IN THE HIGH COURT OF TUVALU
AT FUNAFUT
Criminal Appellate Jurisdiction

Case No: 4/04

Between:

Etuini Siopepa
Appellant

v

Regina
Defendant

BEFORE THE CHIEF JUSTICE

Elisala for appellant
Talu for respondent

Hearing: 7 October 2004
Judgment: 8 October 2004

Judgment

The appellant pleaded guilty to reckless driving and careless driving, contrary to the Traffic Act, and driving in a prohibited area, contrary to the Aerodrome Regulations. He was sentenced to concurrent terms of 9, 6 and 1 month imprisonment respectively but all concurrent giving a total term of 9 months.

He now appeals against that sentence on the single ground that it was too harsh and excessive given the antecedents of the appellant.

The facts were that the appellant had driven a motorcycle along the runway from the northern to the southern end sometime after 7 pm. He had no light on the motorcycle and, as he neared the southern end, he came to some people sitting on the runway. He tried to avoid them but his speed and the distance between him and the people when he first saw them resulted in his motorcycle striking a woman in the group. The appellant did not stop and neither did he report it to the police. Later, when he was seen by the police, he admitted being the driver and maintained that admission at the trial.

The victim was taken to hospital where it was seen that she had suffered a cut to the back of the head which, although down to the skull, had not caused any fracture. She was treated and detained for care and observation for three days. 

Counsel for the appellant was also counsel at the trial where she gave a detailed and careful mitigation. It appeared that the appellant had previous convictions but they were of a different nature to the present case and the latest had been 13 years before. Counsel points out that the appellant is a seaman and this case has already lost him the chance to go to sea while he was awaiting trial. He supports his wife and child and also members of the wider family and his imprisonment has left them without support. Whilst I accept the seriousness of such circumstances on the innocent members of his family, they are not matters the court can take into account in mitigation. The responsibility for his family is that of the appellant and, if he fails them by placing his liberty in jeopardy, the court cannot take over that responsibility.

In fact, the record shows that the learned Senior Magistrate did take note of those matters and also noted that the previous convictions were not relevant.

Although not raised as part of the appeal, I take the opportunity to mention two matters in relation to the previous convictions. The first is that, at the hearing, the prosecutor produced a copy of the appellant’s previous convictions which was too faint to read and the case was adjourned to allow him to produce a better copy.

It is the duty of the prosecutor to have his case ready for the hearing. If he has not produced any list of previous convictions or has an inadequate copy, the court should continue with the case on the basis that there is no evidence of previous convictions. The accused is entitled to know his sentence as soon as reasonable after conviction and that should not be delayed because of a failure of the prosecutor unless there is good reason - which will not include the prosecutor bringing inadequate documentation.

The second matter is more serious. When the previous convictions were produced the defence disputed the accuracy of one of those recorded. The learned Senior Magistrate ruled that it was for the defence to prove the record was incorrect. Again the case was adjourned and, at the adjourned hearing, the accused gave evidence. The prosecution called no evidence and the Magistrate ruled the accused had failed to prove the record wrong.

Whenever the prosecution produces a list of previous convictions, the accused must be asked if he accepts them. If he does not, the burden is on the prosecution to prove any that has been challenged. This is rarely necessary and so the prosecution is not expected to have the evidence to prove them with him at the hearing. Therefore, the prosecution should be allowed an adjournment to do so by direct evidence or by one of the means provided under the Criminal Procedure Code.

If the court does not consider the disputed conviction important or relevant enough, it can simply ignore it and proceed to sentence but, when it does so, it must state that particular conviction is not accepted.

It is never on the accused to prove the record is inaccurate and, in the present case, once the accused had challenged the conviction, the adjournment should have been for the prosecution to prove it failing which the conviction should have been ignored.

However, I am satisfied that, in this case, neither of these errors affected the sentence passed.

An appellate court will only interfere with a sentence if it is unlawful, manifestly excessive or wrong in principle. In this case I am satisfied that an immediate sentence of imprisonment was appropriate and nine months was a proper sentence on these facts.

Anyone who drives a motor vehicle carries a heavy responsibility to other road users. If he drives recklessly, he must understand that a sentence of imprisonment may be considered. Where, as a result of his recklessness, an innocent member of the public is injured, the likelihood of imprisonment increases considerably. 

If, having been involved in a collision where it is clear a person has been struck or may otherwise have been injured, the driver does not stop and render assistance or even check if injury has been caused, the only appropriate sentence is immediate imprisonment. The selfish callousness of such conduct is so great that the personal circumstances of the accused are unlikely to have sufficient weight to displace that requirement.

I accept that there may be circumstances where the driver believes he will be in danger if he stops but, in such a case, he must immediately notify the police or the medical authorities. Simply to run away in order to try and avoid the consequences of his actions is a strongly aggravating factor.

This appellant drove where he was not entitled to and where everyone knows many people sit and relax in the early evening. He had no light and drove at a speed that meant he was unable to stop by the time he was close enough to see the people in his way. He can have had no doubt at all that he had struck one of them and yet he drove off not knowing if he had killed or injured that person.

I see no reason to alter the total sentence of 9 months imprisonment and the appeal must fail. I add, however, one matter. 

The facts relating to the charges of reckless and careless driving were the same. Once a plea of guilty had been entered for the more serious offence, the other charge should not have been put. Equally, the appellant having admitted both, it was inappropriate to pass a separate penalty for the lesser offence. To that extent the appeal is allowed and the conviction and sentence for careless driving is quashed. However, that does not affect the actual period of imprisonment.

Dated: 08th day of October 2004

CHIEF JUSTICE