IN THE SUPREME COURT OF TONGA
CRIMINAL APPEAL JURISDICTION
NUKU'ALOFA REGISTRY

CR. APP. NO.25/2001

BETWEEN:

SURYA NARAYAN
Appellant

AND:

POLICE
Respondent.

BEFORE THE HON. JUSTICE FORD.

Counsel: Mr Tu'utafaiva for the appellant and
Mr Sisifa for the respondent.

Date of hearing: 26 October 2001.
Date of judgment: 2 November 2001.

JUDGMENT

There are similarities between this case and another appeal which I heard at the same time (Cr App 22/01) and I propose to deliver simultaneous judgments.

The appellant, Surya Narayan, pleaded guilty in the Magistrates' Court in August this year to a charge of driving while under the influence of alcohol. He was convicted and sentenced to two months imprisonment and his driver's licence was suspended for 12 months. He appeals against the severity of the sentence.

The appellant was not represented by counsel in the Magistrates' Court and at the outset the magistrate, therefore, quite properly asked him if he wanted counsel because he was facing a serious offence. According to the transcript, the appellant declined the invitation. In hindsight, that was an unwise decision.

The magistrate then asked the appellant if he understood the summons and Tongan. The appellant replied, "Yes, I do understand but I cannot answer back in Tongan."

The police prosecutor then proceeded to outline the summary of facts. Significantly he said that a police officer followed the appellant's car as he was driving at Kolomotua and he noticed the vehicle swerving along the road. He said that it stopped and then took off again. The officer sounded his horn and the defendant stopped his vehicle and was then taken into custody.

After the summary of facts had been read out the magistrate again, quite properly, asked the defendant if he wanted to say anything. The defendant apologised and told the court that it would not happen again. The magistrate then gave his decision on sentencing. The court translation of the transcript reads as follows:

Court: "The offence that you have committed is a serious offence in the Traffic Act. The penalty for drunk driving could be a fine or 2 years imprisonment or both penalties could be handed down. It should be known by every driver that when you consume alcohol, you mustn't drive. It is clear that when you are drunk you do not think properly when driving. There are too many vehicles now in Tonga and lots of accidents occur caused by drunk people. In considering your sentence I also consider other innocent people who are also using public roads. It is clear from the doctor's examination that you were drunk. Prosecutor, where is the doctor's report?

Prosecutor: Here sir, and for the report to be submitted as exhibit 1.

Court: Yes, doctor's report to be exhibit 1. Your pleading guilty and with no previous convictions also is of benefit to you. But the doctor's report says that you were under the influence of alcohol and you can't control a motor vehicle properly if you're driving in that condition. And this is my thinking of your penalty, I think that a fine won't be sufficient for you as this sort of offence is to be stopped absolutely. I want to convey to the rest of the public that this sort of crime is a serious crime and also to protect the safety of the public who are using the public road. So the penalty will be two months imprisonment and your driver's licence will be suspended for 12 months as from today."

Mr Tu'utafaiva, for the appellant, made two principal submissions. First, he told the court that, despite what was in the transcript, the appellant did not, in fact, understand the Tongan language apart from the basic greetings. (Counsel seemed to be in agreement that the appellant's answers in the Magistrates' Court had most likely been given by him in English and then transcribed into the transcript in Tongan by the transcriber.) Nor, submitted Mr Tu'utafaiva, did the appellant understand the court procedures or the summary of facts read out by the police prosecutor. Counsel expanded on that submission by telling the court that the appellant's vehicle had not been followed by a police officer but he was travelling behind the police officer's car for a short distance after turning right at a T-intersection into the road that the police officer had been travelling in. After stopping his own car, the officer proceeded to wave down the appellant who at that stage was travelling behind him.

The inference this Court was asked to draw was that the summary of facts as outlined by the police prosecutor in the Magistrates' Court was not challenged by the appellant because he simply did not understand what the prosecutor had said.

Mr Tu'utafaiva submitted that the fact that the appellant could not understand what was going on is borne out by the fact that the official transcript shows that after the summary of facts had been read out, but before the magistrate gave his decision on sentencing, the magistrate had said:

"Could we adjourn for five minutes so that an interpreter can be brought here before I deliver my judgment so that the accused can fully understand as this is a serious offence."

The court then adjourned and an interpreter from the Supreme Court was brought in to interpret the magistrate's decision.

Mr Tu'utafaiva, with some emphasis, then posed the rhetorical question, if the defendant could understand what was going on, why was it necessary to bring in an official interpreter for the last part of the proceeding?

The second principle ground of appeal was the same as that advanced in the other case I have referred to, namely, Cr App. 22/01. Both cases had been heard by the same magistrate. Counsel acknowledged that the magistrate was quite within his rights to be concerned about the serious problem of drunken driving. His submission, however, in essence, was that the magistrate had gone too far in his efforts to get the message across to the public and he had erred in law in that he did not properly exercise his discretion when it came to sentencing but he appeared to have a fixed penalty of imprisonment in mind without giving proper consideration to the particular circumstances of the offending and the offender in any given case.

Counsel noted that the appellant in the present case was a 40 year-old married man with three children. He works as a motor mechanic for Cowley's Bakeries. He has been driving for some 22 years and this is his first offence.

Mr Tu'utafaiva sought to illustrate the point he was making regarding the alleged failure of the magistrate to exercise his discretion in a proper way by noting that the penalty of two months imprisonment and 12 months cancellation of licence imposed in the present case was identical to the penalty imposed on the offender in Cr App. 22/01 but in that case there had been an accident whereas no accident was involved in the present case.

One other point was developed in submissions. The record shows that halfway through his decision, the magistrate made a comment on the medical report and then called for the report to be formally produced but it was never made available to the appellant for his comments. The significance of the medical report was that it stated that the appellant had been given a "heel to toe" walking test but Mr Tu'utafaiva said that the appellant strongly denied ever having undergone such a test.

For the Crown, Mr Sisifa, responded to the various submissions advanced by counsel for the appellant and went on to submit that the magistrate was quite entitled to send out a message to the community at large so as to deter would-be offenders and in his submission the sentence imposed in the present case was not a fixed penalty nor was it excessive. Crown counsel submitted that the sentence was appropriate taking into account the seriousness of the offence and the need for a deterrent sentence.

Turning first to the ground of appeal relating to the language difficulties, it is an accepted fact that many defendants find the experience of having to appear in court quite daunting. Those not represented by counsel, in particular, can very easily simply be overwhelmed. Invariably they do not know the procedure of the court nor is it likely that they know their rights or what is expected of them. For this reason, as part of the overall exercise of administering justice, the magistrate faced with an unrepresented defendant must try to ensure, as far as possible, that the defendant's position is explained to him and that he is given any necessary assistance in putting forward his defence or plea in mitigation.

Potential language difficulties simply exacerbate the problem. As is stated by the learned authors of Rogers and Kellock's The Magistrate in the Commonwealth -- Basic Principles and Practice:

"Right from the start the magistrate must be satisfied that the defendant understands what is being said. A fair trial is not possible if the defendant or any witness does not fully understand the language in which it is being conducted. Inevitably interpretations take extra time but it may be necessary to avoid misunderstanding and possible injustice."

Given the nature of the submissions advanced before me on this aspect of the case, which would appear to be corroborated by the magistrate's call for an adjournment and an interpreter before passing sentence, I consider that an injustice may well have resulted from the appellant's inability to adequately understand the Tongan language and I therefore uphold this ground of appeal.

The second ground of appeal relates to the alleged failure of the magistrate to properly exercise his discretion upon sentencing. The fact that the sentence imposed in this case, where there was no accident involved, is identical to the sentence in the other case which came before me (Cr App. 22/01), which did involve an accident, does, to my mind, lend weight to counsel's submission that the magistrate failed to properly exercise his discretion in determining the punishment imposed.

While courts do from time to time justify sentences on grounds of general deterrence, the sentencer cannot, in such cases, impose an exemplary sentence that goes beyond the general level. In other words, if the magistrate concludes that the aspect of deterrence requires the imposition of a sentence of imprisonment, and there are no features which indicate that such a sentence is excessive, no question of wrong principle arises and the Supreme Court is not justified in interfering with the nature of the sentence, but if a custodial sentence is out of line with sentences imposed by other magistrates then the question does arise as to whether the sentencing magistrate has erred in principle. The position is summed up in the following passage from Rogers and Kellock:

"There are times when particular types of offences are being committed with alarming frequency and a magistrate may decide that a severe sentence has to be imposed in the interests of society as a whole . . . But a magistrate should avoid becoming identified for his personal opposition to a particular crime. For deterrent sentences to be effective and just there should be a broad measure of agreement amongst magistrates in the areas affected by the crimes, and the reasons behind their imposition should be generally understood." (page 16)

Accepting the correctness of the magistrate's perception of the general abhorrence in the community of drinking and driving, the offence of driving under the influence does not, in itself, automatically require the imposition of a custodial sentence. The situation in the Kingdom should follow the recognised common law sentencing principles in this area. The situation is correctly outlined by D.A. Thomas in Principles of Sentencing (2nd ed) p. 84:

"The cases do not suggest that a custodial sentence is automatically required whenever there is any evidence of the consumption of alcohol prior to the accident. The question is whether the driving generally fell into that category of selfish disregard for others or deliberate risk taking . . . and the presence of a high blood alcohol concentration is probably relevant primarily as an explanation of the offender's conduct or as a rebuttal of some alternative explanation of the accident."

After reviewing the reported decisions of R v Thomas (1973) 57 Cr App R 496; R v Newman [1976] Crim L. R. 265 and noting that the two decisions appeared to be in conflict with R v Tupa (1973) 58 Cr App 234, D. A. Thomas stated (p.192):

". . . it appears that a sentence of imprisonment is unlikely to be upheld unless there is a high blood alcohol level use combined with either a record of similar offences in the past, or especially dangerous driving, or both."

I consider these principles to correctly state the position relevant to Tonga although, as there is no blood testing regime in operation in the Kingdom, the high alcohol level would need to be determined in any given case by direct evidence of the driver's condition through eyewitnesses at the scene or a medical officer's certification following examination.

In each case, before deciding on the appropriate sentence, the magistrate will need to give proper consideration to the circumstances of the offending and the offender.

In general, however, for a first-time offender, unless the circumstances of the offending are exceptional in one or other of the ways I have touched upon, then a custodial sentence should not be imposed. Even in those rare cases where a custodial sentence would be appropriate, the magistrate will still need to go on and consider whether, in all the circumstances, a suspended sentence is called for.

For the reasons outlined, I consider that the sentence imposed in the present case is excessive. The appeal is allowed and the case is remitted back to the Magistrates' Court for re-sentencing before another magistrate.

NUKU'ALOFA: 2nd November, 2001

JUDGE