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Melo v R [2003] TVHC 2; Case No 01 & 04 of 2002 (17 February 2003)

IN THE HIGH COURT OF TUVALU
(CRIMINAL JURISDICTION)

CASE NO: 112002.
CASE NO: 4/2002.

LILO MELO v R

ULIA VAITO v R

Hearing: 14 February 2003
Judgment: 17 February 2003

James Duckworth for the appellants
Sa'aga Talu for the respondent

JUDGMENT

These two appeals arise from similar circumstances and the grounds of appeal in both are the same so I shall I shall give a single judgment for both although they were heard separately. I shall first deal with the facts of each.

Lilo Melo

The appellant appeared before the Resident Magistrate sitting in Funafuti on 17 October 2002 and pleaded guilty to two counts of driving a motor vehicle without a licence and one count of being drunk and disorderly. The offences were not linked. The offences of driving without a licence were committed on 23 June and 13 July.

The appellant had 10 previous convictions of which four were for breach of the terms of a provisional licence and four were for driving without a licence.

She was sentenced to a total of four months imprisonment and disqualified from driving for one year.

She is a 19 year old single woman living at home with her mother and extended family and is unemployed.

Ulia Vaito

This appellant appeared before the Resident Magistrate in Funafuti on 13 November 2002 charged with two offences of driving without a licence. She pleaded guilty to both.

The offences were committed on 12 and 20 of March prior to her most recent convictions.
The appellant had 13 previous convictions of which three were for breach of the terms of a provisional licence and five were for driving without a licence.

The magistrate sentenced her to a total of two month imprisonment and ordered that she return to her island, Niutao, for six months.

She is a 23 year old single woman who had been living on Niutao immediately prior to being charged with these offences. She sometimes lived on Funafuti and, when she did, worked part-time.

The main ground of appeal in both cases is simply that a sentence of imprisonment for this type of offence is inappropriate especially in view of the youth of the offenders.

I expressed the view in Tianamo Savave v R, High Court case number 2/2002, that imprisonment is not appropriate for an offence of driving without a licence. That is clearly the position but in these cases the magistrate was faced with two offenders who clearly had no regard for the law and, despite being convicted of similar offences on a number of occasions, persisted in such conduct.

In those circumstances, he should not just base the assessment of the proper sentence on the facts of the specific offence charged but also on the person's attitude to the law and the offences previously passed as demonstrated by his conduct. In such a case, a sentence of immediate imprisonment may be appropriate.

Counsel for the appellants suggests that, in such cases, the court should first impose an order of disqualification. If there should then be another offence committed, it would clearly demonstrate that the accused held the law in contempt and a term of imprisonment would be the likely penalty.

I agree that would be a sensible approach and the magistrate may feel such a course commends itself to him in future. However, in these two cases, the appellants had already shown their attitude and it is only to clear that they intended to continue driving without a licence whatever the court orders.

I am satisfied in both these cases, a sentence of imprisonment was a proper order. However, as it is the first time either has been to prison, I consider a sentence of two months was adequate.

In the case of Lilo Melo, I allow the appeal to the extent that I quash the sentences for the two offences of driving without a licence and substitute a sentence on each of two months imprisonment to be concurrent with each other and with the sentence for drunk and disorderly to make a total term of two months.

In the case of Ulia Vaito, I consider the sentence of imprisonment was correct. I consider that, when in addition, the accused is sent back to his or her island, the penalty may be reduced. However, the court was advised that the appellant was living in her island before the conviction and the only problem with the order was that she was pregnant and may need to return for medical treatment.

In her case I shall not interfere with the sentence passed but I shall add a condition that should the appellant need to return to Funafuti on the advice of a medical practitioner either for treatment or for her confinement, she shall be permitted to do so but shall file the doctor's report with the court within two days of her return.

Dated this 17^th day of February 2003.

Gordon Ward
(Chief Justice)