[1969-1982] NLR (D) 107

IN THE SUPREME COURT OF NAURU

Criminal Appeal No. 19 of 1980

Director of Public Prosecutions

v.

Dominic Fritz

23rd November, 1981

Sentence - matters which the Court can properly take into account in fixing sentence.

Appeal against sentence. The respondent pleaded guilty to driving a motor cycle whilst under the influence of intoxicating liquor. The magistrate, in fixing the sentence, took into account, a number of facts which he considered justified the imposition of a fine rather than a sentence of imprisonment.

Held: The magistrate properly took into account the fact that the respondent was in regular employment, that he had shown remorse and that he was a first offender. But the nature and circumstances of the offence necessitated the imposition of a sentence of imprisonment.

Appeal allowed. Sentence of one month's imprisonment imposed in place of fine of $50.

Appellant in person
Mrs M.L. Billeam for the respondent

Thompson CJ.

The respondent is just 21 years old. Three weeks before his 21st birthday he was caught driving a motor cycle in Ewa District at 6 a.m. while drunk. He was driving it in a zig-zag way. It was a 80 cc motor-cycle with small-diameter but broad-tread wheels and a small frame. He had no licence to drive a motor cycle; he had never held one. In the District Court he pleaded guilty to driving the motor cycle while under the influence of intoxicating liquor, to driving, it while not licensed to do so and to consuming alcohol while under the age of 21. For the first offence he was fined $50; for the second $10 and for the third $10.

The learned resident magistrate gave several reasons for his decision to impose a fine for the first offence instead of imposing a sentence of imprisonment. These were:-

(1) that the respondent was a first offender, except for an earlier conviction for consuming alcohol under the age of 21;

(2) that he was not involved in any accident and caused no damage or injury;

(3) that he had pleaded guilty and not set up a false and concocted defence, and had shown a remorseful attitude;

(4) that he was in regular employment as a labourer.

He gave these as reasons for adopting a lenient course in respect of all three offences.

The Director of Public Prosecutions has submitted that a sentence of imprisonment should have been imposed for the first offence and larger fines for the other two offences. He pointed out that the learned resident magistrate had apparently failed to take into consideration, as aggravating the first offence by increasing the danger to the public, the fact that the respondent had never held a driving licence or satisfied any authority as to his competence to drive motor cycles. He criticised the fourth reason given by the learned resident magistrate as improper differentiation between persons committing similar offences. Likewise he criticised the third reason given by the learned magistrate for his leniency, on the ground that by implication it meant that persons pleading not guilty would suffer heavier sentences for similar offences than those pleading guilty. Mrs Billeam, who represented the respondent, supported the Director's comments on that third reason although, of course, arguing that the circumstances of the, offence and of the offence and of the offender justified the exceptionally lenient course taken. Those circumstances were the time, the smallest of the motor-cycle, the respondent’s previous good character and the fact the he was in regular employment.

I should, I think, deal first with the Director’s criticism of the learned resident magistrate’s third and fourth reasons for his leniency. When a person commits an offence, he renders himself liable to the maximum sentence which the Courts can impose for it. Some offences are less serious than others and sentences ranging from the most lenient to the maximum possible are prima facie appropriate according to the serious-ness or otherwise of the particular offences. In that way the Courts assess what is the maximum sentence which might properly be imposed on an offender for a particular offence. But then the Courts have to consider the personal circumstances of the particular offender in order to be able to decide whether that sentence or a lesser sentence is appropriate. By "appropriate" I mean just to the offender and to society and most likely to serve the purpose or purposes for which it is imposed. There are many factors relating to offenders personally which may be relevant to sentence in particular cases. One of those factors is the fact that the offender is in regular employment, will lose his job if he is sent to prison and will be unemployed when he comes out. He will suffer worse consequences by being imprisoned than a person who is unemployed. It is not in every case that this factor weighs sufficiently to justify not imposing a sentence of imprisonment which otherwise would be imposed. But it is proper for the Courts to take it into consideration and to give it such weight as they think appropriate, notwithstanding that the effect will be that a fine is imposed for an offence as serious as a similar one for which another person has been sent to prison. So the learned resident magistrate did not err in taking that factor into account in the present case.

With regard to the third reason given by the learned resident magistrate for leniency, showing remorse and contrition is a matter which may well distinguish one offender from another and justify a disparity in the sentences imposed on\ them. One of the signs of contrition and remorse is a readiness to own up to the offence and to take the consequences of doing so. Conversely it is impossible for a person to deny that he did something and to tell lies about it, and to be caught red-handed may have no hope of avoiding conviction however hard he lies; his plea of guilty is an acceptance of reality rather than contrition. But, where a Court is of the opinion that .a person whom it has convicted is contrite and remorseful, that is a personal circumstance relating to that particular person which may justify the imposition of a more lenient sentence than the sentence imposed for a similarly serious offence on another person who is not contrite or remorseful. So again, if the learned resident magistrate had reason to believe that the respondent was contrite and remorseful, he did not err in taking that into account in deciding what sentence was appropriate for him.

The circumstances of the offence of riding the motor cycle while under the influence of intoxicating liquor were such that, even allowing for the mitigating factors relating to the respondent personally, a fine was not an appropriate sentence. An appellate court ought not to interfere with the exercise of sentencing discretion at first instance unless the sentence is wrong in principle. It is with reluctance, there-fore, that I have come to the conclusion that the sentence of a fine in respect of the first count must be set aside and a sentence of imprisonment substituted for it. The sentences imposed for the other two offences, however, will not be altered.

The appeal is allowed in respect of the first count. The sentence of a fine of $5,) is set aside and a sentence of one month's imprisonment is substituted for it. The respondent is also disqualified from obtaining a driving licence for six months.