IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION AC 1 of 2015
NUKU'ALOFA REGISTRY [CR19 of 2013]

BETWEEN:

REX
Appellant

AND:

SAU'ILUMA GUTTENBEIL
Respondent

Coram: Salmon J
Moore J
Blanchard J 
Tupou J

Counsel: Mr KefuA/AG for the Appellant
 Mr 'O. Pouono for the Respondent

Date of Hearing: 25March 2015
Date of Judgment: 31 March 2015

JUDGMENT OF THE COURT

[1] This is an appeal by the Crown, with leave granted, against the suspension of the sentence of imprisonment imposed in the Supreme Court on the respondent.

[2] Mrs Guttenbeil was charged with murder, and in the alternative manslaughter, arising from an incident in which she ran over her husband and his brother while trying to separate them in a fight involving a third man. The trial was before a judge alone. She was acquitted on the murder charge but found guilty of manslaughter. She was sentenced to 2 years 9 months imprisonment with the whole of the sentence suspended, subject to conditions which included attendance at an anger management course run by the Salvation Army and 160 hours community service.

[3] Mrs Guttenbeil has 7 children ranging in age from about 2 to 13. The children have obviously suffered trauma from this event but are supportive of their mother and wish to remain together as a family. The 2 eldest, who have been interviewed by counsel for the prosecution, have emphasised that their view is that their mother is the best person to take care of them.

[4] The Crown in its submissions to us contended that the aggravating features of this case outweigh mitigating factors and that the judge should not have suspended the whole of the sentence. The Crown submission is that the respondent should serve 3 to 9 months in prison. In support of the submission the Crown say that the starting point in consideration of a sentence is that a life has been taken unjustifiably and that there is a community need for punishment and deterrence which far outweighs the short term impact on the children of a period of incarceration for their mother. The Crown referred to the judgments of this Court inR v Tofavaha [2003] Tonga LR 316 and R v Holani [2001] Tonga LR 161 to support its submission that a full suspension of the term of imprisonment was inappropriate. The Crown did not challenge the term of imprisonment itself.

[5] Both the above cases concerned bad cases of drunken driving and extended periods of fast and reckless driving ending with collisions which in the first case caused the death of a passenger in the other vehicle and in the second case the death of a passenger in the vehicle driven by the offender. In both cases pleas of guilty to manslaughter were entered. In the case of Tofavaha this court replaced a sentence of 2 years imprisonment fully suspended with one of 2 years imprisonment without suspension. The offender was an unmarried prisoner officer. In the case of Holani this Court replaced a sentence of 18 months imprisonment fullysuspended with one of 18 months with the final 12 months suspended. The offender was an unmarried primary school teacher.

[6] The principle to be applied in appeals by the Crown against sentence is set out in R v MisinaleCA 13/99, 23 July 1999 where this Court said:

"First, for such an appeal to succeed, clear and compelling grounds for increasing the sentence need to be established. It is not sufficient for the appellate court to consider that a more severe sentence could properly be imposed, or that the sentence imposed is inadequate or inappropriate. For a sentence to be increased on a Crown appeal, the appellate court must be satisfied that the sentence is so inadequate or inappropriate that the sentencing judge erred in that he or she must have acted upon a wrong principle, wrongly assessed a relevant circumstance, took into account irrelevant factors, failed to take into account relevant factors, or has imposed a sentence that is inconsistent with sentences the court has imposed for like offending. In such a situation, the appellate court is left with no alternative but to impose a more severe or a different sentence. If the court is so satisfied, the sentence should be increased only to thelower end of the appropriate sentencing range. Indeed, the appellate court, in fixing the proper range for this case, should take into account that it is an added penalty to have to face sentence a second time, and to have hope deferred, and perhaps dashed, in the result."

 It can be seen that this is a stringent test. The Crown placed considerable weight on the 2 decisions referred to above but acknowledged that they were more serious cases because they involved drunken driving. The sentencing Judge was referred to these two decisions and also regarded them as more serious. The question is whether the full suspension was so inappropriate that the judge must have erred. It should be noted that the court in Misinale said that if the court was satisfied that the sentence was inappropriate it should be increased only to the lower end of the appropriate sentencing range. That means in this case 3 months in prison. In Misinale the added penalty of having to face sentence a second time was also noted. That factor has particular significance when the Court is being asked to impose actual imprisonment in place of a sentence appealed by the Crown that did not.

[7] The Crown has not satisfied us that clear and compelling grounds exist for increasing the sentence by reducing the period of suspension. Three months imprisonment is not a lengthy period of imprisonment but the effect on the family is likely to be well out of proportion to the perceived societal benefit. Similar considerations were referred to by the sentencing judge. There is no doubt that the sentence imposed by the Judge was at the lower end of the appropriate range but it cannot be said in all the circumstances of this case to be inadequate or inappropriate.

[8] For the above reasons the appeal is dismissed.

Salmon J

Moore J

Blanchard J

Tupou J