recorded in the transcript.

Counsel then made a more disturbing observation. She told the court that the appellant strongly denied having said anything to the magistrate apart from apologising. She said that he did not say that he had a loan with the bank or that he had to look after his mother. The appellant, counsel told the court, does not have a loan from the bank and his mother died in 1999.

I cannot resolve these matters simply on the papers before me and they do not affect my ultimate decision but, obviously, they do call for some explanation. Not only are they remarks attributed to the appellant but the magistrate has actually incorporated them into his decision. It does not seem possible that this could happen unless the statements had actually been made by the appellant.

It has been stated many times that this court will not intervene in the exercise of a magistrate's discretion on sentencing unless the sentence in question is manifestly excessive or manifestly inadequate or wrong in principle. Something is "manifest" when it is clear and obvious. A sentence will not be interfered with on appeal, however, merely because this court might consider it to be on the severe side. An appellant needs to be able to show that the sentence imposed was excessive in the sense of being outside the appropriate range for the particular offence and the particular offender. However one looks at the sentence in this case, it appears to me to be totally outside the appropriate range of sentences warranted by the factual scenario.

The appellant was on the allotment drinking with other boys who actually lived there. That much is clear from the summary of facts. It is stated in the summary that the boys lived at Manase Moala's (the complainant's) place. Perhaps, if properly advised at the time, the appellant should have pleaded not guilty and put the Crown to strict proof that he was on the premises "without lawful justification".

Be that as it may, the appellant elected to plead guilty and the magistrate was, therefore, entitled to conclude that he was on the complainant's property without lawful justification.

There was no suggestion, however, that he was committing a crime or about to commit a crime on the property. When he ran out onto the road and was throwing stones at the houses then he could no doubt have been charged with disorderly behaviour but that is not the charge he was facing. His alleged offence was being in an enclosed area without lawful justification and that must refer to the point in time when he was on the complainant's allotment, not when he was on the public road.

The maximum penalty for the offence is two years imprisonment. To impose half the maximum sentence in the circumstances of this case is, in my view, a manifestly excessive penalty and totally outside the range of penalties warranted on the facts. I, therefore, allow the appeal and quash the sentence.

I was tempted at this point simply to impose, what I consider to be, a more appropriate sentence, but the alleged errors in the transcript are of concern and, in all the circumstances, I believe that it is best if I remit the case back to the Magistrates' Court for re-sentencing before a different magistrate.

I make that order, accordingly. In the meantime, Crown counsel might wish to make enquiries of the prosecutor and the court clerk who recorded the official transcript of the proceedings in the Magistrates' Court to see if their records or recollection of the case can shed light on the alleged inaccuracies raised by defence counsel.

There is one final matter I should comment upon. Counsel for the appellant submitted that, even if imprisonment was an appropriate penalty, the magistrate was required to then go on to consider whether the sentence should have been suspended in whole or in part pursuant to section 24(3)(a) of the Criminal Offences Act. Although there is no obligation on a court to suspend a sentence of imprisonment, suspension is certainly a relevant factor for a magistrate to consider, particularly when dealing with a relatively young first offender who is not facing a serious criminal charge.

The only way that this court on appeal can be certain that a magistrate has at least considered the question of suspension is if reference is made to the issue in his decision. If the decision is silent on the point then an appellant would seem to have a basis for submitting on appeal that the magistrate had overlooked an important element in the sentencing process and, hence, that the sentence must be wrong in principle.

To avoid this situation happening, magistrates should, therefore, once they reach the conclusion that imprisonment is the appropriate sentence, then go on to determine whether all or any part of that sentence should be suspended for a period.

In determining that question, different considerations apply. The Criminal Offences Act is silent on the criteria a judge or magistrate should have regard to but the Court of Appeal in Mo'unga v R [1998] Tonga LR 154, 157, set out the approach which should be followed in the Kingdom. All magistrates should be familiar with the criteria laid down by the Court of Appeal in that decision.

NUKU'ALOFA: 24 MAY, 2004.

JUDGE