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Malafu v R [2002] TongaLawRp 36; [2002] Tonga LR 244 (23 July 2002)

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

CR 242 6/2001 CrA 15/02

Malafu

v

R

Burchett, Tompkins, Beaumont JJ
23 July 2002; 23 July 2002

Criminal law – appeal that guilty plea was a nullity – appeal dimissed
Sentencing – appeal that excessive sentence – appeal dismissed

By an indictment dated 20 November 2001, the appellant was charged with escape from lawful detention, armed robbery, unlawful imprisonment, possession of arms and ammunition without a licence, housebreaking and theft. He with four other co-accused appeared before the Chief Justice on 23 November 2001. He was represented by Mr Kelepi Piukala as counsel. Before the court was a summary of facts that clearly implicated the appellant and others in the offences charged. He pleaded guilty to and was convicted of the first five counts. The sixth count of theft was not put. On 17 December 2001 he was sentenced to a term of imprisonment of nine years. On 3 July 2002 the appellant filed an application for leave to appeal out of time. The Crown did not oppose and leave to appeal was granted. The appeal was against conviction and sentence. The grounds of appeal were that the appellant was not properly advised and represented, that he did not understand his right to appeal, that he did not understand the effect of the guilty plea, and that the sentence was excessive.

Held:

1. For the plea to be held to be a nullity it had to be shown that the apparent plea of guilty was no plea at all because it was made under pressure or threats or the like in circumstances where the defendant had no free choice, but was driven to adopt a certain course, whether he liked it or not.

2. The court found that when the appellant pleaded guilty to the charges, he did so, if reluctantly, as a voluntary and deliberate choice after receiving appropriate advice from his counsel. There were present no elements of threats or the like that could convert what may otherwise appear to be a normal plea into no plea at all. The plea of guilty and the resulting conviction did not result in an injustice. Accordingly, the appeal against conviction was dismissed.

3. The court found that the sentences imposed were not excessive. The appeal against sentence was dismissed.

Case considered:

R v Pearce [1976] Crim LR 119

Counsel for appellant: Mr Fifita
Counsel for respondent: Mr Pouono

Judgment