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

AM 12 of 2022
(CR 926 of 2022)

BETWEEN	:		

‘Alifeleti Uasi
Appellant

AND		:		

Rex
Accused

JUDGMENT

Before: 		Justice P. Tupou KC
Appearances: 	Mrs. F. Vaihu for the Appellant
		   	Mrs. Tupou Vainikolo for the Respondent
Hearing:		9 February, 2023
Judgment: 		14 February, 2023

1.	On 18 October, 2022, Magistrate Pahulu-Kuli convicted and sentenced the appellant to 1-month imprisonment for causing by other means disorderly behaviour contrary to s.3(g) of the Order in Public Places Act. 

2.	On the 19 October, 2022 the appellant lodged this appeal contending that the conviction and sentence should be quashed because;

a)	As against Conviction he says that:

i)	he did not say the words alleged;
ii)	he was not represented by counsel at the hearing;
iii)	one of his witnesses could not be there on time and he could seek an adjournment;
iv)	on the relevant day the complainant’s son called him and then proceeded to attack him with a cane knife and that matter is subject to prosecution;
v)	the Learned Magistrate should not have reactivated the appellant’s sentences in CR 870-871 of 2022 because s. 3(g) of the said Act does not carry a straight imprisonment sentence and this offending occurred on 6 August, 2022 while the sentencing in the previous cases occurred on 8 August, 2022;
vi)	the offendings involve the same complainant and because there was bad blood in the family, the court should have explored mitigation;
b)	As to sentencing the appellant contended that;

i)	The sentence was manifestly excessive in view of the circumstances of the case;
ii)	the learned Magistrate should have factored in the appellant’s marriage, child, age, remorse and possible rehabilitation as mitigating factors on sentencing; and 
iii)	in view of the attack and injury sustained by the complainant at the same incident, other options such as a fine, probation and/or reprimand was open to the Magistrate.

3.	The Crown opposed the appeal against conviction but conceded on;

a)	Re- activating the suspended sentence in CR 870-871 of 2021 and submits that I re-sentence the Appellant in this case to a fine of $200 to be paid within 2 weeks or in default 4 weeks imprisonment;

b)	Custodial sentence imposed and proposes that sentence is substituted by a fine of $400 to be paid within 2 weeks or in default, 4 weeks imprisonment. 

5.	In response, Mrs. Vaihu withdrew the appeal against conviction and submitted a reduction of the fines by 50%. 

4.	Mrs. Vainikolo submitted that;

a)	the proposed fines were appropriate under the circumstances; and  
b)	I should re-sentence the appellant in CR 870-871 of 2021 and substitute the custodial sentence with a fine for $200.  No authority was provided on whether or not I have the power to re-sentence a matter not on appeal before me. I decline to do so on that basis.

5.	Accordingly, the following orders are made:

6.	The appeal against conviction is withdrawn and the conviction stands.

7.	The appeal against activating the suspended sentence in CR870-871 of 2021 and sentence in this present case is allowed. 

8.	The orders of Magistrate Pahulu-Kuli are quashed.

9.	Having regard to the maximum statutory penalty of $1,000, the circumstances of the offending and the offender, the fact that the defendant is employed and earning $200 -$300 per week, I make the following orders in substitution:

a)	the re-activation of the suspended sentence in CR 870-871 is cancelled;

b)	the appellant is fined $400 to be paid within 2 weeks or in default 4 weeks imprisonment. 

P. Tupou KC
J U D G E

Nuku’alofa: 14 February 2023