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Lisale v R [2003] TVHC 17; HC Crim Case No 7 of 2003 (24 September 2003)

IN THE HIGH COURT OF TUVALU

CRIMINAL JURISDICTION

CASE NO: 7/03

PO'OPU LISALE

v

R

James Duckworth for the appellant
AG for respondent

Hearing: 22^nd September 2003
Judgment: 24^th September 2003

Judgment

The appellant appeared before the Resident Magistrate on 4 June 2003 charged with one offence of drinking in a prohibited area, contrary to section 118 of the Alcoholic Drinks Act, (cap 69). He was fined $30.00 with one month to pay and 3 months imprisonment in default of payment. He appeals that sentence on two grounds.

He is currently serving a sentence of 2 years imprisonment imposed on 10^th April 2003 for a different offence and the first ground of appeal is that, as a consequence, he will not be able to pay a fine and therefore the sentence passed by the magistrate is tantamount to a sentence of imprisonment.

The offence for which he was fined by the resident magistrate was committed on 21 December 2002, prior to the sentence of imprisonment he is now serving. Had it been heard soon after the offence it would undoubtedly have been possible for the appellant to pay it and avoid the default term. It should also be borne in mind that the penalty under section 118 does not include imprisonment.

I agree that the magistrate, knowing of the current sentence, would have realised that it was unlikely the appellant would be able to pay and so the effect would be to impose a sentence the section would not allow.

At the same time, it is hard to envisage what punishment the magistrate could have ordered. As I have stated, the only penalty under the section is a fine. Alternatives such as probation or discharge were impossible in view of the current sentence. Counsel for the appellant speaks of a prohibition order. This court has insufficient evidence of the appellant's convictions prior to December 2002 to know if such a penalty was available in this case. In any event, the time it would cover would have been entirely within the time the appellant is in prison when, it must be assumed, he would be prohibited from drinking alcohol anyway.

In those circumstances, I cannot find that the magistrate erred in principle when he ordered a fine. The consequences for the appellant are harsh but that arises from his own previous criminal conduct rather than any illegality in the sentence. The appeal against the imposition of a fine is dismissed.

The second ground of appeal is against the default term ordered. The maximum terms allowed are stated in section 30 of the Penal Code and it clear the maximum for a fine of £30.00 is 2 months.

What term is actually ordered in default of payment is, subject to the upper limits set by section 30, entirely within the magistrate's discretion. It seems to me that it was in this that the magistrate might have considered the effect of the present term of imprisonment on the ability to the accused to pay the fine. Realising that it was likely to add to the present sentence, he should have considered a reduced term in default.

The appeal against the default term must be allowed and I also order that it should be reduced to a term of 1 month in view of the likelihood the appellant will not be able to pay.

The appeal is allowed to that extent. The fine of $30 stands with one month to pay and one month imprisonment in default of payment.

Dated this 24^th day of September 2003.

THE COURT.