IN THE SUPREME COURT OF TONGA

Vaiangina

v

Police

Supreme Court, Nuku'alofa 
Ward CJ 
C 14/00 

4, 7 August 2000; 7 August 2000 

Criminal procedure — change of plea — not allowed 
Criminal procedure — sentence — imprisonment should be used in default of payment rather than as substitute 

The appellant appeared before the Magistrates' Court on 31 May 2000 and pleaded guilty to a single charge of drunken driving contrary to section 25(2)(b) of the Traffic Act (Cap 156). He was sentenced the same day to imprisonment for one month and disqualified from driving for 9 months. He appealed against conviction and sentence on the grounds that he was not given a chance to change his plea from guilty to not guilty, that he did not have a lawyer, and that the sentence was too harsh. 

Held: 

1. There was nothing to suggest that he pleaded guilty without understanding the nature of the charge or without intending to admit the charge. The court would not allow a change of plea just because the accused regretted the sentence passed or that he now felt he had a defence. The appeal against conviction was dismissed. 

2. The magistrate must first decide whether it was appropriate to order a fine or imprisonment or both. It was clear he reached the decision that the appropriate penalty was a fine of $250. When the appellant said that he did not have the money at court to pay the fine the magistrate should have fixed a period of imprisonment in default of payment instead of substituting an order of imprisonment. 

3. The appeal against sentence was allowed. The sentence of one month imprisonment was quashed and a fine of $250.00 was substituted. The appellant had 28 days to pay and was to go to prison for one month in default of payment 

Statute considered: 
Traffic Act (Cap 156) 

Counsel for appellant: Mrs Vaihu 
Counsel for respondent: Mr Pouono 

Judgment 

This is an appeal against conviction and sentence. I have already dismissed the appeal against conviction and allowed the appeal against sentence. I have given brief reasons but said I would give a written judgment and I now do so. 

The appellant appeared before the Magistrates' Court on 31 May 2000 and pleaded guilty to a single charge of drunken driving contrary to section 25(2)(b). He was sentenced the same day to imprisonment for one month and disqualified from driving for 9 months. 

He now appeals on the grounds: 

"1. A request for a change of plea from guilty to not guilty and also a chance for the accused to have a lawyer for he did not have a chance for a lawyer to advise him legally. 

2. The judgment given is too much, not married, with no job plus no former convictions." 

The first ground here is that he should be allowed to change his plea. The authorities on this are clear and numerous. Such a change will not be allowed unless the plea was equivocal or the appellant demonstrates to the court that he did not understand the nature of the charge or that he was guilty of it. In order to ascertain any possible equivocation, the appellate court will only consider the record of what happened in the lower court. 

The record in the present case shows that the charge was read to him and he was asked if he wanted a lawyer. He replied he did not and was guilty. He was then asked formally what was his plea to the charge and replied again, "Guilty". 

The prosecution facts were outlined and he disputed the fact of having been taken to hospital as was stated by the prosecutor. It was then pointed out by the magistrate that there was a letter from the doctor who examined the accused. The accused then apologised and repeated he was guilty. 

That doctor's report states succinctly that, at 11.00am on 1 January 2000, the appellant smelled of liquor was unable to walk in a straight line and was under the influence of liquor. 

Mrs Vaihu tells the court that he had been drinking the night before but was not drunk when arrested and was never taken to see a doctor. He pleaded guilty because he did not realise it was a serious offence and wanted to get it over and done with. 

I do not accept there is anything to suggest that he pleaded guilty without understanding the nature of the charge or without intending to admit the charge. Neither is there anything on the record to suggest the plea was in any way equivocal. The court will not allow a change of plea just because the accused regrets the sentence passed or even that he now feels he has a defence. Similarly, there is no reason why he should now have a lawyer when he specifically chose to go ahead without one at the lower court. There is no reason for this court to interfere with the plea in the court below and the appeal against conviction is dismissed. 

When the magistrate passed to consider sentence, the record shows the following: 

"Court: This is a very serious crime that you have committed in regard to travelling on a public road. There is evidence here showing that you were so drunk that you did not know when you were taken to the hospital for tests. This crime, either imprisonment or pay money. Do you have $250.00? 

Accused: No, sir. 

Court: You will be in prison for one month. 

Accused: Yes, sir. 

Court: Ruling for you to work in prison for one month. Suspension of your driving licence for nine months…" 

The penalty for an offence under section 25(2)(b) is a fine not exceeding $500.00 or imprisonment not exceeding 2 years or both. 

In such a case the magistrate must first decide whether it is appropriate to order a fine or imprisonment or both. It is clear he reached the decision that the appropriate penalty was a fine of $250.00. Having done so he was right to ask the appellant whether he had the money in order to decide whether to give time to pay and, if so, how long. 

The appellant did not have the money at court and so the magistrate should have fixed a period of imprisonment in default of payment. This is the case even if the magistrate did not feel it was appropriate to allow time to pay. However, what he did was to substitute an order of imprisonment and that was wrong. 

The appeal against sentence is allowed. The sentence of one month imprisonment is quashed and a fine of $250.00 is substituted. The appellant has 28 days to pay and will go to prison for one month in default of payment.