FROM OUR ARCHIVES

Two 17-year-old burglars who escaped from prison have been spared a sentence of six lashes each with a cat or a rod, imposed by a British judge in Tonga last year, after the Court of Appeal set aside the "cruel and unusual punishment", in a judgment released today.

In their place they imposed sentences of imprisonment totaling six years.

The whipping provision in Tongan law had not been used for 30 years, and the Appeal Court judgment stated that, "interpreted in the light of international conventions and decisions of this Court it might be argued that the whipping provision is now unconstitutional."

The appellants were [redacted], who were first imprisoned in Vava'u for crimes committed when they were 15.

Duplicate sentences

The Appeal Court was told that in May 2009 both appellants, who were serving time for housebreaking and theft, broke out of prison three times and stole goods from a shopping centre and from houses. They were sentenced by a Magistrate to serve a further 18 months imprisonment on top of their current terms. However, they were charged with the same escapes in the Supreme Court and sentenced again there.

The Appeal Court Judgment stated that the appeals had two unusual features. "This is the first time in almost 30 years that a judge in Tonga has ordered prisoners to be whipped. The second unusual feature is that due to an oversight in the court of prosecution procedures the appellants were sentenced in the Supreme Court on two charges of escaping from lawful custody in respect of which they had already been sentenced in the Magistrate's Court."

The appellants had pleaded guilty in the Supreme Court to multiple charges of escaping from lawful custody, housebreaking, and theft. They were each sentenced to a total of 13 years imprisonment from the date of release on current sentences they were serving, together with six lashes with the cat or the rod to be supervised by a doctor and magistrates.

The appeals were against these sentences.

The whipping sentences were imposed on 5 October 2009 by Mr Justice Shuster, a Commonwealth High Court Judge from the United Kingdom who was first appointed to Tonga in 2008.

Cruel punishment

Counsel for the Crown submitted that the whipping penalty should be set aside on the grounds that it is now recognized as a cruel and unusual punishment; and also that the prison terms imposed by the judge were excessive.

The Appeal Court found that the two duplicate sentences for escaping from lawful custody should be set aside; and that the sentence would need to be reconsidered.

"In his sentencing remarks the judge appears to have taken into account in fixing sentence that there had been assaults on prison staff in 'Eua and the burning of the prison in Tongatapu. There is no suggestion that either of the appellants had anything at all to do with either of these incidents, indeed their offending and their imprisonment is on the island of Vava'u. The judge was obviously wrong to take those matters into account," the Appeal Court judgement stated.

"Additionally we have concluded that the prison sentences imposed by the judge and the sentence of whipping were excessive."

The Appeal Court took into account the age of the appellants and the fact that they pleaded guilty, as well as the fact that they had previous convictions and had not learnt from the previous prison sentences imposed on them.

It imposed two years imprisonment for the third escape to be served concurrently with the sentences imposed for the other two escapes, which effectively means an additional six months in relation to those sentences. An additional four years was imposed for the other housebreaking and theft convictions.

Whipping

In overturning the whipping sentence, the Appeal Court, consisting of Justices, Ford, Salmon and Moore, observed that the attitude of the courts in many countries had, over the last 20 years changed in relation to sentences regarding corporal punishment.

"A number of countries have adopted or amended constitutions to prohibit cruel and unusual punishment. Tonga has not amended its constitution."

The Appeal Court decision made reference to the International Convention against Torture and other Cruel Inhumane or Degrading Treatment and Punishment as being particularly apposite.

"Additionally, a purposive interpretation of clauses 1 and 14 of the constitution may lead to the conclusion that the whipping provision is unconstitutional.'

The judgment also stated that it was arguable for a doctor to provide the necessary certification that an offender was fit for the punishment, would be contrary to medical ethics, "and would appear to prevent a doctor from participating in the infliction of a whipping sentence."

"We note too that various human rights bodies such as the Human Rights Committee appointed by the UN, the Inter-American Court of Human Rights and the European Court of Human Rights have all described whipping or flogging as cruel inhumane and degrading..." the Appeal Court judgment stated.

Counsel for the appellants was Mr Piukala; and counsel for the Crown was Mr Sisifa and Ms Puloka.