In The High Court of Tuvalu
HC. Crim. App. case no. 5/13
At Funafuti

Criminal Appellate Jurisdiction

Between:

Kalo Seselo
Appellant

v

Crown
Respondent

BEFORE THE JUDGE

Ms. Nele Semu for the appellant.
Ms. Laigane Italeli for the respondent.

The appellant pleaded guilty to the indecent assault of a 13 year old girl. The girl was asleep at the time and had no idea what the appellant was doing.

The learned Senior Magistrate sentenced the appellant to imprisonment for one year and nine months. Appeal is brought on the ground that the penalty is excessive given the facts and in the light of penalties imposed in other cases in this jurisdiction and in Kiribati.

I pause here to say that every case is unique: no two cases have exactly the same facts: each case must be judged and penalty be imposed on its own facts. Other cases can be no more than a general guide.

The more so is this true when an appellate court is invited to compare cases from other jurisdictions. In my experience in Kiribati and in my short experience in Tuvalu. I have the impression that the penalties generally for indecent assault are less in Kiribati than in Tuvalu. This, too should be borne in mind when invited to make comparisons.

Apart from all that, the general principle is that a higher court, whatever penalty it may have imposed if sitting at first instance should not interfere with the decision of a lower court imposing penalty unless the discretion of the lower court has been exercised in such a way as to have miscarried. 

The learned Senior Magistrate gave a carefully reasoned judgment. His discretion has not miscarried. The penalty he imposed should stand.

The appeal is dismissed.

Date 21st day of February 2014

Hon. Robin Millhouse QC
JUDGE OF THE HIGH COURT OF TUVALU