Kalisi v R [2003] TVHC 1; Case No 06 of 2002 (17 February 2003)

IN THE HIGH COURT OF TUVALU
(CRIMINAL JURISDICTION)

CASE NO: 6/2002

MALUOFENUA KALISI

v

R

Hearing: 14 February 2003
Judgment: 17 February 2003

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

JUDGMENT

This an appeal against a sentence passed by the Resident Magistrate sitting in Funafuti on 4 December 2002. The appellant pleaded guilty to two counts of criminal trespass by night, contrary to section 182(2) of the Penal Code.

Both offences were on the same date. The appellant had been drinking and went into the garage of the Prime Minister and moved a motorcycle. He later told the police he was looking for some tools to use to repair his own motorcycle which had problems with its lights. Having failed to find anything suitable be moved next door to the grounds of the Governor General's house and was seen in a car, belonging to the Governor General's son, which was parked in the yard of the house. The police were called and the appellant arrested.

The appellant had one previous conviction in April 2001 for driving whist impaired by drink. The magistrate's notes show that the appellant, who was unrepresented, asked for leniency and pointed out that his mother was sick and that he had a loan with the bank.

He was then sentenced to 4 months imprisonment on each count consecutive giving a total sentence of 8 months. He now appeals on the ground that the sentence was excessive in view of his age and general antecedents.

The respondent points out that the appellant trespassed in the grounds of the two most prominent people in Tuvalu. This was a breach of security and justified a more condign sentence.

I do not consider such a sentence is appropriate in a case such as this. The court should only send young offenders to prison as a sentence of last resort. This appellant was only 19 years of age and he only had one previous conviction albeit for an offence which, like this case, was related to drink.

In determining the proper sentence, the magistrate needed to bear in mind that the appellant had pleaded guilty. Such a plea should always reduce the sentence because it is a clear indication of remorse and a willingness to accept responsibility for what he has done.

It was also a strong mitigating factor that the appellant had a full time job which he was likely to lose if sent to prison. That is a factor which makes the burden of imprisonment far heavier than it would be for an unemployed person.

If the magistrate thought that prison was likely to be the sentence, he should, where the offender was only 19 years old, have made proper inquiry into his circumstances; if necessary after obtaining a social welfare report. This was not done and the magistrate appears to have been unduly affected by the status of the people on whose property the trespass was committed.

I accept that it was a relevant fact in that his actions showed a disregard for the respect that should be accorded to such people. However, that is not a principal consideration when assessing the appropriate sentence.

I do not consider an immediate sentence of imprisonment was the proper penalty in this case. Even if it was, for a young first offender with a job and only one previous conviction of a different type of offence, a sentence of 4 months was too much. The offences in this case were also effectively part of the same overall trespass and it was wholly inappropriate to make the sentences consecutive.

I understand the appellant is serving his sentence. If he had not yet started it, I would have substituted a fine and, possibly, a suspended sentence. However, as he has already served some time in gaol, I shall quash the sentence and substitute one of two months imprisonment on each count concurrent to give a total of two months imprisonment which should mean he is due for immediate release.

Dated this 17^th day of February 2003

Gordon Ward
Chief Justice