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Langi v R [2009] TOLawRp 42; [2009] Tonga LR 338 (10 July 2009)

IN THE SUPREME COURT OF TONGA
Court of Appeal, Nuku'alofa

AC 15/2009

Langi

v

R

Burchett, Salmon, and Moore JJ
7 July 2009; 10 July 2009

Criminal law – attempted robbery and grievous bodily harm – appeal against conviction and sentence – conviction stands – no probation report – sentence to be reconsidered by Supreme Court

For the Supreme Court sentencing judgment, see R v Langi [2009] Tonga LR 342

The appellant and another man were alleged to have decided to rob a store. They parked their car close to a store owned by a Chinese couple. The Crown said they donned red hoods, and took a .22 rifle from the boot of the car. The other man performed the role of lookout while the appellant went to the store, which was protected by a grill, pointed the rifle at the Chinese woman 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. The appellant was convicted and sentenced to the maximum sentence of 10 years imprisonment on the attempted robbery charge and 8 years imprisonment on the charge of causing grievously bodily harm the sentences to be served consecutively. The appellant appealed against both conviction and sentence.

Held:

1. The Court of Appeal concluded that the appeal against conviction must be dismissed. The evidence of the witness was sufficient to support a conviction even without his statement to the police. He placed the appellant at the scene, in possession of the rifle and wearing a red hood. He gave evidence of hearing the gunshot.

2. The Supreme Court imposed the sentence without first requiring a probation report. A probation report was highly desirable if not essential in cases where the prisoner was a first offender and nothing was known of his personal circumstances. The seriousness of the charges added to the desirability of the report.

3. The appeal against sentence should be allowed and the question of the appropriate sentence remitted to the Supreme Court for fresh consideration by another judge after obtaining a probation report.

Statute considered:

Evidence Act (Cap 15)

Counsel for the appellant : Mr Fifita
Counsel for the respondent : Mr Kefu and Mr Lutui

Judgment

[1] The Appellant was convicted of attempted armed robbery and of causing grievous bodily harm after a Judge alone trial before Shuster J. He was sentenced by the judge to 18 years imprisonment. The appeal is against both conviction and sentence.

Background

[2] The appellant and another man were alleged to have decided to rob a 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 lookout while the appellant went to the store, which was protected by a grill, pointed the rifle at the Chinese woman 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.

[3] The principal evidence at the trial was given by a witness who with a friend, was picked up by the appellant while walking along the road. This witness made a statement to the Police in which he said he heard the appellant say he wanted "to rob the Chinese to receive money to pay for the gun" The appellant parked the car near the Chinese store. The witness in his statement to the police then outlined the facts recorded above. He also said in his statement that when the appellant got back into the car he said they didn't receive any money "because the Chinese ran off so I shot the Chinese in the ass" In his evidence at the trial the witness was much less forthcoming. He said that the two men got out of the car with a gun and that the person with the gun was probably the accused. He said the two men walked to the store and he heard a bang from the gun. He said couldn't be certain who was holding the gun. When asked whether he believed his police interview was correct be said "yes from what I can remember". After his statement was read to him he agreed that was the statement he gave to the Police, and that the two men were wearing red hoods but continued to express uncertainty as to who was holding the gun. In cross examination he said the police did not force him to say anything. He also said he knew both the appellant and the other man. The complainant was unable to identify the holder of the gun other then to say he wore a red hood. The appellant denied any involvement in the attempted robbery and did not give evidence.

[4] The judge found the case against both men proved. He did say, incorrectly, that there was only one red hood. One hood was produced in evidence but there was no evidence as to where it was found.

The Appeal

[5] The notice of appeal alleged that the Judge was prejudiced and biased against the appellant and claimed that a refusal of bail and other matters relating to sentencing deprived the appellant of due process of law. The appeal claims that the offence was not proved and the sentences were excessive.

[6] Mr Fifita maintained his allegation of bias in his submissions before us. He submitted that medical evidence was a requirement in a grievous bodily harm case and because none was called the charge should have been dismissed. As to sentencing he noted that the accused was a first offender and that the judge should have called for a probation report. In oral submissions Mr Fifita acknowledged he had no authority to support his contention as to the need for a medical certificate. He also emphasised that the only evidence implicating the appellant was that of the witness referred to above.

[7] Mr Kefu for the Crown pointed out that at the time of the bail application the appellant was already on bail for another criminal offence involving the use of weapons. We agree that in these circumstances the refusal of bail was appropriate. As to a probation report he noted that the judge had a discretion whether to call for one but that it is normal practice to call for one where an accused has not given evidence of his circumstances. Mr Kefu said that counsel for the appellant had the opportunity to make a plea in mitigation but did not do so.

The Conviction Appeal

[8] We have concluded that this appeal must be dismissed. We are satisfied that the evidence of the witness referred to above is sufficient to support a conviction even without his statement to the police. He places the appellant at the scene, in possession of the rifle and wearing a red hood. He gives evidence of hearing the gunshot. We do not consider him to be an accomplice but even if he was, his evidence would be admissible as a result of the provision in s 126 of the Evidence Act which makes admissible evidence corroborated in a material particular. In this case it is corroborated by the complainant who referred to the gun and the hood. We do not accept the appellant's contention that the judge was biased and prejudiced against the appellant. There is nothing in the judgment to support that contention.

The Appeal Against Sentence

[9] We have decided that the sentence appeal should be allowed and the question of the appropriate sentence remitted to the Supreme Court for fresh consideration by another Judge. Shuster J sentenced the appellant to the maximum sentence of 10 years imprisonment on the attempted robbery charge and 8 years imprisonment on the charge of causing grievously bodily harm the sentence to be served consecutively. He did so without first requiring a probation report.

[10] We would emphasise that a probation report is highly desirable if not essential in cases such as this where the prisoner is a first offender and nothing is known of his personal circumstances. The seriousness of the charges adds to the desirability of the report. It is because we have no report that we have decided the quantum of the appropriate sentence should be reconsidered by the Supreme Court after obtaining a report.

[11] We are satisfied however that the sentence imposed by the Judge is manifestly excessive both as to the individual sentences and making them cumulative. We also observe and the Crown conceded that the Judge's comment on sentencing that the gun was used in anger is not supported by the evidence. Having said this we do agree with the Judge that this was a cowardly shooting of a defenceless woman and deserves a substantial sentence. However to impose the maximum or close to maximum sentence on a first offender on the facts of this case is not justified.

Finally we note that the sentences ultimately imposed should run from the 1st April 2008 which we are advised is the date on which the appellant was first placed in custody.