Fangupo v. Rex; Fa’aoa v. Rex

TF previously held two convictions for housebreaking and theft and PF held four convictions for housebreaking and assault. In May 2009, TF and TP broke out of prison on three occasions. On two of these occasions they committed housebreaking and theft. In June 2009, they appeared in the Magistrates Court and admitted their guilt to two of the three escapes. They were sentenced to 18 months prison to be served cumulatively with their previous sentences. They were subsequently charged and pleaded guilty in the Supreme Court on three counts of escaping legal custody and the charges of housebreaking and theft. They were sentenced to 13 years together with six lashes of either the cat or rod to be supervised by a doctor or magistrate.

TF and TP appealed against the sentences in the Supreme Court. It was acknowledged and submitted by the Crown that (a) the offences for escaping legal custody had already been prosecuted and sentenced in the Magistrates Court (b) the sentence for whipping was unconstitutional as this punishment is recognised as cruel and unusual punishment and (c) the prison terms were excessive. TF and TP supported these submissions. At the date of judgment TF and TP were 17 years old.

 [Adapted from INTERIGHTS summary, with permission]

(1) There is no doubt that the duplicate sentences for escaping legal custody should be set aside. The whipping sentence was part of the duplicate sentence for the third escape. For this reason alone the sentence should be reconsidered. The sentencing judge in the Supreme Court also took into account events that occurred during the escapes of TF and TP in which there was no suggestion either were involved. The original sentences were therefore excessive and the sentencing discretion of the judge can be ignored.

(2) The age of the defendants and the fact that they pleaded guilty at the earliest opportunity should be taken into account. Their repeated offences are also to be taken into account as evidence that they have not learnt from their previous convictions. The appropriate cumulative sentence is six years with two years suspended due to TF and TP’s age (Malafu v R [2002] Tonga LR 244 distinguished).

(3) 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. This view is increasingly becoming accepted by countries around the world and has led to many countries amending their constitutions.

(4) Although Tonga has not amended its Constitution, in light of recent international conventions and the case ofTu’itavake v Porter [1989] Tonga LR 14 [1] it can be argued that a sentence of whipping is now unconstitutional. A purposive interpretation of clauses 1 and 14 of the Constitution may lead to the conclusion that the whipping provision is unconstitutional.

(5) The International Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment and the judgment of the Chief Justice in Tavake v Kingdom of Tonga [2008] TOSC 14 at para. 52 demonstrate that most international jurists now accept that the prohibition against torture is part of customary international law. Therefore, it is a jus cogens rule from which states cannot derogate whether or not they are a party to the various treaties which prohibit it.

(6) Section 31(6) of the Criminal Offences Act requires a doctor to certify that an offender is fit to undergo a punishment by whipping. It is arguable that to provide such certification would be contrary to various Medical Association declarations and codes and the principles of medical ethics. This would appear to prevent a doctor from participating in the infliction of a whipping sentence.

[1] Tu’itavake v Porter provides the following principles for the interpretation of the Constitution: 1. Pay proper attention to the words actually used in context; 2. Avoid doing so literally or rigidly; 3. Look also at the whole Constitution; 4. Consider further the background circumstances when the Constitution was granted in 1875; 5. Bear in mind established principles of international law; 6. Finally, be flexible to allow for changing circumstances.

 [Adapted from INTERIGHTS summary, with permission]