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Lisale v R [2003] TVHC 8; Case No 03 of 2003 (9 April 2003)

IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 3/2003

POOPU LISALE

v

R

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

Hearing: 8 April 2003
Judgment: 9 April 2003

JUDGMENT

The appellant was charged with criminal trespass by night and larceny and pleaded guilty before the Resident Magistrate on 22 January 2003. He was sentenced to 4 months imprisonment on the first charge and fined $10.00 on the second with 2 weeks to pay or one month imprisonment in default. He was also prohibited from drinking for one year.

He appeals against the sentence on the grounds that:

1. The sentence was excessive given the age and antecedents of the appellant;

2. The order of a fine when a sentence of imprisonment had been ordered was inappropriate; and

3. The prohibition on drinking was in excess of the powers of the magistrate.

It is unclear why, but there is no record of the proceedings in the Magistrate's Court and so the facts have been taken from the appellant's submissions which are not, it appears, challenged by the respondent.

In brief, the appellant was drinking with the owner of the property in which the trespass occurred. The property was let to another person but was unoccupied at the time and, at some stage, the owner told the appellant to enter the house and take some liquor that was there. The appellant did so.

He has numerous previous convictions starting in 1928 and continuing to 1986. There were then two convictions in 1991, and one each in 1993 and 1994. He has been sentenced to prison a number of times before but the last was in 1984.

He is now 33 years old and married with 4 children. He was a seaman but is now a fisherman.

As the result of the absence of a court record, there is no evidence before the court of the date the offence occurred. However, the last convictions of the appellant had been minor apart from common assault in 1993 and, whenever this offence occurred, the appellant has shown a distinct change in conduct from the early days of his offending.

In such a case, even if the court considers the proper penalty should be imprisonment, it should consider whether the accused should be given a chance to continue the improvement in his behaviour. This was a serious offence but committed in rather unusual circumstances. I consider an order of immediate imprisonment is less likely to be a deterrent from further offending than a suspended sentence. The latter would give the accused a chance to show that he had really changed his ways but in the certain knowledge that, if he fails, he will have to go to prison.

The magistrate had grounds for his decision to order imprisonment but I am satisfied it would have been appropriate in the circumstances of this case to suspend it.

The second ground of appeal relates to the order of a fine. When an accused is sentenced to an immediate sentence of imprisonment, it may still be appropriate to order a fine for other offences. However, it is not a proper sentence if it is likely to be impossible for the accused to pay it. To make such an order is effectively to order a longer term of imprisonment.

In the present case, the magistrate gave 2 weeks to pay. That time would inevitably expire whilst the appellant was serving the sentence ordered on the first charge. As a result, he would automatically have to serve the default term, which would extend his sentence by a further month.

I appreciate that such a fine is often paid by the accused man's family but it is not a proper basis of sentencing if that is the intention of the sentencing court.

Finally, the power to make a prohibition order under section 82 of the Alcoholic Drinks Act is very strictly defined. In this case the power arose under section 82 (2). The terms of that section are perfectly clear and the magistrate had no power to make such an order. It is hard to understand how it could have been thought to apply in this case.

The appeal is allowed. I understand that the appellant has actually been serving the sentence of imprisonment since it was ordered on 22 January 2003. It must be nearly completed and so I shall not order it be suspended. The sentence on the first charge is altered to whatever term is required to ensure the accused is released immediately. The fine on the second charge is quashed, as is the prohibition order.

The result is that the appellant is to be released today with no further penalty.

DATED this 9th day of April 2003

Gordon Ward
Chief Justice