IN THE SUPREME COURT OF TONGA
CRIMINAL APPEAL JURISDICTION
NUKU'ALOFA REGISTRY

NO.CR.APP.21/01

BETWEEN:

WESLEY PRESCOTT
Appellant

AND:

POLICE
Respondent

BEFORE THE HON MR JUSTICE FORD

Counsel: Mrs Vaihu for the appellant and
Miss Tupou for the Crown.

Date of hearing: 30 November 2001.
Date of judgment: 5 December 2001.

JUDGMENT

Earlier this year three cases came on appeal to this Court from decisions of the same magistrate. They each involved a charge of driving a motor vehicle while under the influence of alcohol. None of the appellants had any previous convictions and they all had pleaded guilty. On the driving under the influence charge, each appellant had been sentenced to 2 months imprisonment and disqualified from driving. The other two appeals were heard in October and judgments, allowing the appeals, were given on 2 November. This case is the third of the three appeals referred to. It was not heard until 30 November.

In addition to the driving under the influence charge, the appellant in the present case was charged with reckless driving to which he also pleaded guilty and was fined $100.

At the hearing in the court below on 21 June 2001, the prosecutor outlined the summary of facts. He said that on the night of Thursday 24 May 2001, the accused had been drinking with friends at Longolongo and he then drove his car in a southerly direction towards Tofoa looking for a kava party. While he was driving he was listening to the music on his car radio and while he was trying to change a cassette in his recording machine he swerved off the road and collided with a power pole.

Counsel for the appellant, Mrs Vaihu, appeared at the Magistrates' Court hearing and made submissions in mitigation. She accepted that the defendant was under the influence of alcohol. She told the court that the defendant was a 36 year old married man whose wife had given birth to their first child the previous Saturday. Counsel told the magistrate that the defendant was a taxi driver by occupation and he had no other source of income as his vehicle was off the road awaiting repairs. Counsel pointed out that the defendant was a first-time offender and she went on to invite the court to impose a fine or a suspended sentence.

In passing sentence the learned magistrate said:

"As the police prosecutor has said , you were drunk on this night (24/5/01) and you were driving along Vaha'akolo Road and you crashed into the power pole at Tofoa. The Court has to take care of the public and due to the fact that there are so many vehicles nowadays, you must be careful when you are driving in order to protect the lives of the public. Your pleading guilty and no previous record helps the court to lessen the penalty that the court will hand down. So the penalty will be that you will serve 2 months in prison for driving under the influence of alcohol and for reckless driving a fine of $100 to be paid within 2 months, if not 2 months imprisonment."

The magistrate overlooked the mandatory requirement to cancel the appellant's driving licence and so on 18 Jul 2001 the appellant was re-called and his driving licence was suspended for a period of one year. No issue is made of the late re-call.

In this Court, Mrs Vaihu for the appellant, said that on the day of the incident the appellant had consumed six bottles of Royal beer over a period of about one hour. She said that there was no evidence that the alcohol had affected his driving in any way prior to the accident. Counsel said that there was no medical report obtained by the police to confirm that the appellant was under the influence of alcohol but he had been charged because the investigating officer had smelt beer on his breath and, when asked, he admitted that he had been drinking. Counsel told the court that the accused had married last year which was late in his life. She said that he had saved up to buy the taxi which was his own vehicle but the family did not have the money to repair it and so the accused is presently working as a security watchman earning $50 per week. Some impressive references were produced to the court on his behalf. Counsel referred to the appellant's excellent driving record and strongly urged the imposition of a fine or a suspended sentence.

For the Crown, Miss Tupou submitted that the sentence imposed was appropriate to the facts of the case and it fell within the magistrate's discretion. She noted that in addition to the alcohol charge, the appellant had also pleaded guilty to a charge of reckless driving. Crown counsel submitted that it was fortunate that it was only a pole that the appellant had collided with on this occasion and she said that the magistrate was quite entitled to express concern over the increasing number of motor accidents involving alcohol and to give the message to the wider community that drinking and driving will not be tolerated.

In both the other appeals I referred to earlier, (Cr App No. 22/2001) and (Cr App No, 25/2001), the court had to consider the submission that arises in this case, namely, whether the magistrate had applied the correct sentencing principles. What was of concern in the the other cases was that the magistrate had imposed the same custodial sentence of two months imprisonment on each offender even though the circumstances of each offender and of the offending differed considerably.

After reviewing the authorities, I concluded, for the reasons set out in the judgments, that the magistrate appeared to have failed to properly exercise his discretion in accordance with recognised sentencing principles. I do not propose to repeat all that I said in those judgments but in Cr App No. 25/2001 I set out the approach which magistrate's in the Kingdom should adopt in future in relation to sentencing on driving under the influence charges

In all the circumstances, it is difficult to avoid the suspicion that in the present case the learned magistrate has simply followed the same approach to sentencing which I was critical of in the other appeals. In other words, as it had been expressed to the court in one of those cases, "the magistrate's mind was fixed on a sentence of imprisonment regardless of the circumstances of the offending and the circumstances of the offender".

In general, unless the circumstances are exceptional in some way, such as where there is an accident involving injury or death for example, a custodial sentence is unlikely to be upheld in respect of a driving under the influence charge, unless the circumstances of the offending reveal a high level of intoxication combined with either a record of similar offending in the past or especially dangerous driving, or both. Even in those, one would hope, relatively rare cases where a custodial sentence for a first-time offender would be appropriate, the magistrate will still need to consider whether, in all the circumstances, a suspended sentence is called for.

I consider that the justice of the case can best be met, therefore, if I simply follow the same approach in this case which I adopted with the other appeals. I propose to allow the appeal and refer the case back to the Magistrates' Court for re-sentencing before another magistrate. I deliberately refrain from making any comments on the succinct submissions presented by both counsel in this Court.

NUKU'ALOFA: 5 DECEMBER 2001.

JUDGE