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Ieliko v Regina [2005] TVHC 8; Criminal Appeal Case 5 of 2005 (20 May 2005)

IN THE HIGH COURT OF TUVALU
IN FUNAFUTI
Criminal Appellate Jurisdiction

Case No: 5/05

Between:

Fuia Ieliko
Appellant

v

Regina
Respondent

BEFORE THE CHIEF JUSTICE

Stephen Barlow for Appellant
Saini Malalau for Respondent

Hearing: 16 and 18 May 2005
Judgment: 20 May 2005

Judgment

The appellant appeared before the Senior Magistrate’s Court on 25 February 2005 and pleaded guilty to one offence each of driving without a driving licence and driving an unlicensed vehicle. Both offences had been committed on the same day the previous August.

The appellant had appeared before the court eleven times since October 2000 and been convicted of 20 offences all but one of which were traffic offences relating to offences similar to the two for which he was sentenced in February.

The learned Senior Magistrate sentenced him to four months imprisonment for the offence of driving without a licence and one month concurrent for driving an unlicensed vehicle.

The appellant appeals against that sentence on four grounds, namely that the learned Senior Magistrate failed properly to consider alternatives to full time imprisonment or whether to suspend the sentence and gave insufficient weight to the appellant’s youth and his rehabilitation and, finally, that the sentence was manifestly excessive.

I can deal with the first three grounds of appeal together. The Senior Magistrate clearly had all the matters of mitigation mentioned by counsel in the appeal and referred to them in his sentencing remarks. In those circumstances, this Court will assume unless there is evidence to the contrary that the Senior Magistrate did properly take them into consideration.

It is equally clear that the Senior Magistrate based his sentence on the appellant’s record of offending. He stated:

"The offences in which the accused is charged are minor offences except that the accused repeated committing them. The accused has twenty previous convictions and the first one was in October 2000 and the last in June 2004.

The last time the accused appeared in court was in June 2004 on three cases with the same offence and he was fined totalling $135.00. ... The accused committed the offences in which he is charged two months later from the last time he appeared in court, without considering the heavy fines he received where he escaped a custodial sentence."

The magistrate then took the appellant’s pleas of guilty and his mitigation into consideration and, having referred to his financial situation, concluded:

"The court feels that time is up for the accused to learn something."

The Senior Magistrate had clearly decided that the previous convictions showed the appellant had no interest in obeying the law and that the penalties imposed for those offences had been ineffectual in changing this attitude.

On the evidence before him, that was a proper and reasonable approach. In such a case a court is justified in deciding that the accused’s attitude as demonstrated by his repeated offences of this type suggests that to offer the chance of a suspended sentence would be a waste of time.

No court will take such a step lightly and I am satisfied that the Senior Magistrate took into account all the relevant matters of mitigation to which he has referred in his sentencing note. Having done so, he decided that immediate imprisonment was the only remaining option.

The fourth ground suggests the sentence of four months for driving without a licence was manifestly excessive when considered against the maximum sentence of 6 months imprisonment. I do not agree. The maximum sentence prescribed by Parliament must apply to the worst case of its type. In an offence such as driving without a licence there is little that can be seen to aggravate it except repeated offending. Should it be combined with driving in an irresponsible manner that would be the subject of other charges and further penalties. For this particular case, I do not consider a sentence two thirds of the maximum can be considered manifestly excessive.

Having said that, I consider there is some merit in the suggestion of counsel for the appellant that the step from repeated fines to an immediate sentence of imprisonment for a young man of this age could be too draconian a change and that there could still be room for some alternative.

I have no doubt the Senior Magistrate did consider the alternatives and was satisfied they would not be effective. However I am left with a feeling of concern that, after the appellant had been consistently ordered to pay fines for so long, the court should have considered giving an alternative chance to the appellant to rehabilitate himself as a clear and final warning that he was approaching certain imprisonment.

In those circumstances, I allow the appeal to the extent that I order the sentences of four and one months imprisonment concurrent be suspended for a period of two years. The appellant should be in no doubt that, whatever the mitigation provided by his family or his personal circumstances, a further offence will result in immediate imprisonment and the consequent loss of his employment and hardship for the family he supports.

Before leaving this appeal I would mention three further matters.

After serving four days of his sentence, the appellant was granted bail pending appeal. Counsel for the respondent has challenged the manner in which the application was heard by the court. Apparently it was granted without hearing from the prosecution.

The grant of bail by a court requires an exercise of the court’s discretion and must be made on proper grounds only after hearing both sides in the case. The prosecution must always be asked whether it has any objection to the grant of bail. It is in a position to advise the court of matters directly relevant to the central question of whether the applicant is likely to appear in answer to his bail. Similarly the prosecution may challenge some or all of the grounds advanced in support of the application. It is therefore essential that the court does not decide an application for bail without giving the prosecution notice and an opportunity to be heard.

The second matter arises from the suggestion, during the course of the appeal, that the appellant was not able to obtain a driving licence because the police refused to examine him for fitness to drive as long as he had outstanding traffic cases. That was confirmed by the police officer in charge of licensing who explained that it was the result of an oral amendment to Police Standing Order 52 made by the Commissioner.

That is wrong and will tend to aggravate cases such as this. This appellant clearly is driving. It is in the public interest to see that he obtains a driving licence if he is competent. If he obtains such a licence, the offences he has repeatedly committed will cease and court time will not be wasted.

Whether he has outstanding charges to face is irrelevant to his right to obtain a licence. If, having obtained a licence, he is then convicted of an outstanding offence for which disqualification is appropriate, the court will no doubt remove his licence but that is for the court. It is no function of the police to refuse to conduct a test if the requirements of sections 14, 15 16 of the Traffic Act are fulfilled. To do so is effectively usurping the court’s function.

The final matter relates to disqualification from holding a driving licence. Section 25 of the Act empowers the court to order that an offender be disqualified from driving. It is a sensible and valuable penalty but it will only be effective if there is a specific offence of driving whilst disqualified. Remarkably, our Act has no such provision.

In many jurisdictions an offence of driving whilst disqualified attracts a substantial penalty. Any person who commits the offence is deliberately ignoring a court order and so the penalty is frequently worded in such a way that an offender must be sentenced to immediate imprisonment unless there are special circumstances.

I would ask that a copy of this judgment be forwarded to the Attorney General with a recommendation that consideration be given to the inclusion of such an offence.

Dated: 20th day of May 2005

CHIEF JUSTICE