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

CR. APP. NO. 22/2001

BETWEEN:

'OKUSITINO MATEKUOLAVA
Appellant

AND:

REX
Respondent

BEFORE THE HON. JUSTICE FORD

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

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

JUDGMENT

In July this year the appellant, 'Okusitino Matekuolava, pleaded guilty in the Magistrates' Court to charges of careless driving and driving under the influence of alcohol. He was fined $50 on the careless use charge and on the driving under the influence charge he was sentenced to two months imprisonment and his driving licence was suspended for 12 months. He appealed to this Court against the severity of the latter sentence only.

The thrust of counsel's principle submission in support of the appeal was that the magistrate had his mind fixed on a sentence of imprisonment for all drunk drivers without giving any weight to the circumstances of the offending and of the offender.

Counsel indicated that this was one of three appeals on similar grounds against decisions of the same learned magistrate. In developing his submission, Mr Tu'utafaiva conceded that the magistrate was correct in holding the view that drinking and driving should be stopped and he also accepted that the magistrate was correct in taking into account in sentencing the safety of other road users but, as counsel put it, "where the magistrate goes wrong is in apparently disregarding the circumstances surrounding the offence and the offender". Counsel said that such an approach was contrary to basic sentencing principles.

When the case was called in the Magistrates' Court the appellant had pleaded not guilty. He was proposing to defend both charges. At that stage he was represented by a different counsel. The case began with the police prosecutor calling his first witness, the health officer who had examined the appellant. The witness said that the appellant's speech was "not too clear", he could smell alcohol and he could tell from the way the appellant walked that "his body was unbalanced". He concluded, "he can't control a vehicle if he drives". The health officer was not cross-examined but at the conclusion of his evidence in chief, counsel for the appellant addressed the court as follows:

"Sir, sorry but we have changed our plea to guilty. The accused thought that the doctor told him on this night that he was not drunk, so we decided to change our plea. So, we only ask for a small penalty or fine. The accused has no previous convictions and also we have changed our plea to guilty."

The magistrate then passed on immediately to pronounce his decision on sentencing. According to the court translated transcript, he said:

"What you have been charged with are serious offences under the Traffic Act. Careless driving is not as serious as committing drunken driving. The penalty for both offences can be a fine and also imprisonment. It is obvious that the cause of your careless driving is because you were drunk at the time. The fine for drunk driving is $500 and two years imprisonment. It's clear from the doctor's report that you could not control a vehicle at the time because you were drunk. In Tonga these days there are lots of vehicles and we have to be very careful not only for our life but also for the lives of others using the public roads. Due to the fact that you were drunk and you cannot control your vehicle therefore crashing to the other vehicle causing this accident. I have taken note of the fact that you have no previous convictions and also pleaded guilty but I have to take care of other public road users and their lives."

The magistrate then proceeded to impose the penalty already described.

Mr Tu'utafaiva was critical of the fact that following the entry of the guilty plea, the prosecutor did not read out any summary of facts to the magistrate and no oral evidence was before the court about the incident that had given rise to the charges. That was the essence of his other ground of appeal.

Counsel told this Court that on the afternoon in question the appellant had been to the beach with his partner and two children and while at the beach he had consumed six bottles of Royal beer. There is no evidence as to how long the family had been at the beach but the accident happened on his way home at about 7 p.m. that evening. Counsel said that the appellant was driving south along Taufa'ahau road approaching the intersection with Old Pea road and he was about to turn right into Old Pea road. He could see two vehicles travelling towards him heading in a northerly direction along Taufa'ahau road and he thought that he saw the indicator lights on the leading vehicle signal an intention to turn to its left to go down Old Pea road which he also was about to turn into. The appellant believed, therefore, that he had the right of way and proceeded to turn across Taufa'ahau road but the other vehicle collided with the passenger side of his vehicle. After the accident the appellant realised that the blinking indicator lights which he had seen had actually been coming from the second car, not from the leading vehicle -- hence his guilty plea to the careless driving charge.

Mr Tu'utafaiva said that the appellant was 57 years of age and he had been driving for 40 years without any previous offences. He was a delivery van driver by occupation, delivering eggs for Vete Poultry. Counsel submitted that, given his unblemished record and lengthy period of driving, the appropriate penalty should have been cancellation of his licence and a fine or, in the alternative, a suspended prison sentence.

Miss Tupou, for the Crown, said that the sentence imposed of two months imprisonment was appropriate and not too harsh. She told the court that to her knowledge, apart from cancellation of one's driver's licence, there was no "typical sentence" in the Magistrate's Court for driving under the influence. Miss Tupou acknowledged that no summary of facts had been read to the court but she submitted that the wording of the summons was quite detailed and the evidence of the health officer together with his medical report showed that the appellant was unable to control his vehicle.

Crown counsel also submitted that if there was insufficient information before the court then there was an onus on counsel for the appellant to proffer an explanation as part of his plea in mitigation.

Mr Tu'utafaiva accepted that counsel should have drawn the various matters in mitigation to the magistrate's attention but his primary submission was that in the end result it would not have made any difference what was said, because the magistrate's mind was fixed on a sentence of imprisonment regardless of the circumstances of the offending and the circumstances of the offender.

In relation to the absence of any summary of facts, Miss Tupou is quite right to stress that it was up to counsel to address the magistrate on all matters that could properly be put forward in mitigation. But there is an important issue that arises in this case which goes beyond the mere mitigation plea. It is the conclusion by the magistrate that the appellant was so drunk that he was unable to control his vehicle and this caused the collision.

The only evidence before the court that the appellant could not control his vehicle came from the health officer who was not a witness to the accident. There were no eyewitnesses to say that the vehicle was swerving over the road or being driven out of control. If the account of the circumstances leading up to the accident outlined in this Court by counsel for the appellant is correct then it would seem that the real cause of the accident was most likely the appellant's carelessness in concluding that the flashing indicator lights were coming from the leading vehicle rather than from the second vehicle.

By pleading guilty, an offender admits that he committed the offence but he does not necessarily concede that the prosecution case against him is correct in its entirety. He may deny that the facts are as grave as presented by the prosecution.

Having heard part of the evidence before the appellant changed his mind and entered the guilty plea, the magistrate should not only have called for a summary of facts but he should have given the appellant the opportunity to give evidence himself then the court could decide what version of the facts it would accept for sentencing purposes and the appellant, in turn, would know exactly what he was being punished for.

The principle is summed up in the following passage from Criminal Litigation & Sentencing (1999/2000) para 14.2.2:

"Occasionally, a defendant will decide to change his plea halfway through the trial, after at least some evidence has been given for the prosecution. In those circumstances, the judge should hear evidence from the defendant and then decide upon the version of facts upon which he or she is going to sentence, forming his or her view on the whole of the evidence which was given."

Likewise, as stated in the commentary to R v Archer [1994] Crim L.R. p.80:

"In a case where the plea is taken, whether to the charge as laid in the indictment or to a lesser charge, after evidence has been given for the prosecution, the judge will have heard only part of the case and there is a risk that the factual basis for sentence will be determined without hearing the other side of the story. In such circumstances, it has been held that the sentencer should hear the evidence of the defendant before deciding what version of the facts will be adopted for the purposes of sentence."

Because that procedure was not followed in the present case, there is a real risk, particularly in the absence of a summary of facts, that the magistrate has proceeded to impose sentence upon the possible false premise that the accident happened because the appellant's car was being driven out of control. The manner of driving should have been an important factor in determining the appropriate sentence.

That is enough for me to dispose of this appeal but in a judgment in another case (Cr App 75/01) which will be delivered at the same time as this decision, I deal with the other substantive argument put forward by counsel for the appellant relating to the alleged failure of the magistrate to exercise his discretion in accordance with recognised sentencing principles. The conclusions I reach in that judgment have equal application to the facts of the present case and, if it had been necessary, I would have upheld the present appeal for those same reasons.

In summary, I suspect that a miscarriage of justice may well have resulted in this case from the failure of the learned magistrate to follow the recognised procedure referred to in the authorities cited above and for that reason I now quash the sentence appealed against and refer the case back to the Magistrates' Court for re-sentencing before another magistrate.

NUKU'ALOFA: 2nd November, 2001.

JUDGE