1N THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 4/03

MAKAATA POU

v

R

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

Hearing: 8 April 2003
Judgment: 9 April 2003

JUDGMENT

This is an appeal against a sentence ordered by the Resident Magistrate on 7 February 2003. The appellant was charged with common nuisance and being drunk and disorderly and pleaded guilty to both offences.

The facts revealed that he had been very drunk and stood in the road with a stone in his hand threatening to throw it at passers-by. He had a large number of previous convictions starting in 1982 many of which related to drink. He had been sentenced to imprisonment in 1986 but all the rest of his previous offences had received fines or other non-custodial sentences.

The magistrate sentenced him to 4 months imprisonment on the first charge and 2 months consecutive on the second. He also ordered that he be prohibited from drinking for one year.

The grounds of appeal are that the sentence was manifestly excessive and wrong in principle because the facts did not justify a consecutive sentence. There is no appeal against the prohibition order.

I have stated before that, where an accused is charged with separate offences all of which arise from the same course of conduct, it is wholly inappropriate to sentence to consecutive terms of imprisonment.

This is just such a case. The conduct that gave rise to the charge of common nuisance was caused because the accused was drunk and the disorderly behaviour caused by his drunkenness was exactly the same. In those circumstances, the court should have determined the proper sentence for the whole of the conduct and passed that sentence for the principal offence. If it was considered appropriate to order imprisonment for the second offence, that sentence should have been made concurrent.

The appeal is allowed. The term of imprisonment for each offence is unchanged but the terms shall be served concurrently.

DATED this 9th day of April 2003

Gordon Ward
Chief Justice