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

AC 30/2009

Salt

v

R

Shuster J 
14 December 2009; 17 December 2009 

Bail – application for bail pending appeal – only where reasonable prospect of appeal success – application refused 

On the 8 September 2009 the Appellant pleaded guilty to the theft of a quantity of cigarettes valued at $36,390 and was sentenced to a period of imprisonment for two-years for his part in the crime. The Supreme Court declined to suspend any part of that sentence of imprisonment as a deterrent to other employees. The Appellant appealed that sentence of imprisonment and he requested bail pending appeal. 

Held: 

1. On an application for bail pending appeal, there was a reversal of the usual onus of proof obligation in criminal cases. The onus was on the applicant to show cause, by reference to the relevant statutory criteria, why bail should be granted. 

2. The Court was not satisfied that there was a reasonable prospect of the appeal against sentence succeeding. Further, the appeal would be heard before a substantial portion of the sentence had been served. 

3. The applicant failed to persuade the Court that there was a reasonable prospect of the appeal succeeding, and accordingly the application for bail pending appeal was refused. 

Cases considered: 

 Giordano, Application by - 6 A Crim R 397 
 Ex parte Maher [1986] 1 Qd R 303
 R v Filipo Taufa Cr 129-2009 
 R v Hartstone (CA 261/87, 6 January 1988) 
 Sefo v Rex [2004] Tonga LR 366

Statute considered: 
 Bail Act 1990 

Counsel for the appellant : Mr Fifita 
Counsel for the respondent : Ms Puloka 

Ruling on the issue of bail pending appeal

Introduction 

This is a formal request for the Appellant to be released on bail; pending the determination of his Appeal against a sentence of two-years imprisonment imposed by the Supreme Court on the 8th September 2009 - for an offence of theft of property from the Queen Salote Wharf. 

On the 8th September 2009 for the offence of theft involving the loss of a substantial quantity of goods stored in a bonded container at HM Governments Wharf - the Appellant on pleading guilty to the theft of a quantity of cigarettes, valued at $36,390.00 - was sentenced to a period of imprisonment for two-years - for his part in the crime. 

The Supreme Court declined to suspend any part of that two-year sentence of imprisonment – as a deterrent to other employees. Today the Appellant appeals that sentence of imprisonment and he requests bail pending appeal. At his original hearing the Appellant was represented by Mr. S Tu'utafaiva, today he is represented by Mr. Fifita. 

The Charge 

The charge relates to an offence alleging - that on or about the 9th January 2009, the Appellant together with another employee of the Ports Authority who were based at the Queen Salote Wharf, Nukualofa - dishonestly stole cigarettes valued at $36,390.00 from a sealed container at the Wharf. The goods belonged to American Tobacco Company. The facts revealed the Appellant also helped dispose of the stolen goods. 

None of the stolen property was recovered by police, and other persons have been arrested in connection with this offending. The police record indicates the Appellant is not a first time offender. The Appellant feels his sentence should have been suspended. 

The facts of this case are as follows:- 

• On the 31st December 2008 a tobacco container belonging to the British American Tobacco Company arrived at Queen Salote Wharf - from abroad. 

• On the 14th January 2009, the complainant Mr. Manoa Tu'itupou went to release the container, when he noticed certain high value goods inside the shipping container were missing. As a result he lodged a complaint with the police who commenced an investigation together with HM customs and Port officials. 

• The police subsequently arrested the Appellant and another person by the name of Viliami 'Otutoa - both arrested persons worked at the Wharf- more importantly the Appellant Salt worked in a position of trust and the Appellant outranked his co-accused. 

• According to the police reports both persons admitted to the police - stealing from the bonded container - and they admitted stealing the following items- 07 cartons of Winfield Blue cigarettes worth $17,640.00 and 15 cartons of Pall Mall Blue cigarettes worth $18,750.00 together stealing a total value of $36,390.00 in cigarettes. 

• These two Port employees told the police in interview - they sold 06 cartons of Winfield Blue to shop owners Shen Fu Fen and Qian Xi Yun. 

• They then gave 15 cartons of Pall Mall Blues to - Solomone Payne to keep safe at his residence in Fanga. 

• Viliami 'Otutoa and Solomone Payne later sold 75 sleeves of Pall Mall Blues to Guo Chen Ben, 14 sleeves to Lin Huan and 10 sleeves to Sony Lin. 

• The remaining tobacco was kept at Solomone Payne's home- according to the suspects apparently Solomone Payne's home was broken into and - all the remaining tobacco was stolen. 

Notice of Appeal 

The appellant issued and filed his Notice of Appeal - against sentence on the theft charge - on the 09th November 2009 and, at the same time the appellant applies for BAIL pending the final determination of his appeal. This appeal will most likely be heard during the July 2010 session of Tonga's Court of Appeal.

The Court record notes the appellant was arraigned on the 27th August 2009 and at arraignment, the Appellant pleaded Not Guilty to the first count in the indictment - which alleged a charge of Unauthorized Movement of Goods - subject to Customs Control. 

The appellant - to his credit pleaded guilty, to a second count - alleging theft of $36,390.00 worth of bonded cigarettes, from his employer's premises, the offence was committed in January 2009. Upon pleading guilty and having fully admitting the prosecution facts, the matter was adjourned for a Pre Sentence Report - to the 8th September 2009 at the same time the court indicated it wished to sentence the appellant together with his co-accused and on the same date - despite the appellant maintaining his not guilty plea to count one so as to ensure no disparity arose in sentencing the offenders. 

The court also indicated at that time - if the Crown wished to purse the first count of Unauthorized Movement of Goods subject to Customs Control, then that would be their legal right. In due course, and post sentence, the Crown chose not to proceed on the first count and the Crown informed the Court of its decision on the 13th October 2009 [post sentence] 

Oral Hearing on the Application for Bail 

The oral hearing upon the merits of his application for bail pending appeal was first set for the 11th December 2009 and the Court ordered the appellant be produced and be present in court. However the case had of necessity to be adjourned from the 11th December to the 14th December because of another pressing commitment which had been reallocated for - an urgent hearing. On the 14th December 2009 Mr Fifita made an oral submission for his client to be released on bail pending appeal along the following grounds indicating his client expects a suspended sentence. 

The Grounds of Appeal 

1. The accused is sentenced to 2 years imprisonment. The Prison Marks system will deduct one quarter of the accused's sentence. Therefore he would serve only one year and six months. 

2. There is a reasonable prospect of the appeal succeeding or 

3. The Appeal is unlikely to be heard before the whole or substantial portion of the sentence has been served and 

4. There is substantial grounds for believing that if released on bail he will surrender to custody, without committing further offences and, 

5. This is a purely property offence and the judgment in Mo'unga - v -Rex [1998] Tonga LR at 154 applies 

6. The accused would suffer injustice if his bail application is refused, he appeals against his sentence only. 

The case was adjourned for a written Ruling on the question of bail pending appeal to the 17th December 2009. 

The Granting of Bail Pending Appeal - Post Conviction 

The granting of bail after - or - post conviction- is a totally different proposition from the granting of bail pending trial, at which point the presumption of innocence still prevails - because a convicted person's right of appeal does not revive the pre-conviction presumption of innocence. 

In most jurisdictions, admission to bail pending appeal is unusual, and - exceptional circumstances must be shown to exist, before bail will be granted. In those jurisdictions, as is noted in Halsbury - volume 11(2), paragraph 904 "It is a power - which is rarely exercised.″  

The common-law principle has been considered in a number of cases and is probably best summed up in the following extract from Hall's Sentencing, LexisNexis NZ Ltd, 2004, paragraph VI. 14.3: 

• The inveterate practice in the Court of Criminal Appeal in England, has been to refuse bail unless there are exceptional circumstances.  

• The true question is this - are there exceptional circumstances, which would drive this Court to the conclusion that justice can only be done by the granting of bail. 

The High Court of Australia has adopted a similar approach... In that country the Court of Appeal observed in R v Hartstone (CA 261/87, 6 January 1988) 11 TCL 2/5 that different considerations apply to the granting of bail to a person who has been found guilty of an offence, than those that apply where it is sought pending the trial. 

• In the first case, a determination of guilt has been reached. 

• In the second, the presumption of innocence still applies. 

For these reasons, the Court said (per McMullin J.) that, while the issue: whether bail is granted will depend on the circumstances of the particular case,

• The grant of bail to convicted persons should be regarded as very much the exception rather than the rule. 

Moreover, if bail is granted - pending the outcome of an appeal - which proves to be unsuccessful then the appellant has to be recalled from the community, possibly months after his/her conviction, to serve the sentence imposed. Sefo anor v Rex [2004] Tonga LR 366. 

In Application by Giordano - 6 A. Crim. R 397 at 398, the Court of Criminal Appeal of South Australia speculated on what the situation might be if a more relaxed approach was taken to applications for bail pending appeal: 

"There is then the serious risk of availability of bail pending appeal leading to a proliferation of unmeritorious appeals, thereby adding to the strains on the system of justice. 

Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leave the future to take care of itself. 

Appeals would be launched irrespective of the prospects of success simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison." 

In ex parte Mahera [1986]1 Qd R 303, 310, Thomas J. observed:

"The spectacle of a recently sentenced man walking free maybe seen by the public as equivocation by the courts, and it does not tend to foster respect for the system." 

IN TONGA- 

The position is governed by section 4B of the Bail Act 1990 - which reads as follows: Section 4B(1) - A person who has been convicted of and sentenced to imprisonment for a criminal offence and who has appealed or applied for leave to appeal against that conviction or sentence SHALL be granted bail IF the Court is satisfied that- 

(a) There is a reasonable prospect of the appeal succeeding; or 

(b) The appeal is unlikely to be heard before the whole or a substantial portion of the sentence has been served; and 

(c) There are substantial grounds for believing that, if released on bail (whether or not subject to conditions) he will surrender to custody without committing any offence while on bail. 

In taking the decision required by subsection (1), the Court shall have regard to all the relevant circumstances - and in particular- 

(a) The nature of the offence and length of the sentence; 

(b) The grounds of appeal;

(c) The character, antecedents, associations and community ties of the person; and 

(d) His record in surrendering to custody at the trial and on other occasions. 

Although, with reservation, some guidance can no doubt be obtained from decisions in other jurisdictions, section 4B really contains a quite comprehensive code for dealing with applications for bail - pending appeal. 

I must ask myself the following question, does this particular application today - come within the Sefo anor v R at 371 category of case envisaged in subsection (1)(b) where the appeal is unlikely to be heard before a substantial part of the sentence has been served. 

In this particular case the Court of Appeal sits on the 5th July 2010 for three weeks, and that is by my calculation in 201 days or in just twenty nine weeks time. 

The present application is made - pursuant to subsection 1(a) which requires the Court to have regard to the prospects of the appeal succeeding. This Court needs to be satisfied that there are reasonable prospects of the appeal succeeding and that element in turn requires a consideration of the grounds of appeal. 

The Court's obligation under the Bail Act is less equivocal. As I see it, I am obliged by the statutory provisions of the Bail Act to give proper consideration to the grounds of appeal - and to give consideration as to the prospects of the appeal succeeding. 

In dealing with a bail application pending appeal, the judge has to consider the force of a ground of appeal, which alleged he should have been given a suspended sentence. 

With some diffidence, therefore, I now turn to consider the grounds and the merits of the appeal. On an application for bail pending appeal, there is a reversal of the usual onus of proof obligation in criminal cases. The onus is on the applicant to show cause, by reference to the relevant statutory criteria, why bail should be granted. 

At the bail hearing, Counsel Mr. Fifita was given the opportunity to present any submissions he wished to make - over and above the information that was already before the Court. Mr. Fifita addressed the court briefly on the merits of his application. 

I stress that I do not wish to be seen in any way as appearing to pre-empt the ultimate decision the Court of Appeal will need to make - after it has heard the full arguments in July next year. 

Under the Bail Act, however, I am clearly required to make an assessment of the merits of the appeal at this stage based upon the material I have before me - see the case of Sefo anor v R. 

I was told the Appellant did co-operate with the police when he was subsequently arrested by the police, and that is to his credit, as is of course is his early guilty plea to the theft charge which involved a substantial breach of public trust by someone working in a supervisory capacity. 

Having carried out that exercise - and having made my assessment - all I can say is that, for this appeal - the applicant can in my view have only a very limited prospect or chance of success on Appeal - particularly when one considers and bears in mind the recent decision of Ford CJ in case Cr 129-2009 R v Filipo Taufa where in that case the Judge sentenced a 31 year old male to 2½ years in prison on a guilty plea. 

The facts of case CR129-09 reveal the defendant had by various means obtained $970 from his employer. That is an amount far less than this appellant has stolen. TAUFA was of good character - he received two and a half years in prison as a deterrent sentence, whereas the appellant in this case has a previous conviction, and he with another person also an employee of the Ports Authority, stole 37 times the amount taken in TAUFA's case. 

Conclusion 

Although the Bail Act says: The court shall grant Bail if the court is satisfied- 

(a) There is a reasonable prospect of the appeal succeeding; Well, my answer to that question is that I am not satisfied that there is a reasonable prospect of this appeal against sentence succeeding. 

(b) The appeal is unlikely to be heard before the whole or a substantial portion of the sentence has been served; Well my answer to that is the appeal will be heard in 201 days time and the Appellant will have served just 40% of that sentence. 

(c) There are substantial grounds for believing that, if released on bail (whether or not subject to conditions) he will surrender to custody without committing any offence while on bail: I make no determination on that point.  

In taking the decision required by subsection (1), the Court shall have regard to all the relevant circumstances - and in particular- 

(a) The nature of the offence and length of the sentence; Well this offence is one of the most serious breaches of trust - because it involved a clear breach of a public trust by an employee holding a senior office at the Wharf and he was a man who was in charge of other staff 

(b) The grounds of appeal; That the Court of Appeal should impose a suspended sentence - well this is entirely a matter for the Court of Appeal. It was considered and was rejected by me applying proper sentencing guidelines for serious Breach of Trust cases 

(c) The character, antecedents, associations and community ties of the person; Well my answer is the Appellant is not a first time offender and according to the PSR he is a moderate risk as an offender 

(d) His record in surrendering to custody at the trial and on other occasions." Well my answer is the Appellant did not attend for his arraignment of the 10th July 2009and a warrant was issued for his arrest but he did surrender later to the court

Having reached the conclusion, would this appeal succeed - it would in my respectful view be quite inappropriate for me to grant bail to this Appellant - at this time. 

Accordingly on the evidence before me - the applicant and his counsel have failed to persuade me that there is a reasonable prospect of this appeal succeeding, and accordingly this application for bail - pending appeal is- REFUSED