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Narayan v Police [2001] TongaLawRp 50; [2001] Tonga LR 270 (2 November 2001)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

Cr 25/2001

Narayan

v

Police

Ford J
26 October 2001; 2 November 2001

Sentencing – appeal against severity of sentence – no understanding of Tongan language – upheld

The appellant, Surya Narayan, pleaded guilty in the Magistrates' Court 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 appealed against the severity of the sentence. The two grounds of the appeal were that the appellant did not understand the Tongan language apart from the basic greetings; and that the magistrate 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.

Held:

1. Given the nature of the submissions on the language difficulties in the case, which were corroborated by the magistrate's call for an adjournment and an interpreter before passing sentence, the Court held that an injustice may well have resulted from the appellant's inability to adequately understand the Tongan language and therefore this ground of appeal was upheld.

2. In general for a first-time offender, unless the circumstances of the offending are exceptional, a custodial sentence should not be imposed. Even in those rare cases where a custodial sentence would be appropriate, the magistrate should consider whether, in all the circumstances, a suspended sentence is called for.

3. The sentence imposed was excessive. The appeal was allowed and the case was remitted back to the Magistrates' Court for re-sentencing before another magistrate.

Cases considered:

Matekuolava v R [2001] Tonga LR 276

R v Newman [1976] Crim LR 265

R v Thomas (1973) 57 Cr App R 496

R v Tupa (1973) 58 Cr App 234

Counsel for appellant: Mr Tu'utafaiva
Counsel for respondent: Mr Sisifa

Judgment

There are similarities between this case and another appeal which I heard at the same time Matekuolava v R [2001] Tonga LR 276 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.