IN THE HIGH COURT OF TUVALU
AT FUNAFUTI
Criminal Appellate Jurisdiction

Case No: 6/05

Between:

Mataluga Taulamati
Appellant

v

Regina
Respondent

BEFORE THE CHIEF JUSTICE

Stephen Barlow for appellant
Saini Malalau for respondent

Hearing: 16 May 2005 
Judgment: 20 May 2005

Judgment

This is an appeal against a sentence of 6 months imprisonment ordered by the learned Senior Magistrate for an offence of housebreaking, contrary to section 293(a) of the Penal Code.

The facts were that the appellant forced the front door of the victim’s house by shaking it and stole some food and a bottle of wine from the refrigerator. He ran away when he saw the householder’s wife coming. As he did so, he threw the food and wine away. When he was arrested he admitted the offence and told the police officers that he was drunk at the time he committed it.

He pleaded not guilty and the Senior Magistrate proceeded to hear the case the same day.

He now appeals on three grounds:

1.	that the learned Senior Magistrate failed properly to consider whether to suspend the sentence of imprisonment
2.	that the learned Senior Magistrate failed to warn the defendant of the likelihood of imprisonment and provide him with an opportunity to seek legal advice; and 
3.	that the sentence was excessive.

Counsel for the Crown advises the Court that she does not object to the first two grounds but does suggest that the sentence is too lenient.

In respect of the first ground, counsel for the appellant points out that there were a number of features of this case which should have resulted in a suspended sentence of imprisonment. He correctly states that, once a court has decided the appropriate sentence is one of imprisonment, it should always then move on to consider possible suspension.

The learned Senior Magistrate gave a short sentencing judgment in which he stated the matters he considered relevant to the assessment of the sentence. He does not state that he considered the possibility of suspension. It is important that any magistrate should state the reason for his decision and so he would be wise to record the various issues he has considered. In this case, it is clear from the record that he took into account a number of matters which would be relevant to the decision whether or not to suspend. Two notable omissions are the fact that the appellant had not been to prison before and his youth. 

However, there is no obligation on the court to set out every issue. The fact he had not been to prison before was clear from the record of previous convictions to which the magistrate referred. If the record shows that the relevant matters were before the lower court, an appellate court will be slow to assume, in the absence of anything else, that he has not applied the correct tests to his decision. 

The fact the appellant had not been to prison before is relevant to a consideration of whether to suspend the sentence but the nature of this offence and the previous convictions of the appellant would, in themselves, be sufficient to justify a decision not to do so.

The first ground is dismissed.

The second ground has more substance. In this case the appellant was dealt with on the same day as he entered his plea and he was unrepresented. It is apparent from the record that he gave the court some information about his personal circumstances and it may be that they were elicited by the magistrate’s questions. 

Counsel suggests that the court should have warned the appellant of the likelihood of imprisonment and allowed him an opportunity to obtain legal advice. I find it hard to accept that a man with 10 previous convictions, albeit for less serious offences, would be unaware of the risk of immediate imprisonment. On the other hand, the court must be conscious of the difficulty many defendants have to speak out in their own behalf or even to be aware which matters will have any mitigating value. In such circumstances, where the case is one which points to a likely sentence of imprisonment and the accused has not been to prison before, the court should either advise the defendant to seek legal advice and give him an opportunity to do so or adjourn to obtain a social welfare report.

The judgment does not reveal whether any such advice or opportunity were given and there is no mention in the record. Any advice or warning given to the accused must be included in the record and its absence in the present case leaves this Court with no option but to assume it was not done. In those circumstances I am satisfied that there is a possibility that the appellant was not able to put his case properly to the court and the appeal is allowed.

Although that makes it unnecessary to consider the third ground of appeal, I deal with it briefly. This Court has stated before that breaking into private houses is a very serious offence. Although the present case was undoubtedly at the lower end of the scale in terms of the amount of force needed and the quantity of property taken, the fact remains that he broke into a locked home. The effect of such violation of a person’s home can be extremely traumatic. The one place where everyone should be able to relax and feel secure has been violated and many people are left with a sense of insecurity which may never leave them. Anyone who breaks into a house runs the risk of causing such harm and the courts must reflect that in the sentence.

A sentence of imprisonment should be imposed even on a first offender. The seriousness with which such an offence is regarded is reflected in the maximum sentence provide under the section and the length of the term should be graded accordingly. Once the proper term is ascertained and if it is one which can be suspended, the court should then consider whether to do so.

For a person who had already committed a number of offences which show, at the very least, a disregard for the law and other people, this sentence was manifestly lenient.

However, I have allowed the appeal and shall remit the case to the Senior Magistrate’s Court with a direction that he obtain a social enquiry report and then consider the appropriate sentence fresh. As the appellant had good grounds for his appeal on the second ground, I do not consider it right that he should face the risk of an increased sentence and so I direct that whatever sentence is imposed, it shall not exceed 6 months imprisonment.

Dated: 20th day of May 2005

CHIEF JUSTICE