Foliaki v Rex [2015] TOCA 12; AC 4 & 16 of 2015 (16 September 2015)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION AC 4&16 of 2015
NUKU'ALOFA REGISTRY [CR 128&218 of 2009]

BETWEEN:

1. LEI'ATAUA FOLIAKI
2. PITA LATU
Appellants

AND:

REX
Respondent

Coram: Moore J
Blanchard J
Hansen J

Counsel: Mr'O. Pouono for the Appellants
Mr'A. Kefu AAG/DPP for the Respondent

Date of Hearing: 11September, 2015
Date of Judgment: 16 September, 2015

JUDGMENT OF THE COURT

Introduction
[1] On 7 November 2008 the appellants and three others were sentenced to imprisonment by Ford CJ for terms ranging from 8 to 18 years. They had pleaded guilty to charges arising, in the main, from two robberies that had taken place earlier in 2008. The appellants, who are still serving their sentences, have applied for leave to appeal out of time. Mr. Foliaki was granted leave by Tupou J. Mr. Latu's application was declined as had three previous applications for leave. The refusal to grant leave on the last two occasions was the subject of an unsuccessful appeal to this court.(AC 31 of 2014 & AC 3 of 2015).

[2] The appeals were heard sequentially. As a great deal of the background is common to both it is convenient that they are dealt with in a single judgment.

The facts
[3] The first robbery took place on 20 March 2008. Neither of the appellants was involved. It was carried out by two associates, Samuela 'Alatini and 'Opeti Fekau. They followed the victim's vehicle until it stopped at a shop. Both were disguised. 'Alatini went to the driver's side, threw the victim out of the vehicle and got into the driver's seat. Fekau got into the front passenger's seat. They drove off with a bag containing cash of $6,000, recharge cards to the value of $1,000 and a digital camera valued at $400 which had been on the back seat.

[4] The second robbery took place on 26 May 2008. Samuela 'Alatini and 'Opeti Fekauwere again involved together with the appellants and Samuela 'Alatini's brother, Tevita. They rented a car. They changed its appearance the day before the robbery by tinting the windows, changing the licence plate and covering the back window. The following day all except Tevita 'Alatini went in the car and parked near a Westpac Bank at Kolofo'ou. They saw two people get out of a business vehicle and approach the bank. One, a girl, was holding a handbag. Samuela 'Alatini and 'Opeti Fekau got out of the rental car and accosted the two. Both were disguised. Each carried a shotgun. Fekau attempted to wrench the handbag from the girl. She resisted. A colleague of the victims got out of their vehicle to try and assist them. Samuela 'Alatini fired at him hitting him in the thigh. The girl then let go of the bag. 'Alatini and Fekau rejoined the appellants who had remained sitting in the car. They drove off with the bag which contained approximately $3,000 and a mobile phone worth $375. They met up with Tevita 'Alatini and removed the disguise from the car, which was returned the following day by Tevita 'Alatini. They divided the proceeds of the robbery between them.

[5] All five admitted the offending when interviewed and pleaded guilty after a voir dire which found the statements of Mr. Latu and Tevita 'Alatini to be admissible.

The sentences

Mr. Foliaki

[6] Mr. Foliaki pleaded guilty to charges of conspiracy to commit armed robbery and abetment of armed robbery. They carry a maximum sentence of 20 years imprisonment, the same as armed robbery itself: sections 15 & 154(3) Criminal Offences Act (Cap.18).He was also sentenced on charges of housebreaking and theft arising out of entry into a house on 23 May 2008, a few days before the robbery.

[7] Mr. Foliaki, was sentenced to 15 years imprisonment on the two robbery charges and concurrent sentences of 5 and 2 years on the housebreaking and theft charges. A suspended sentence of 18 months imposed in 2006 was activated. He is accordingly serving a total of 16 ½ years imprisonment.

Mr. Latu
[8] Mr. Latu also faced charges of conspiracy and abetment of armed robbery. He too was sentenced to 15 years imprisonment on those charges. He was also sentenced to a concurrent term of two years on an unrelated housebreaking charge. An earlier suspended sentence of 1 year on drug charges was invoked. His total sentence is therefore 16 years imprisonment.

Tevita 'Alatini

[9] Like the appellants, Tevita 'Alatini faced charges of conspiracy and abetment of armed robbery. He was also sentenced on a charge of housebreaking of which he had been found guilty. Recognising his lesser role in the robbery, Ford CJ sentenced him to 8 years imprisonment with a sentence of 2 years on the housebreaking charge to be served concurrently. 4 years of the sentence was suspended for 3 years. His sentence was accordingly reduced to 4 years.

Samuela 'Alatini

[10] Samuela 'Alatini was sentenced on a single count of robbery in relation to the March robbery and a total of 5 charges in relation to the armed robbery. They included charges of possession of firearms and ammunition and of causing grievous bodily harm. Recognising his leading role in the robbery – the judge described him as the ringleader – and identifying a starting point of 15 years for armed robbery, the judge said that were it not for his guilty pleas he would have sentenced him to 18 years imprisonment. After credit for his guilty pleas he was sentenced to 15 years on the most serious charges with lesser concurrent sentences on the remainder. Unfortunately for Mr. 'Alatini he also had a suspended sentence (of 3 years) hanging over his head. His total sentence was thereby restored to 18 years.

'OpetiFekau

[11] Mr. Fekau was sentenced on one count of abetment of robbery in relation to the March robbery and charges of armed robbery, conspiracy to commit armed robbery and unlawful possession of a firearm in relation to the second robbery. Unlike the others he had no previous convictions. From a starting point of 15 years, the sentencing judge deducted 2 years to take account of Mr. Fekau's guilty pleas, imposing sentences of 13 years on the armed robbery charges with concurrent sentences of 5 years on the lesser firearms and robbery charges. He suspended the last 4 years for 3 years, reducing the time Mr. Fekau would be required to serve to 9 years.

Comment

[12] Before considering the individual appeals of Mr. Foliaki and Mr. Latu, it is convenient to make some general observations on the sentences passed on the offenders. We acknowledge the difficulties facing the judge who was striving for consistency in sentencing co-offenders whose roles and overall culpability varied significantly. He sought to achieve that by adopting 15 years as the lead sentence for the most serious offending, the armed robbery in which all offenders participated. It appears however that he failed to give sufficient recognition and make appropriate adjustments in some cases for the totality of the offending and the credit to be given for early guilty pleas.

[13] It is, for example, anomalous that the starting point adopted for each of the appellants should be the same as for Samuela 'Alatiniand 'Opeti Fekau who were the two who carried out the March robbery and had the leading role in the armed robbery. Even allowing for the housebreaking and (in Mr. Foliaki's case) theft charges on which they were also being sentenced, the overall criminality of the appellants was plainly a great deal less than that of Samuela 'Alatini and 'Opeti Fekau.

[14] The judgerecognised that all offenders were entitled to a discount for what the Crown acknowledges were early guilty pleas. Samuela 'Alatini's was recognised by reducing the end sentence (after allowing for aggravating factors particular to him) from 18 years to 15 years. 'OpetiFekau was given a credit of 2 years to reduce his sentence to 13 years. But neither of the appellants received any credit in fact, despite the judge's acknowledgement that they were entitled to it. Their sentences remained at the starting point of 15 years.

[15] In the light of this disparity, it is necessary to revisit the sentencing of both appellants. For that purpose we invited submissions from counsel as to what would be an appropriate starting point and what credit should be given for the guilty pleas.

[16] Mr. Kefu had very helpfully provided us with a schedule of decisions in this court and the Supreme Court on sentences for robbery and armed robbery since 1999 when the maximum sentence for armed robbery was increased to 20 years. As sentences are always fact-specific, caution is required before taking too much from sentences in other cases. The decisions to which we were referred, however, including decisions of this Court (e.g. Fifita v R [2000] Tonga LR. 47, Malafu v R [2002] Tonga LR 36) show that the starting point of 15 years was a great deal higher than has prevailed over that period. They are consistent with Mr. Kefu's submission that in a case such as the present a starting point of 10 years would be within the appropriate range.

[17] The armed robbery had a number of aggravating features including the level of premeditation as evidenced by the elaborate preparations made and the use of disguises; the targeting of vulnerable victims; the deployment of firearms and the actual violence inflicted. In our judgment they justify a starting point at the level suggested by Mr. Kefu.

[18] Counsel were agreed that a credit of up to 33% could appropriately be given for a guilty plea. We have no reason to question a discount of that order for an early guilty plea particularly if there is co-operation with the police and indications of genuine remorse.

Mr. Foliaki's appeal

[19] Mr. Foliaki participated fully in the planning, preparation and execution of the robbery. His overall culpability may be assessed as less than that of Samuela 'Alatini and 'Opeti Fekau (leaving aside the discharge of the firearm, a significantly aggravating feature of 'Alatini's offending), though not a great deal less. In our view a starting point of 9 years would appropriately reflect his offending. We must, however, have regard to the charges of housebreaking and theft. If the starting point is restored to 10 years, we consider the totality of his offending is appropriately captured.

[20] As we have said, all offenders entered early guilty pleas, not at the earliest opportunity it seems, but early enough to attract a generous discount. It appears also that there was full co-operation with the police. Mr. Foliaki made a full confession. He also pleaded guilty to the earlier charges. In the circumstances we consider or discount of 25% or 2 ½ years is warranted.

[21] That would reduce Mr. Foliaki's sentence to 7 ½ years. The suspended sentence will increase the time he is required to serve to 9 years.

Mr. Latu's appeal

[22] Mr. Latu sought leave to appeal out of time on the ground that he had recently married. That was clearly an insufficient reason to grant leave. However, the successful appeal of Mr. Foliaki and the implications it has for Mr. Latu's sentence plainly require that leave is granted.

[23] Mr. Latu's position does not differ materially from Mr. Foliaki's. His sentence must also reflect his housebreaking offence. The totality of his offending is broadly equivalent to Mr. Foliaki's. He also is entitled to receive a generous discount for his guilty plea. We conclude that his sentence on the robbery charges should also be reduced to 7 ½ years. His suspended sentence will increase the total time he is required to serve to 8 ½ years.

Result

[24] Mr. Foliaki's appeal succeeds. The sentences of 15 years on the counts of conspiracy to commit armed robbery and abetment of armed robbery are quashed. In their place we impose sentences of 7 ½ years imprisonment. The total sentence he is required to serve is amended accordingly to 9 years.

[25] Mr. Latu's application for leave to appeal is granted and his appeal allowed. The sentences imposed on the charges of conspiracy to commit armed robbery and abetment of armed robbery are quashed and sentences of 7 ½ years imprisonment substituted. The total sentence he is required to serve is amended to 8 ½ years imprisonment.

Moore J

Blanchard J

Hansen J