Jailed Vava’u police officers refused leave to appeal sentences [1]
Thursday, December 22, 2022 - 17:46
Two former police officers who are in jail for common assault, after they punched and kicked a defenceless 21-year-old in Vava’u, will not be allowed to appeal their sentences. President of the Appeal Court, Lord Chief Justice Whitten, in his ruling on 12 December rejected the application, as it had no reasonable prospects of success.
In this appeal case, they sought leave to appeal against their sentences and if leave was granted, they sought bail, pending their appeal.
LCJ Whitten said on 28 October, following trial by Hon. Mr Justice Cooper both were convicted of common assault committed on the complainant, Mr Fainu, during the course of taking him into custody in Vava'u.
Both were members of the Tonga Police Force.
“They were originally charged with causing serious bodily harm but His Honour was not satisfied on the evidence in relation to when or by whom Mr Fainu suffered a broken tooth during the assault.
“His Honour's sentencing remarks set out the various submissions concerning the personal antecedents of both applicants, consideration of the relevant circumstances of the offending and references to the Probation Pre-sentence Report including statements by the applicants to the effect that they denied the offending.”
He said the application for leave to appeal was essentially a single complaint that the sentencing Judge erred by not fully suspending the six-month sentences.
The grounds relied upon were that the applicants are still young, that they required an opportunity to rehabilitate themselves and take an anger management course (which was one of the conditions of the partial suspension imposed by the Judge), among other grounds.
"To fully suspend the sentence in this case would have failed to give sufficient regard to or place sufficient weight on other relevant factors such as the seriousness of the offending and the particular circumstance of aggravation (namely, the applicants being police officers), the effect on the victim and the sentencing objectives of denunciation and both general and specific deterrence.
“Their denial of the offending casts doubt on whether the applicants are likely to take the opportunity afforded by even a partially suspended sentence to rehabilitate. Nonetheless, the sentencing Judge took that into account in ordering partial suspension."
He said for those reasons, any appeal against the sentences had no reasonable prospects of success, and the application was therefore refused.
"In my view, and on a plain reading of that rule, the application for leave here has been refused following a hearing, and therefore, renewal is not available. Their counsel, Ms Kafoa was unable to identify any other statutory basis for renewal of the application for leave to appeal.