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Kilikiti v Police [2008] TOLawRp 30; [2008] Tonga LR 150 (9 July 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

AM 12-13/2008

Kilikiti anor

v

Police

Shuster J
9 July 2008

Appeal against sentence – Magistrate did not explain reasoning – appeals allowed and sentences were suspended

The appellants appealed against their conviction and sentence following the imposition of a two year imprisonment sentence on 21 May 2008 by a magistrate for theft of a bull. The grounds of appeal in relation to the conviction were that the magistrate lacked jurisdiction or in the alternative due process of law and procedure was not followed; that they made an ambiguous guilty plea or in the alternative they were not given the opportunity to be represented by counsel. The grounds of appeal in relation to the sentence imposed was that it was excessive, harsh and unreasonable. The accused had no previous convictions.

Held:

1. Counsel had been unaware that the jurisdiction in the Magistrates' Court had been raised to include criminal cases where the maximum sentence did not exceed three years imprisonment. The magistrate had followed the correct procedure and both accused had indicated that they understood the charge and they entered guilty pleas.

2. To avoid misunderstanding in future cases Magistrates should expand their notes to indicate that the accused understands the charge(s); that he/she can consult a lawyer and make or witnesses in defence or mitigation.

3. The magistrate did not explain his reasoning nor his starting point or provide any structured decision in arriving at the sentence of two years imprisonment. A sentencer should first ask was he obliged to pass a custodial sentence or was there a more appropriate non-custodial alternative; secondly the length of the appropriate custodial sentence and, thirdly, could he properly suspend the sentence in whole or in part.

4. The appeals against sentencing were allowed and the appellants were sentenced to two years imprisonment with the whole of the imprisonment term being suspended for a period of three years.

Cases considered:

R v Kefford and R v Bibbi (1980) 71 Cr App R 360

Reginald Raynsford (1988) 10 Cr App R 416

Statutes considered:

Criminal Offences Act (Cap 18)

Magistrates Court Act (Cap 11)

Counsel for the appellant : Mr Pouono
Counsel for the Crown : Ms Lavakeiaho

Extemporaneous judgment

The Appellants appeal a sentence of two-year imprisonment passed on 21 May 2008 when they were sentenced by the Magistrate sitting in Mu'a for an offence of theft.

The appellants were charged by the police with a single offence, alleging: -

• They stole a bull belonging to Soane Hamala

The charge reads:- [a] The first and second accused [together] on the 10th December 2007 at Kolonga you did theft. Contrary to sections 143 and 145(b) of the Criminal Offences Act (Cap 18) in which you wilfully stole 1 unconsecrated brownish and white bull belonging to Soane HAMALA valued at $2000.00.

Notice of Appeal was served upon the Supreme Court dated 26 May 2008.

The case was listed for hearing on Wednesday 9th July 2008.

I have set out Counsel's Ground of Appeal in full.

Ground of Appeal

1. Appeal on conviction.

(a) Lack of jurisdiction or in alternative due process of law and procedure was not followed as in Section 34 & 35 Magistrates Court Act.

(b) They made ambiguous guilty plea, or in the alternative they were not given an opportunity to be represented by a law practitioner.

2. Appeal on Sentencing.

(a) Excessive and Harsh

(b) Unreasonable

3. Both defendants request bail until hearing

Let me say at the outset this Appeal can only be on the ground that the sentence was in counsel's words:-

(a) Excessive and Harsh

(b) Unreasonable

Counsel for the Appellants, sought to infer at the start that the procedure(s) used in the Magistrates Court were flawed and as a result the conviction and sentence was flawed.

Counsel argued there was a:-

(a) Lack of jurisdiction or in alternative due process of law and procedure was not followed as in Section 34 & 35 Magistrates Court Act.

(b) They made ambiguous guilty plea, or in the alternative they were not given an opportunity to be represented by a law practitioner.

Counsel said this meant that the whole of the Magistrates Procedure should be revisited in this Appeal. However Counsel was patently unaware that the jurisdiction of the Magistrate had been raised to the sum of 10,000PA and three years imprisonment could be imposed. He told the court jurisdiction was 1,000.00PA and thus the procedures were incorrect. I totally reject his argument.

I have no doubt the Magistrates followed the correct procedure, he has a three years sentencing threshold, and has the inherent jurisdiction to try this particular case. There is no doubt in my mind the appellants were told the nature of the charge, and both indicated that they understood the charge and that they entered Guilty pleas. Further they both sat and listened to the facts as outlined in the Magistrates summary, which was supplied to this court.

To assist in the future, perhaps there is merit in asking the Magistrates to expand on their notes and indicate every accused understands the charge(s) that he/she can consult a lawyer and may call witnesses in his defence or mitigation. This can be achieved by the Magistracy creating a standard form with a check list therein which form can or must be completed in each and every case. This procedure would help avoid misunderstanding such as this and help save valuable Supreme Court time.

The Magistrates Two-Year Sentence

I am told the accused are first time offenders, and they admitted the offence to the police. I take into account their honesty to the court, despite this appeal. In my view a two-year prison sentence for the theft of a bull, for first time offenders is somewhat harsh or excessive.

The court record does not explain the Magistrates reasoning, neither does it explain his starting point, or provide any structured decision in him arriving at a sentence of two years imprisonment. Structuring and recording the reasons for a sentence is crucial in any sentencing exercise such as this. He did not indicate he imposed the sentence as a deterrent to others and this is to my mind a just basis of appeal

Accordingly, reviewing this case on appeal I will sentence them both, having regard to the important case of Reginald Raynsford (1988) 10 Cr App R 416 and 417.

The head note reads as follows.

It is a well established principle of sentencing that the sentencer; when considering a sentence of imprisonment, he should ask himself these three questions, and in this order.

First, was he obliged to pass a custodial sentence, or was there a non-custodial alternative which would be appropriate in all the circumstances.

Secondly, the sentencer should decide the length of the appropriate custodial sentence, and

Thirdly, he should ask himself could he properly suspend the sentence in whole or in part.

A suspended sentence is not an evasion of imprisonment; on the contrary it is a perpetual reminder to the offender not to re offend. If they re offend during the operational period they will be doubly imprisoned. In the case of a specified class of offenders such as first time young offenders, a suspended sentence will be more effective than an immediate custodial sentence.

I feel I must also have also regard to the case of R v Kefford and R v Bibbi (1980) 71 Cr App R 360 which states a sentencer should also look at the number of inmates in the general prison population in deciding on a sentence. The prisons in this country are full. I can see no good reason to send the accused directly to prison today because the property subject of the charge was fortunately recovered.

However I am going to impose a quite lengthy suspended sentence to act as a deterrent and so ensure they do not offend in the future.

I SENTENCE BOTH APPELLANTS TO TWO YEARS IMPRISONMENT SUSPENDED FOR THREE-YEARS

I have had regard to the fact they have both been in custody for 12 days from 21-05-08 to 02-06-08 the effect of breaching this order if they were to commit another offence is they will go to prison for two years. That two years imprisonment would be in addition to any other sentence which another court might impose. To this extent the appeal is allowed. I thank counsel for their attention.