IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU'ALOFA REGISTRY

NO. AM.3/03

BETWEEN:

LOPETI VAEA
Appellant

AND:

POLICE
Respondent

BEFORE THE HON JUSTICE FORD

COUNSEL: Mr 'Etika for the appellant and
Mr Sisifa for the respondent.

Date of hearing: 1 April 2003.
Date of judgment: 1 April 2003.

ORAL JUDGMENT

The appellant has appealed to this Court against penalties imposed in the Magistrates' Court at Mua on 6 December 2002. The appellant was sentenced to three months imprisonment and had his licence suspended for one year on a charge of driving under the influence of alcohol, contrary to section 25 (2) (b) of the Traffic Act (CAP. 156). At the same time, he was sentenced to one months imprisonment for careless driving, contrary to section 25 (1) of the Traffic Act. The sentences were ordered to be concurrent.

The appellant was not represented by counsel in the Magistrates' Court. He pleaded guilty at the outset. He had no previous convictions of any kind. In this Court he is represented by Mr 'Etika who alleges that the penalty on both charges was excessive and, in any event, the magistrate should have given consideration to a suspended sentence.

On the driving under the influence charge, the appellant's drivers licence was suspended for one year. The Act does not provide for "suspension" of a drivers licence. Section 29 (1) requires the court to "cancel" a defendant's motor drivers licence and disqualify him from obtaining another for such period between one and three years, as the court thinks fit.

There is a difference between a cancellation and a suspension. A cancellation annuls the licence and puts an end to it unless the cancellation order itself is later revoked pursuant to section 29(5) of the Act. A "suspension" on the other hand, connotes something less permanent. A court imposing a sentence laid down in legislation must follow the terminology prescribed. The court is not empowered to suspend a defendant's licence. It can only make an order cancelling the licence and disqualifying the individual from obtaining a new replacement licence for the duration of the period specified. Once cancelled, the original licence ceases to exist.

Counsel for the appellant stressed that his client has an unblemished record; that there was no evidence of an accident involving injury to any person and there was no evidence before the magistrate about the extent of the damage, if any, caused to the other vehicle. All one can say from the summary of facts is that the vehicle being driven by the appellant collided with the rear of the car travelling ahead of it but it appears that both vehicles were able to continue on their way and the only damage identified in the summary of facts is that the number plate fell off from the front of the appellant's car and was later found at the scene.

Mr 'Etika also submitted that the magistrate erred in having regard to the fact that the police summary of facts stated that the appellant had been partying all night and then had a further eight beers during the day. The accident did not occur until later in the afternoon. The point counsel made is that there was no confession by the appellant or other evidence to confirm these matters. I reject this submission, however, because the prosecutor read out the summary of facts to the court and the appellant was then invited to address the court. With one exception which I will refer to shortly, the appellant did not dispute any of the facts stated but he apologised for what had happened. It is too late now for counsel to try and dispute the facts stated in the police summary.

Mr 'Etika also submitted that the magistrate placed undue weight on the fact that the appellant was employed as a driver at the Chinese Embassy and, at the time of the accident, he was on his way to the airport to pick up the ambassador. Crown counsel submitted that the magistrate was entitled to take that factor into account. I accept that proposition but phrases in the magistrate's decision such as, you are "a driver to a very important person" and it is an important fact to the court "that these people are diplomatic people and their lives are in your hands when you are driving" may indicate that, in the circumstances of this case, too much emphasis was placed on the point because the ambassador was not in the vehicle.

In Prescott v Police (unreported) No Cr App. 21/01, (Judgment dated 5 December 2001) I set out certain sentencing principles which might be helpful to magistrates in cases of this nature although I accept that they can only be regarded as guidelines at most because what is an appropriate sentence will vary from case to case. The passage I refer to reads:

"In general, unless the circumstances are exceptional in someway, such as where there is an accident involving death or serious injury for example, a custodial sentence is unlikely to be upheld in respect of a driving under the influence charge, unless the circumstances of the offending reveal a high level of intoxication combined with either a record of similar offending in the past or especially dangerous driving, or both. Even in those, one would hope, relatively rare cases where a custodial sentence for a first-time offender would be appropriate, the magistrate will still need to consider whether, in all the circumstances, a suspended sentence is called for."

The evidence in the present case does reveal a high level of intoxication. The appellant appears to have been partying all night and then in the morning he drove out to the airport to collect the ambassador. When he found out that the ambassador's flight would not be arriving until later in the afternoon, he drove back into town and drank a further eight beers. Not surprisingly, he lost his job over the incident. The medical report produced as an exhibit shows that the appellant was drunk.

There is an added factor. The police summary of facts stated that the appellant did not report the accident to the police. The appellant, however, took issue with that statement and he told the magistrate that after the accident he was afraid but he drove back to the office and telephoned the police. The magistrate, however, accepted the police version and held in his decision that the appellant did not report the matter to the police. That is unfair. Once the matter was disputed, the magistrate should have called on the prosecutor to call evidence on the point or he should have accepted the appellant's denial. The magistrate obviously placed some weight on the failure of the accused to report the matter to the police because he specifically mentions this point in his judgment. Principally for this reason, I find that the sentence of three months imprisonment is excessive and I propose to reduce the term to two months imprisonment. In addition, I impose a fine on the driving under the influence charge of $400 to be paid in 14 days, failing which the appellant will be imprisoned for three weeks. I do not propose to interfere with the sentence on the careless driving charge.

Counsel for the appellant submitted that the magistrate should have considered a suspended sentence. Having decided on a prison sentence, the magistrate should have then dealt with the question of whether or not it was appropriate to suspend the sentence in a whole or in part. He did not do that and the matter was not raised by the appellant, no doubt because he was not represented by counsel. The appellant is still only a young man but I agree with counsel that it is most unlikely that he will re-offended in future. He has an unblemished record and he co-operated with the authorities. On balance, I consider that the plea for a suspended sentence is appropriate and I suspend the whole term of the imprisonment sentence for a term of two years from today's date.

Finally, the sentence in the court below is further varied by deleting the reference to a suspension of the appellant's drivers licence and substituting an order that the appellant's motor drivers licence is cancelled and he is disqualified from obtaining another drivers licence for a period of 12 months from today's date.

Pursuant to section 29(4) of the Traffic Act, a copy of this order is to be delivered to the Principal Licensing Authority.

NUKU'ALOFA: 1st April, 2003

JUDGE