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Tuaga v R [2003] TVHC 6; Case No 03 of 2002 (17 February 2003)

IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 3/2002

TUAGA TUAGA

v

R

Hearing: 14 February 2003
Reasons: 17 February 2003

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

REASONS FOR JUDGMENT

The appellant appeared before the Resident Magistrate sitting in Funafuti on 4 December 2002 charged with one count of criminal trespass, contrary to section 182 (2) of the Penal Code.

He pleaded guilty and the facts were that he had gone into the complainant's house at night to sleep when he was drunk. The complainant was out at the time and returned to find the appellant asleep on the floor. There was no suggestion that he had caused any damage or done anything more than was outlined.

It appears that the appellant and the complainant are related by adoption.

He had one previous conviction in November 2001 for drinking under age.

He was sentenced to 4 months imprisonment and appeals against that sentence on the ground that it was manifestly excessive. Counsel for the respondent does not seek to support the sentence.

The appellant was 17 years old at the time and had a job.

I allowed the appeal and said I would give my reasons later which I now do.

In a case such this where there is a relationship with the owner of the premises upon which the trespass occurred and where there was clearly no motive other than to find a place to sleep, the imposition of a custodial sentence was inappropriate.

The appellant has only one minor previous conviction and so was, in effect, a first offender and was very young. He had the advantage of employment and the seriousness of the penalty was added to by the risk he might lose that job - a risk the magistrate should have investigated before deciding on the sentence.

I would also point out that, in the case of young offenders with few or no previous convictions, where the magistrate considers immediate imprisonment is a possible sentence, he should always ensure he has full information about the offender before he decides.

I have no hesitation in saying this sentence was wholly inappropriate and excessive and it is quashed.

Dated this 17^th day of February 2003.

Gordon Ward
Chief Justice