Tui v Rex [2007] TOCA 4; AC 03-2007 (20 July 2007)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

AC 03/2007

BETWEEN:

SIUA TANGIMEIMULI TUI
Appellant

AND:

REX
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel:
Mr Edwards for the Appellant
Mr Sisifa for the Respondent

Date of hearing: 18 July 2007.
Date of judgment: 20 July 2007.

JUDGMENT OF THE COURT

[1] The appellant was found guilty on 2 April 2007 after trial before a jury, on one count of arson. On 17 May 2007 he was sentenced by Laurenson J to 3 years imprisonment the last year to be suspended for 2 years. The court ordered that the appellant was to be on probation during the suspension period and was to undertake such alcohol and anger management courses as were directed by his probation officer.

[2] The appellant appeals against that sentence on the ground that the sentence was excessive for the following reasons:

"1. The maximum penalty for arson is 5 years. I was charged with one count of arson and I was convicted on that count and sentenced to imprisonment. My sentence is 3 years imprisonment and 3rd year to be suspended plus 2 years probation making my imprisonment and probation 4 years. I am a first offender.

2. At the time of the offence I was under the influence of liquor and unable to recall what happened. The psychiatric report on the bottom of page 2 states:

‘The only significant matter with regard to his criminal act was a history of alcohol – Related Disorder in which he used to suffer from alcoholic Blackouts in the past.’

3. With great respect the learned Judge failed to give proper and due regard to the mitigating circumstances, personal and rehabilitating aspect of the case when he imposed a punitive and deterrent sentence of imprisonment and probation."

The Facts

[3] The Judge summarised the factual background as follows:

"The evidence revealed that on the evening of 5 June 2006 you had been drinking heavily with friends. You returned to your home. You suffer from asthma. About 9:30 p.m. your mother took you to Vaiola Hospital for treatment. While being interviewed by a doctor you became violent and abusive. You left the hospital. At some point you returned there. Shortly before midnight you were seen in the hospital parking shed alongside an ambulance which was on fire. You were seen to be encouraging the fire with a piece of material. A hospital driver on duty in the office in the shed tried to stop you. You assaulted and abused him. He was able to escape from you and get help. The fire brigade arrived and put out the fire. Three vehicles were damaged. DETAILS: one ambulance beyond repair - $28,000; one ambulance damaged - $2,400; one Land Cruiser - $1,800. Total $32,200."

The Sentencing

[4] The Judge considered that the appellant’s behaviour on the night of the offending was so irrational that he sought a report under s.64 Mental Health Act (8 of 2001). The psychiatrists report was before the Judge at sentencing. He summarised the report as follows:

(a) the appellant may well have been drunk at the time of offending;

(b) the appellant may not have been able to remember what happened afterwards;

(c) the appellant knew what he was doing at the time;

(d) the appellant does not suffer from any psychiatric disorder.

[5] The Judge also had a probation report which indicated that:

(a) apart from this one incident the appellant was a person of good character and worth in the community. Intelligent man with good heart and active in church affairs;

(b) on the night he became involved with a drinking party. Trouble with asthma. Took medication. Became very aggressive;

(c) he clearly had problems with alcohol in the past;

(d) he is now genuinely remorseful and wishes to partake in alcohol and anger management courses;

(e) he originally wished to plead guilty at first opportunity but later changed mind on advice from counsel – if so poorly advised.

[6] The Judge concluded his sentencing remarks with the following discussion:

"This was a prolonged incident involving quite uncharacteristic very violent and ultimately very dangerous conduct which resulted in a great deal of expensive property damage. I cannot see how either your medical condition or state of intoxication can provide any sensible excuse for what happened. There are, so far as I can determine and particularly in the light of the psychiatrist report no mitigating circumstances at all.

No community can countenance this type of behaviour. Intoxication is not an excuse unless the offender is rendered incapable of forming any intent at all. The psychiatric report makes it quite clear this did not apply in this case.

The law now requires that I impose a sentence which punishes you for your behaviour to the extent that this is just and fitting in the circumstances

- which will deter you and others from committing similar conduct in the future.

- which indicates society’s standards of reasonable behaviour.

- which protects law-abiding members of the community.

At the same time regard must be paid to the issue of your rehabilitation to later fulfil a useful role in society.

The maximum penalty in this case is five years imprisonment. This is a very bad case. I consider an appropriate sentence is three years imprisonment. Your previous good character and worth in the community lead me to believe, however, that it is worthwhile encouraging and assisting you towards reforming and rehabilitating yourself. To that end, I further order that the third year of this sentence is to be suspended for two years. During this time you are to be placed on probation and to undertake such alcohol and anger management courses as the probation officer shall direct."

Appellant’s submissions on appeal.

[7] The appellant sought leave to adduce two affidavits for our consideration. After hearing submissions we decided with one qualification to admit the affidavits and take them into account in our consideration of the appeal. Mr Sisifa for the Respondent challenged the statements in the second, third and fourth sentences of the affidavit of Susana Tui. Because of the lateness of the filing of these affidavits and the consequent lack of opportunity for the Crown to obtain rebuttal evidence, we exclude these sentences from our consideration.

[8] Mr Edwards for the appellant submitted that the sentence was excessive in all the circumstances of the case. He submitted that the whole of the sentence should be suspended on the basis of the principles in Mo’unga v R [1998] Tonga Law Reports 154. He referred to the following factors listed in that case which he said were present in this case:

(i) Where the offender has a previous good record.

(ii) Where the offender is likely to take the opportunity offered by the sentence to rehabilitate himself.

(iii) Where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation.

[9] We accept that all those factors exist in this case but that does not mean that the appellant is thereby entitled to a suspension of the whole of his sentence. The factors are however relevant to the question of whether part of the sentence should be suspended.

[10] Mr Edwards was critical of the Judge’s finding that there were "no mitigating circumstances at all." In addition to the matters listed above we note the appellant’s confession statement and his apologies to the doctors and nurses at the hospital. This statement was made on the 7th June 2006 two days after the crime was committed. He nevertheless pleaded not guilty and went to trial. We also note the fact that the appellant was active in church and civic activities and of course the fact that at the age of 29 this was his first offence.

[11] Mr Edwards also claimed that the appellant’s condition brought about by a combination of medication and excessive consumption of alcohol together with his history of alcohol induced blackouts justified a submission of diminished responsibility. We do not agree. The psychiatrist’s report makes it clear that the appellant knew what he was doing at the time of the commission of the offence as does the verdict of the jury. The fact that he was drunk is no excuse nor can it be used to mount a submission of diminished responsibility.

Respondent’s submissions

[12] Mr Sisifa for the respondent upheld the Judge’s sentence although he acknowledged that a three year sentence against a maximum of five years did not leave much room for more serious cases where there was premeditation, much more extensive damage and/or a clear threat to life.

[13] Mr Sisifa submitted that given the seriousness of the offending a prison sentence was inevitable. He argued that the sentence was appropriate by reference to two English cases.

[14] In R v Elliot (1989) 11 Cr App.R. (S) 67 the offender pleaded guilty to arson. He set fire to a depot where he had previously been employed, causing damage to the extent of £1,811,000. A sentence of 4 years imprisonment was upheld on appeal.

[15] In R v Lethan [2000] 1 Cr App.R.(S) 185 a 16 year old offender pleaded guilty to arson. He set fire to a school causing damage to the extent of £400,000. A sentence of 2 years detention was upheld but the observation was made that if the offender had not been young and of good character a significantly longer sentence would have been justified.

Decision

[16] There are two issues which concern us in relation to the Judge’s decision. The first is his reference to there being no mitigating factors. We think that the appellant’s previous good character and his contribution to his community together with his remorse and his apology are mitigating factors and should be taken into account in sentencing.

[17] The second issue relates to the three years sentence imposed by him. We think, as Mr Sisifa acknowledged, that a sentence at this level against a maximum sentence of 5 years leaves insufficient room for more serious cases. It is interesting to note that at the time of the Elliot decision referred to above the maximum sentence in England for arson when the charge was brought on indictment was life imprisonment. We have reviewed a number of cases regarding sentencing for arson in England during the 1980’s. For cases bearing some comparability to this one, sentences of 3 or 4 years against a maximum of life imprisonment seem common.

[18] We agree with the Judge that this was serious offending. It is fortunate that others were present so that the fire service could be called promptly otherwise the damage may have been more extensive than it was.

[19] Bearing in mind the lower maximum in this jurisdiction and the mitigating circumstances referred to above we consider that the appropriate sentence is 2 years imprisonment and that 3 years was, in all the circumstances, excessive. We agree with the Judge that one year should be suspended.

[20] Leave to appeal is granted and the appeal is allowed. The sentence of 3 years imprisonment is quashed and replaced with one of 2 years. The second year of that term is suspended for 2 years. The Judges direction as to probation and the terms thereof remain in effect.

Burchett J
Salmon J
Moore J