In light of recent media reports that the Courts are imposing more suspended sentences due to overcrowding in Tonga's prison system, the following clarification is provided for the information of the public and better understanding:
- The Courts do not suspend sentences because of prison overcrowding.
- Provision of adequate prison facilities and related services is the responsibility of the Executive Government.
- Upholding the rule of law and administering justice in the Kingdom is the responsibility of the Judiciary and the Courts.
- Suspended sentences are considered and imposed in accordance with relevant statutory provisions enacted by Parliament and principles established by the Court of Appeal. Those laws and principles are referred to and applied in the judgments of the Courts.
- Save in exceptional circumstances, those judgments and full reasons for the sentences imposed are routinely published on the websites of the Attorney General's Office (ago.gov.to) and the Pacific Islands Legal Information Institute (paclii.org) and are thus matters of public knowledge.
- The relevant considerations and principles on whether a sentence of imprisonment should be suspended wholly or in part include:
- A suspended sentence is intended to have a strong deterrent effect.
- If the offender is incapable of responding to a deterrent, a suspended sentence should not be imposed.
- Whether the offender is young, has a previous good record, or has had a long period free of criminal activity.
- Whether the offender is likely to take the opportunity offered by the sentence to rehabilitate him or herself.
- Where, despite the gravity of the offence, there is some diminution of culpability such as a lack of premeditation, the presence of provocation, or coercion by a co-offender.
- Whether the defendant has cooperated with the authorities.
- Suspended sentences are almost always imposed upon specified conditions such as probation, completion of rehabilitation programs and/or community service. Any breach of those conditions may result in the suspension being rescinded and the offender being required to serve the period of imprisonment.
Michael Whitten QC
Lord Chief Justice of the Kingdom of Tonga
26 March 2021