IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 5/2002

SELE LAUSAVEVE

v

R

Hearing: 14 February 2003
Judgment: 17 February 2003

James Duckworth for the appellant
Sa'aga Talu for the respondent

JUDGMENT

The appellant pleaded guilty, before the Resident Magistrate sitting in Funafuti on 5 December 2002, to an offence of being drunk and disorderly, contrary to section 167(d) of the Penal Code. It appears that he was drunk in the Vaiaku Lagi Hotel and urinated against the hotel wall. It is difficult, on the bare statement of facts in the magistrate's notes, to understand exactly what was the evidence that he behaved in a disorderly manner. However, this was a plea of guilty and so there is no appeal against conviction.

The accused had a large number of previous convictions mainly relating to drink and the magistrate sentenced him to weekend detention for one month and prohibited him from drinking for one year.

He has now served the sentence of weekend detention and so the matter is moot. I do not consider it is necessary to go further on that aspect of the appeal against sentence.

However, the prohibition on drinking must be set aside and counsel for the respondent does not seek to oppose this.

Section 82(1) of the Alcoholic Drinks Act, Cap 69, allows a court, to make such an order if an application has been made to the magistrate and he is satisfied the person is of confirmed intemperate habits. No application was made in this case and so the magistrate cannot have been applying subsection (1).

Subsection (2) also allows the court to make such an order where the accused is convicted of an offence that involved drunkenness and has been convicted at least twice in the previous 12 months of similar offences.

The accused's record of previous offences shows that he has many convictions for similar offences but he was last convicted of an offence involving drunkenness in May 2001 and, prior to that, his last was in 1997. Therefore the magistrate had no power to make such an order.

A court must always be careful, when sentencing, to check the full provisions relating to the sentence it intends to pass. Failure to do so can, all too easily, lead to the type of mistake that occurred here and which, wrongly, deprived the appellant of his rights.

The appeal is allowed to the extent that the order made under section 82 of the Alcoholic Drinks Act is quashed.

Dated this 17 day of February 2003.

Gordon Ward
Chief Justice