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Fangupo v R; Fa'aoa v R [2010] TongaLawRp 17; [2010] Tonga LR 124 (14 July 2010)

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

AC 34 and 36 of 2009

Fangupo

v

R;

Fa'aoa

v

R

Ford CJ, Salmon and Moore JJ
9 July 2010; 14 July 2010

Appeal against sentence – excessive prison sentences imposed – reduced – suspended part because of youth – discussion on whipping sentence

The two appellants each had previous convictions and were just 17 years of age. In May 2009 both appellants broke out of prison three times. On the first occasion they stole goods from a shopping centre to a total value of $3229. On the second escape they were arrested before committing any further crimes. On the third escape they broke into a house and stole goods to the value of $28, and then into another house where they stole goods to the value of $7417. Additionally the appellant Fa'aoa broke into a third house where he stole items to the value of $215.50. The appellants appeared before the Magistrates Court in June 2009 where they were charged with and pleaded guilty to the first and third escapes. They were each sentenced to 18 months imprisonment to be served cumulatively upon current sentences at the time. They were charged with the same escapes in the Supreme Court and sentenced again there to a total of 13 years imprisonment from the date of release on current sentences they were serving, together with six lashes of either the cat or rod to be supervised by a Doctor and magistrates. The appeals were against the sentences.

Counsel for the Crown acknowledged that the duplicate convictions in the Supreme Court would have to be set aside. He also submitted that the whipping penalty should be set aside on the grounds that it was now recognised as a cruel and unusual punishment. He submitted that the prison terms imposed by the judge were excessive.

Held:

1. There was no doubt that the two duplicate sentences for escaping from lawful custody should be set aside. The whipping sentence was imposed on the third escape from custody so that for that reason alone that part of the sentence would need to be reconsidered.

2. The sentencing judge took matters into account that should not have been considered. Additionally the prison sentences imposed by the judge and the sentence of whipping were excessive. The Court of Appeal ignored the exercise of sentencing discretion by the judge and exercised its own.