Latu v Rex [2015] TOCA 8; AC 31 of 2014 & 03 of 2015 (31 March 2015)

IN THE COURT OF APPEAL OF TONGA

CRIMINAL JURISDICTION AC31 of 2014 & 3 of 2015
NUKU'ALOFA REGISTRY [CR186 of 2012]

BETWEEN:

PITA LATU
Appellant

AND:

REX
Respondent

Coram : Salmon J
Moore J
Blanchard J

Counsel : Mr 'O. Pouono for the Appellant
Mr. S. Sisifa SG for the Respondent

Date of Hearing: 23March 2015
Date of Judgment: 31March 2015

JUDGMENT OF THE COURT

[1] This is an appeal against an order of a Judge of the Court of Appeal refusing the appellant leave to appeal out of time against a judgment of the Supreme Court of 7 November 2008 sentencing the appellant to 15 years imprisonment for offences of conspiracy to commit armed robbery and abetment of armed robbery together with a sentence of two years for housebreaking (to be served concurrently).

[2] An application for leave to appeal out of time was initially dealt with by the President of the Court of Appeal in a judgment of 18 January 2011. Leave was refused. A further application for leave to appeal out of time was filed on 8 October 2014. That further application was refused by a Judge of the Court of Appeal on29 October 2014. Yet another application for leave to appeal out of time was filed on 12 February 2015 and refused in orders made on 16 February 2015. Those last mentioned orders are the orders against which this appeal is brought. We assume, without deciding, that it is open to a person aggrieved by a judgment of the Supreme Court, to make repeated applications for leave to appeal out of time.

[3] The ground of appeal is that the Judge of the Court of Appeal erred in the following way:

His Lordship failed in law to consider section 16(c) Court of Appeal Act where the sentence imposed under [the appellant's] conviction was not one fixed by law for the sentence can be a fine, term of imprisonment or both.

[4] Paragraph (c) of s 16 of the Court of Appeal Act provides that a person convicted on a trial held before the Supreme Court may appeal under Part III of that Actwith the leave of the Court of Appeal, against the sentence passed on his conviction unless the sentence is one fixed by law. While a person convicted of a crime to which s 16 applies has a right to appeal against conviction or a right to apply for leave to appeal against sentence, those rights must be exercised within 60 days. Thereafter any appeal or application for leave can only be brought out of time if time is extended. A decision whether to grant an extension of time is a discretionary decision. It is clear from the order made on 16 February 2015 that his Lordship concluded that there had been no material change between the time this most recent application for an extension of time was made and when the same question was considered by the President in the judgment given on 18 January 2011.

[5] The application filed on 8 October 2014 was supported by an affidavit of Denise Ma'afu, the appellant's fiancee for seven years. She explained the nature of her relationship with the appellant, the fact that they had a son and provided a brief description of the appellant's circumstances both at the time of the offence and more recently. She also referred to another case decided in the Supreme Court in which, from her perspective it seems, a shorter sentence was imposed in a case which was broadly comparable. In a further affidavit in support of the application filed on 12 February 2015, she annexed a letter from the Psychiatric Unit of Vaiola Hospital which discussed how the appellant's conduct and mental health had improved and how he was behaving responsibly and helpfully while in prison.

[6] We agree with his Lordship that nothing of relevance appears to have changed since the decision of the President on 18 January 2011. Moreover the conduct of a convicted criminal after conviction and sentence is not(at least in the ordinary course and possibly never) relevant in an appeal on the issue of whether the sentence was excessive or not. We also agree with his Lordship that the appellant's behaviour in prison is only relevant to any decisions the Commissioner of Prisons might make about the early release of the appellant.

[7] During the hearing of the appeal, one issue arose which may potentially be relevant to the question of whether leave to appeal against the sentence out of time should be granted. The Crown did not take a position on the question of whether leave to appeal out of time should be granted. However on the assumption that time might be extended, leave granted and the appeal heard, the Crown made submissions on whether the sentence imposed by the trial judge of15 years imprisonment was an appropriate sentence. The Crown submitted that the sentence imposed was excessive and an appropriate sentence would have been 12 to 14 years. In some cases, a concession like this might warrant leave being granted to appeal out of time on the basis that if there was no appeal, there could be a miscarriage of justice. However in the present case there is no material difference between the sentence actually imposed and the appropriate sentence identified by the Crown. The Crown did not really develop any persuasive argument why 15 years was excessive. Moreover the appellant was sentenced by a senior and experienced Judge. In these circumstances, we are not satisfied that leave to appeal out of time should be granted in order for the appellant to argue that the sentence was manifestly excessive which is the test we would apply if this was an appeal against sentence which had been heard in the ordinary course.

[8] The appeal against the dismissal of the application for leave to appeal out of time, is dismissed.

Salmon J

Moore J

Blanchard J