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Matekuolava v R [2001] TongaLawRp 51; [2001] Tonga LR 276 (2 November 2001)

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

Cr 22/2001

Matekuolava

v

R

Ford J
26 October 2001; 2 November 2001

Sentencing – appeal against sentence – guilty plea

In July 2001 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 against the severity of the latter sentence and submitted 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.

Held:

1. When the offender pleaded guilty he admitted that he committed the offence but he did not necessarily concede that the prosecution case against him was correct in its entirety. He may deny that the facts were as grave as presented by the prosecution.

2. 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.

3. A miscarriage of justice may well have resulted from the failure of the learned magistrate to follow the recognised procedure. The sentence was quashed; the case was referred back to the Magistrates' Court for re-sentencing before another magistrate.

Cases considered:

Narayan v Police [2001] Tonga LR 270

R v Archer [1994] Crim LR 80

Counsel for appellant: Mr Tu'utafaiva
Counsel for respondent: Miss Tupou

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.