Moimoi v Police [2001] TOSC 41; CR APP 024 2001 (29 October 2001)

IN THE SUPREME COURT OF TONGA
CRIMINAL APPEAL JURISDICTION
NUKU'ALOFA REGISTRY

NO.CR.APP.24/01

BETWEEN:

SIONE MOIMOI
Appellant

AND:

POLICE
Respondent

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Fifita for the appellant and
Mr Pouono for the Crown

Date of hearing: 25^th October 2001.
Date of judgment: 29^th October 2001.

JUDGMENT

Sione Moimoi, the appellant, pleaded guilty in the Magistrates' Court to a charge of theft of a guitar valued at $150. He was sentenced to three months imprisonment. He appealed to this Court on a number of grounds but at the hearing his counsel confined the appeal to one ground only, namely, that the learned magistrate had erred in not allowing the appellant to mitigate his sentence.

The appellant was not represented by counsel at the Magistrates' Court hearing. The record of the proceedings shows that, after the guilty plea was entered, the police prosecutor addressed the court and then referred to a previous conviction which the appellant had dating back to September 1995. The learned Magistrate then asked the appellant if the record of the previous conviction was true to which he responded, "Yes, sir". The magistrate then immediately proceeded to impose the sentence of three months imprisonment.

No opportunity was given to the accused to say anything in mitigation.

Mr Fifita outlined in this Court the nature of the submissions his client would have made to the magistrate had he been given the opportunity and they are quite compelling. The complainant, who is a friend of the appellant's, had apparently also being in court on the day of the hearing and he had been prepared to confirm the truth of the appellant's submissions in mitigation. Quite regardless, however, of the strength of any submissions in mitigation, it is axiomatic that the appellant should have been given an opportunity of addressing the court in mitigation before sentence was imposed. That is a fundamental principle of natural justice which in this day and age should not have to be spelt out.

To his credit, Crown counsel did not try to justify the omission on the part of the magistrate but he submitted that it might be of assistance in future cases if this decision could be handed down in writing.

Mr Pouono submitted, by consent, that, upon the appeal being allowed, I should refer the case back to the Magistrates' Court for the appellant to be re-sentenced before another magistrate. I am happy to follow that course.

The appeal is, therefore, allowed. The sentence of three months imprisonment is hereby quashed and the case is referred back to the Magistrates' Court where the appellant is to be sentenced again before a different magistrate.

NUKU'ALOFA: 29^th October, 2001.

JUDGE