Viliamu v R [2003] TVHC 9; Case No 02 of 2003 (9 April 2003)

IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 2/2003

LOGOLOGO VILIAMU

v

R

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

Hearing: 8 April 2003
Judgment: 9 April 2003

JUDGMENT

The appellant appeared before the Resident Magistrate on 7 February 2003 and pleaded guilty to a single charge of breaching the conditions of a provisional driving licence, contrary to section 14 (3) of the Traffic Act.

He was ordered to pay a fine of $40.00 with 3 weeks to pay or 4 months imprisonment in default of payment and was disqualified from driving for one year.

He appeals against that sentence on the ground that the sentence is manifestly excessive in view of the circumstances of the offence and the fact that the appellant was a first time offender.

I accept that the order of disqualification from driving was inappropriate for are offence of this nature. The appellant had a provisional licence so it is very different from a case of driving without a licence at all. What he did was to fail to display L-plates on his motorcycle. For a first offender in such a case, disqualification is totally inappropriate.

As far as the fine is concerned, it appears that, at the hearing, the prosecution told the court that the accused had no previous convictions. The magistrate then commented that he believed the accused had previous convictions. It is suggested that he must have acted on that because whilst others facing similar charges that same day were fined $20 and were not disqualified, this accused was fined a higher sum and disqualified.

Where such an allegation is part of the basis of the appeal, the appellant should supply the court with evidence of the sentences passed that day. However, it appears that counsel for the respondent does not challenge that fact and so I shall act on it. In future, I shall not unless I have evidence.

It is up to the prosecution to put accurate information about previous convictions before the court. If it fails to do so, there is likely to be an inappropriate sentence passed. Any magistrate is likely to have accused appearing before him whom he knows from previous cases. His duty is to put any prior information out of his mind when hearing any subsequent case unless it is part of the evidence in front of him at the time.

If the magistrate is not able to do that, the accused cannot have a fair trial. Where, for example, the accused has pleaded not guilty but the magistrate knows he has been convicted before, the magistrate must make the conscious decision to disregard that fact and treat the accused as a person whose previous character he does not know. To do otherwise would mean that accused is disadvantaged and the effective burden of proof on the prosecution is reduced.

It is similar in a plea of guilty. The magistrate must decide the proper sentence on the information he has before him in that case. If, as here, that magistrate believes the accused has other convictions, he is entitled to ask the prosecution to check and give him accurate information. If necessary he should adjourn the case to allow that to be done. If the prosecutor declines to check the antecedents then the magistrate is bound to accept them as presented and to treat the accused as a first offender. Similarly if the prosecutor tells the court, after checking the records, that the accused has no previous convictions, the magistrate is again bound to act on that even if he is sure that information is incorrect.

In the present case, I have no idea whether the antecedents were correct or not and it is not a matter for me to ask. The fact is that the only information the court had was that the accused had no previous convictions and yet he was sentenced on a different basis to similar cases.

The appeal is allowed. The sentence is quashed and a fine of $20.00 substituted with 3 weeks to pay if it has not already been paid and 1 month imprisonment in default of payment. There is no order of disqualification.

I finally add one matter. The default term for the $40 fine was ordered to be 4 months imprisonment. That was an incorrect order.

Section 30 of the Penal Code sets out the maximum default terms that may be ordered for failure to pay a fine. It provides, as far as relevant for this case:

"Exceeding $20 but not exceeding $40: 2 months

Exceeding $40 but not exceeding $50: 3 months"

Clearly a fine of $40 falls into the first of those two provisions. It exceeds $20 but does not exceed $40 and so the maximum default term the Court should have ordered is 2 months. It is extremely important that such terms are within the law because excessive orders will mean that a defaulting accused will serve an unlawful term in prison.

DATED this on the 9^th day of April 2003

Gordon Ward
Chief Justice