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Uasi v R [2023] TOSC 11; AM 12 of 2022 (14 February 2023)
IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU’ALOFA REGISTRY
AM 12 of 2022
(CR 926 of 2022)
BETWEEN :
‘Alifeleti Uasi
Appellant
AND :
Rex
Accused
JUDGMENT
Before: Justice P. Tupou KC
Appearances: Mrs. F. Vaihu for the Appellant
Mrs. Tupou Vainikolo for the Respondent
Hearing: 9 February, 2023
Judgment: 14 February, 2023
- On 18 October, 2022, Magistrate Pahulu-Kuli convicted and sentenced the appellant to 1-month imprisonment for causing by other means
disorderly behaviour contrary to s.3(g) of the Order in Public Places Act.
- On the 19 October, 2022 the appellant lodged this appeal contending that the conviction and sentence should be quashed because;
- As against Conviction he says that:
- he did not say the words alleged;
- he was not represented by counsel at the hearing;
- one of his witnesses could not be there on time and he could seek an adjournment;
- on the relevant day the complainant’s son called him and then proceeded to attack him with a cane knife and that matter is subject
to prosecution;
- the Learned Magistrate should not have reactivated the appellant’s sentences in CR 870-871 of 2022 because s. 3(g) of the said
Act does not carry a straight imprisonment sentence and this offending occurred on 6 August, 2022 while the sentencing in the previous
cases occurred on 8 August, 2022;
- the offendings involve the same complainant and because there was bad blood in the family, the court should have explored mitigation;
- As to sentencing the appellant contended that;
- The sentence was manifestly excessive in view of the circumstances of the case;
- the learned Magistrate should have factored in the appellant’s marriage, child, age, remorse and possible rehabilitation as
mitigating factors on sentencing; and
- in view of the attack and injury sustained by the complainant at the same incident, other options such as a fine, probation and/or
reprimand was open to the Magistrate.
- The Crown opposed the appeal against conviction but conceded on;
- Re- activating the suspended sentence in CR 870-871 of 2021 and submits that I re-sentence the Appellant in this case to a fine of
$200 to be paid within 2 weeks or in default 4 weeks imprisonment;
- Custodial sentence imposed and proposes that sentence is substituted by a fine of $400 to be paid within 2 weeks or in default, 4
weeks imprisonment.
- In response, Mrs. Vaihu withdrew the appeal against conviction and submitted a reduction of the fines by 50%.
- Mrs. Vainikolo submitted that;
- the proposed fines were appropriate under the circumstances; and
- I should re-sentence the appellant in CR 870-871 of 2021 and substitute the custodial sentence with a fine for $200. No authority
was provided on whether or not I have the power to re-sentence a matter not on appeal before me. I decline to do so on that basis.
- Accordingly, the following orders are made:
- The appeal against conviction is withdrawn and the conviction stands.
- The appeal against activating the suspended sentence in CR870-871 of 2021 and sentence in this present case is allowed.
- The orders of Magistrate Pahulu-Kuli are quashed.
- Having regard to the maximum statutory penalty of $1,000, the circumstances of the offending and the offender, the fact that the defendant
is employed and earning $200 -$300 per week, I make the following orders in substitution:
- the re-activation of the suspended sentence in CR 870-871 is cancelled;
- the appellant is fined $400 to be paid within 2 weeks or in default 4 weeks imprisonment.
P. Tupou KC
J U D G E
Nuku’alofa: 14 February 2023
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URL: http://www.paclii.org/to/cases/TOSC/2023/11.html