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Togiga v R [2003] TVHC 19; HC Crim Appeal Case No 08 of 2003 (24 September 2003)

IN THE HIGH COURT OF TUVALU

CRIMINAL APPEAL

CASE NO: 8/03

TASI TOGIGA

v

R

James Duckworth for appellant
AG for respondent

Hearing: 22 September 2003
Judgment: 24 September 2003

Judgment

This is an appeal against a sentence of 4 months imprisonment ordered by the resident magistrate on the grounds that the appellant was a first offender and the imposition of an immediate sentence of imprisonment in such a case was excessive.

In an appeal from the magistrate's court, this court must rely on the magistrate's record of the proceedings in the court below. It is, therefore, important that the record is accurate and includes all necessary steps taken by the magistrate in the hearing. In the present case the record is not accurate and has omitted a number of material points.

The appellant was charged with assault causing actual bodily harm and pleaded guilty but, according to the record, the charge to which he pleaded was common assault.

The outline of facts noted by the magistrate refers to the appellant punching and kicking the victim and then punching him while he was lying on the floor. In the notice of appeal, the appellant states that he only threw one punch. It must be said that the doctor's report on the victim was more in accord with the account recorded by the magistrate than with the account now advanced by the appellant.

However, the appellant was not represented in the lower court and the problem this court faces is that there is no record of whether the magistrate asked if he agreed with the facts outlined to the court by the prosecution. He should have been asked; and the fact he was asked and his reply should have been recorded. The court should never assume that an unrepresented person will tell the court if he disagrees with the facts outlined. Experience shows that he may do so if specifically asked but he is unlikely to do so otherwise. The magistrate must ensure the question is asked and that fact included in the record.

It is fundamental that a court should be told of any previous convictions before determining the appropriate sentence. Whilst convictions of previous offences may not affect the sentence passed, it is vital that the court is aware of the fact the person to be sentenced has no convictions when that is the case. The record of the lower court makes no mention of the fact that the appellant had no previous convictions or whether antecedents were dealt with at all. The only record after the conclusion of the facts of the case states:

"Mitigation: Ask court help, he have [sic] a loan at the NBT.

Decision: I have decided to award a punishment of sentence of 4 months imprisonment."

The Magistrate then, correctly, advises the appellant of his right of appeal.

It may be that these matters were, in fact, covered but this court must work on the record. If it is silent on a vital matter, it can only assume it was not dealt with. If the magistrate did not know of the appellant's previous good character, he cannot have had sufficient information to determine the proper penalty in this case.

The appeal is allowed, the conviction quashed and the case remitted to the magistrate's court for rehearing on the plea of guilty.

Dated this 24th day of September 2003.

THE COURT.