R v Langi [2009] TOLawRp 53; [2009] Tonga LR 342 (21 August 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 171/2008

R

v

Langi

Ford CJ
18 August 2009; 21 August 2009

Sentencing appeal – grievous bodily harm and attempted robbery – 18 years total imprisonment – revoked and replaced with 8 years imprisonment

For the Court of Appeal judgment, see Langi v R [2009] Tonga LR 338

After a judge alone trial in September 2008 the accused was found guilty on one count of grievous bodily harm and one count of attempted robbery. He was sentenced to a total of 18 years imprisonment and appealed to the Court of Appeal against both conviction and sentence. On 10 July 2009 the Court of Appeal dismissed his appeal against conviction but it upheld the appeal against sentence. The Court of Appeal held, first, that the individual sentences of 10 and 8 years were "manifestly excessive". It also held that the judge was wrong in making the sentences consecutive. The Court of Appeal was critical of the fact that the judge had imposed sentence without first requiring a probation report and it stated that a probation report was highly desirable where an accused was a first offender and nothing was known of his personal circumstances. The court decided that the question of the appropriate sentence should be reconsidered by another judge after obtaining a probation report. Finally the court noted that the sentences ultimately imposed should run from 1 April 2008 which was the date on which the accused was first placed in custody.

Held:

1. The probation report noted that the accused had prior convictions and was on bail for another criminal offence. That was one of the reasons why the Court of Appeal stressed the importance of obtaining a probation report prior to sentencing. A probation report would have alerted the sentencing judge to all of the relevant background material.

2. There were two particularly serious aggravating factors. First, the weapon used was a loaded rifle and it was difficult to imagine a more potent or dangerous weapon. The other factor was that at the time of the offending, the accused was on bail for other offences of a like nature.

3. The Court revoked the sentencing orders and imposed the following fresh sentences: six years imprisonment for count 2 (grievous bodily harm) and eight years imprisonment for count 3 (attempted armed robbery). The sentences were concurrent and were deemed to have commenced on 1 April 2008.

Case considered:

Fifita v R [2000] Tonga LR 289 (CA)

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown : Mr Lutui
Counsel for the accused : Mr Fifita

Judgment

[1] After a judge alone trial in September 2008 before Shuster J. you were found guilty on one count of grievous bodily harm contrary to section 106(1) of the Criminal Offences Act and one count of attempted robbery, contrary to sections 4(1) & 154(3) of the same Act. You were sentenced to a total of 18 years imprisonment. You then appealed to the Court of Appeal against both your conviction and sentence.

[2] On 10 July 2009 the Court of Appeal dismissed your appeal against conviction but it upheld your appeal against sentence. Shuster J. had sentenced you to 10 years imprisonment on the attempted robbery charge which was the maximum sentence for that offence (i.e. half the maximum sentence (20 years) for actually committing the offence). The maximum sentence for the other charge of causing grievous bodily harm is also 10 years imprisonment and on that count the sentencing judge sentenced you to eight years imprisonment. He then made both sentences consecutive which meant that your total sentence was 18 years imprisonment.

[3] The Court of Appeal held, first, that the individual sentences of 10 and 8 years were "manifestly excessive". It also held that the judge was wrong in making the sentences consecutive. The Court of Appeal was critical of the fact that the judge had 60 imposed sentence without first requiring a probation report and it stated that a probation report is highly desirable, if not essential, in cases such as yours where an accused is a first offender and nothing is known of his personal circumstances. The court decided that the question of the appropriate sentence in your case should be reconsidered by another judge after obtaining a probation report. Finally the court noted that the sentences ultimately imposed should run from 1 April 2008 which was the date on which you were first placed in custody.

[4] I now have the advantage of having before me a helpful probation report referring to your background and your domestic situation. You are 35 years of age, married with two young sons aged seven and three months old respectively. The probation officer describes your wife and children as "a lovely family". Your wife told the probation officer that since your marriage in 2001 you have been a responsible father caring and loving her and your eldest child and that you would go to church every Sunday. She could not understand your criminal offending in 2007 but she put it down to drunkenness and mixing with the wrong acquaintances.

[5] By way of background, the probation officer notes that when you were in class four at primary school your family emigrated to America but then in 1997 when you would have been about 23 years of age you were deported back to Tonga after serving a three-year sentence in the States on a manslaughter charge arising out of a motor vehicle accident.

[6] The probation officer noted that you had prior convictions back in 2000 and 2002. In February 2000 you were given a two-week suspended sentence for theft. Obviously, that must have been a very minor offence. In October 2000 you were fined for being in possession of Indian hemp. Then in January 2002 you received four months imprisonment for housebreaking and six months for theft with both sentences being concurrent.

[7] The first point I note is that it is difficult to reconcile that criminal record with your description by the Court of Appeal as a "first offender". The Court of Appeal decision recorded that defence counsel had described you as a first offender. It can only be assumed that your counsel had no knowledge of the previous convictions and Crown counsel who appeared at the appeal hearing did not have any information to the contrary before him otherwise he would have corrected the submission from your counsel. It could hardly be claimed that the convictions were so minor that they could be put to one side. It is noted, however, that after those convictions you do appear to have kept out of trouble for a period of over five years and that is to your credit.

[8] There is another complication in relation to your background offending. In its decision, the Court of Appeal noted that at the time you committed the offences in question, namely October 2007, you were already on bail for another criminal offence involving the use of weapons which had occurred on 30 May 2007. That offending was the subject of another indictment, CR 267/2007, which was handled by Andrew J. Your trial before Shuster J. took place in September 2008 and you were sentenced on 5 September 2008. Justice Shuster made no reference to you having any prior convictions and he did not appear to know about the other case before Andrew J. which still had to be dealt with. That is one of the reasons, no doubt, why the Court of Appeal stressed the importance of obtaining a probation report prior to sentencing. A probation report would have alerted the sentencing judge to all this relevant background material.

[9] You were arraigned before Andrew J. on the charges arising out of the May 2007 incident on 29 October 2007 and you pleaded not guilty. Your trial was fixed for 29 September 2008. The trial date was then adjourned until 7 November 2008 and on that date, by which time you were already in prison serving out the sentence imposed by Shuster J. two months beforehand, you were re-arraigned and pleaded guilty. Andrew J. obtained a probation report before sentencing you on 16 December 2008. You were then sentenced as follows: Count 1 (unlawful imprisonment, i.e. detention of another person) fined $500; Count 2 (discharge of a firearm with intent to intimidate) three years imprisonment; Count 3 (abetment to armed robbery) nine years imprisonment. The sentences were made concurrent making nine years imprisonment in total and that sentence was made concurrent with the 18 year sentence Justice Shuster had imposed.

[10] It is unfortunate that the Court of Appeal do not appear to have been given any information regarding CR 267/2007. It is noted, however, and this could well be the explanation, that before Andrew J. you were represented by Mr George Fifita whereas before Shuster J. and in the Court of Appeal you were represented by Mr Teisina Fifita. Andrew J. in his sentencing remarks referred to the 18 year sentence that you were then serving, properly noting that your offending in that case had taken place after the offending His Honour was then sentencing you on but he observed that your sentencing on the respective cases could not have been dealt with together because you had not changed your plea to guilty until after you had been sentenced by Shuster J.. It is not clear whether the sentence imposed by Justice Andrew was influenced in any way by the 18 year sentence you were then serving.

[11] Had Justice Shuster known about the other case that was then pending before Andrew J. he most likely would have adjourned sentencing so that, in the event of a conviction in the latter case, sentencing in both matters could be dealt with together. That did not happen, however, and there has been no appeal against the decision of Andrew J.. Whatever sentence I impose this morning, therefore, will have no bearing on the nine-year sentence imposed by Justice Andrew in CR.267/2007.

[12] I now turn to my reconsideration of the 18 year sentence that has been referred back to this court by the Court of Appeal. In doing so I take into account the observations made by the Court of Appeal and the helpful background information disclosed in the probation report.

[13] A relevant authority which this court is bound by is the Court of Appeal decision in Fifita v R [2000] Tonga LR 289 where the accused had applied for leave to appeal against sentence on two counts of armed robbery and one count of robbery. On each count of armed robbery the sentence imposed had been imprisonment for four years and on the robbery count the sentence had been imprisonment for three years, all to be served concurrently. The convictions also triggered the operation of a previously imposed suspended sentence of one year's imprisonment for housebreaking making a total sentence of 5 years' imprisonment.

[14] In Fifita, the accused was a young man 20 years of age. On the night of the first offence he had been drinking with another young man, they came upon a shop, they went in and hit the person in the shop with a piece of rock knocking him to the floor and the accused's companion threatened him with a knife. The accused then took $180 in cash and tried to hit the complainant with a bottle but missed. On the day of the second lot of offending, the accused took a small machete from a storekeeper and went to another store where he threatened the person minding the shop with a machete and took $200. On the third occasion the accused entered a shop minded by a woman where he took $10 and pushed her to the floor injuring her arm. The earlier matter in which the accused had been given a suspended sentence involved a break-in to the Yacht Club where he took items totalling almost $3500 in value.

[15] The Court of Appeal made specific reference to the amendment to the Criminal Offences Act in 1999 which increased the maximum sentence for armed robbery to 20 years and it noted:

"Plainly, the legislature regarded this offence very seriously. And it is to be remembered it is an offence which inevitably involves a severe danger that a robber armed with an offensive weapon may cause death or serious injury to an innocent person. Such an offence cannot be treated lightly.

"The purposes of a sentence imposed on an offender are to punish so far as it is just and fitting in the circumstances; the deterrence of criminal behaviour by the offender and others; 170 the rehabilitation of the offender to fulfil a useful role in society; the vindication of society's standards; and the protection of law-abiding members of the community."

The court added that rehabilitation was of particular importance in the case of a young man.

[16] The Court of Appeal concluded that there was no ground to interfere with the sentences that had been imposed and the application for leave to appeal was dismissed.

[17] The charges you faced before Andrew J. under indictment 267/2007 were committed with a co-accused. On 29 May 2007 you both stopped a taxi and 180 unlawfully detained the taxi driver by tying him up and putting him in the back of a car. You had a rifle which you discharged out the window of the vehicle to intimidate the taxi driver. Next morning you both tied the taxi driver to a tree and used his vehicle to drive to the Money Gram Office at Lapaha where your co-accused fired one shot at the office window and stole a handbag containing $20,000. You waited in the getaway car and you both drove off together. You were convicted of abetment to armed robbery. As the robbery was carried out, the punishment for abetment is the same as if you had actually committed armed robbery and the maximum sentence for that offence is 20 years imprisonment.

[18] The charges you faced in the case before Shuster J. under indictment CR 190 171/2008 related to an incident on 26 October 2007. The facts were described by the Court of Appeal as follows:

"The appellant and another man were alleged to have decided to rob the store. They parked their car close to a store owned by a Chinese couple. The Crown says they donned red hoods, and took a .22 rifle from the boot of the car. The other man performed the role of the lookout while the appellant went to the store, which was protected by a grill, pointed the rifle at the Chinese women inside and demanded money. She panicked and turned to leave the front of the shop and was shot suffering serious injuries. The accused and his accomplice then ran back to the car and drove away."

[19] Although, as noted, the Court of Appeal held that the individual sentences imposed of 10 years and 8 years imprisonment were "manifestly excessive" it commented:

"... we do agree with the judge that this was a cowardly shooting of a defenceless woman and deserves a substantial sentence."

[20] There are two particularly serious aggravating factors in your case. First, the weapon used was a loaded rifle and it goes without saying that it is difficult to imagine a more potent or dangerous weapon. The other factor is that at the time of your offending, you were on bail for other offences of a like nature.

[21] The probation officer reports that you dropped out of High School in Form 2 and you became a carpenter working in your uncle's construction company. You and your wife are of the catholic faith and the probation officer states that you both come from a very strong catholic background. The probation officer speculated that there was someone else behind the crimes you committed but you had to provide the rifle. However, there is no other evidence on this matter before the court and although your counsel referred to it the other day, the proposition was specifically rejected by Crown counsel and so I put it to one side.

[22] It is clear from the probation report that you are finding the experience at Huatolitoli prison much more difficult and challenging than your experience with the prison system in the United States. You explained to the court that you were not required to serve hard labour in the States but at Huatolitoli you are subjected to hard labour six days a week. What you told the Court has been noted but such matters are not really relevant when it comes to sentencing.

[23] Your lawyer has stressed that you are truly remorseful and that you have resolved that upon your release from prison you will concentrate on your family and upon living a law-abiding life. Counsel also stressed the fact that no money was taken in the attempted robbery. I am prepared to accept those submissions.

[24] For the reasons mentioned, I have not found this an easy case to deal with. It has not turned out to be as straightforward as I suspect the Court of Appeal assumed might have been the case.

[25] Having acted as best as I can on the directions given by the Court of Appeal to reconsider the sentences imposed and having taken into account everything that I have touched upon above and the other submissions made by your counsel, I now revoke the sentencing orders made by this court on 5 September 2008 and impose following fresh sentences:

Count 2 (grievous bodily harm) -- 6 years imprisonment.

Count 3 (attempted armed robbery) -- 8 years imprisonment.

[26] The sentences are concurrent making a total sentence of 8 years imprisonment. That sentence, in turn, is to be concurrent with the sentence imposed by Justice Andrew in CR267/2007. In accordance with the directions of the Court of Appeal, the 8 year term is deemed to have commenced on 1 April 2008.