R v Mafi [2024] TOCA 2; AC 3 of 2024 (28 May 2024)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

AC 3 of 2024
[CR 132 of 2023]

BETWEEN
REX

- Appellant

AND
FALAKIKO ‘ASISI MAFI

- Respondent

JUDGMENT OF THE COURT

Court: Randerson J

de Jersey J
Heath J

Counsel: Mrs T. Vainikolo for the Appellant
Mrs H. Aleamotu’a and Mr. A. Fusimalohi for the Respondent

Hearing: 22 May 2024
Judgment: 28 May 2024

[1] The respondent, in his early 40’s, having consumed alcohol, crashed his car, killing his wife and injuring his 3 children, two seriously. He pleaded guilty to the relevant offences, which were Count 1, reckless driving causing death, and Counts 2 and 3, reckless driving causing grievous bodily harm. He was sentenced to an effective term of 12 months imprisonment for reckless driving causing death (2.5 years with the final 18 months suspended for 2 years conditionally). The sentencing Judge imposed concurrent terms each of 18 months for the reckless driving causing grievous bodily harm offences. The maximum penalties were, on Count 1 15 years imprisonment, and for Counts 2 and 3, 7 years. The Crown appeals on the ground of manifest inadequacy, leave having been granted on whether the sentence reflected the guidelines in Ikahihifo v Rex^[1].
[2] On the day of the incident, the respondent was tired and had consumed a quarter of a bottle of liquor before driving his family in the vehicle to Lapaha where he drank a can of beer before heading home. On the way home the respondent noticed himself getting sleepier and less in control of his driving. He was awoken a few times by his children and his wife as he was leaning to the side with his head falling backwards.
[3] In the course of that journey, he overtook another vehicle 3 times.
[4] In the Pea Area, his vehicle veered off the road and crashed into the gate of a church. His wife died 5 days later because of her severe injuries. One child suffered a collapsed lung, a right lung contusion and a moderate head injury. A second suffered a closed fracture of the left tibia and fibula. The third child suffered a mild head injury.
[5] In the result, the children are left without a mother – and without a father during his incarceration.
[6] The respondent appeared for himself when sentenced. He pleaded guilty at an early stage and had no prior convictions. He was remorseful and had the forgiveness of his deceased wife’s family. He was well regarded in his community. He now has to live with the consequences for his whole family.
[7] Aggravating features are driving while intoxicated and falling asleep, overtaking another vehicle several times, failing to heed the warnings of his children, and by virtue of those warnings if nothing else, knowing himself that he was placing his family (and others on the road) in danger.
[8] On the charge of reckless driving causing death the Crown proposed at sentencing a ‘starting point’ of 6-7 years imprisonment, mitigated by 30% reflecting the early plea of guilty, remorse and forgiveness, reducing to 48-60 months imprisonment. On that approach, some part of the terms imposed concurrently could arguably have been added for the serious injury to the children, the 2 separate counts.
[9] The learned sentencing Judge adopted a starting point of 5 years imprisonment, and then allowed a 50% deduction by way of mitigation, notwithstanding the offending was as she held in the “highly culpable” standard of driving under the Gacitua^[2] guidelines. These were adopted in Ikahihifo. During the hearing of the appeal, counsel for the respondent accepted that this was an appropriate categorization.
[10] The Judge considered whether a full suspension was warranted^[3], but said that ‘unfortunately’ it was not, because “his actions resulted in the loss of his wife and serious injury to 2 of his children”. That led to suspension of the final 18 months of the 2.5 years term, the Judge observing that “his children are not only motherless, but will also be fatherless for some time”.
[11] In imposing concurrent 18 month terms on Counts 2 and 3, the Judge seems to have regarded the situation created by those offences more as a mitigating than aggravating feature in that she referred to them in the context of discussing the issue of suspension. There was no overt reference by the Judge to the aggravating aspect of those additional offences in relation to the overall sentence to be imposed for this very serious offending. She arguably thereby fell into error.
[12] The approach of this Court in this type of appeal is discussed in R v Misinale^[4] where the Court said that if an error of the sentencing Judge warrants interference, “the sentence should be increased only to the lower end of the appropriate sentencing range”. There is no suggestion here that the prosecution’s approach contributed to any error. The principles of sentencing were discussed in Fifita v R^[5].
[13] The appellant’s contention is that the starting point (5 years) was too lenient and clearly below the Gacitua guidelines for highly culpable driving. It was submitted it should have been not less than 6 years, being “at the lowest end of the sentencing range” even without including any uplift in respect of the other two charges. The Learned Judge referred to R v Afu^[6] and R v Latu^[7], but they preceded Ikahihifo which is more helpful in this situation.
[14] The Appellant also submits 50% mitigation was inconsistent with the cases to which the Judge referred where that factor ranged between 37.5% (Afu) and 40% (Latu). The reduction in Ikahihifo was 37.5%. The Crown submission acknowledged nevertheless the close relationship between respondent and victims.
[15] The appellant submitted there could have been partially cumulative terms for the grievous bodily harm counts and that the suspension of the final 18 months renders vulnerable a sentence already questionable because of “the lenient starting point, excessive mitigation, and insufficient consideration of the aggravating features”.
[16] Counsel for the respondent submitted that although the sentence was clearly lenient, the learned Judge’s approach fell within the limits of her legitimate discretion. No particular error was identified.
[17] Ordinarily, the discount for an early guilty plea and a clean record would be “between a quarter... and a third”^[8].
[18] Working from 6 years (though it could well have been 7 years, allowing for the totality of the offending) and adopting for argument an Ikahihifo 37.5% reduction, the result would be 3.75 years imprisonment. But this is not a mathematical exercise. And there is the caution any adjustment should be to the lower end of the range. So reflecting the matters in mitigation, a 40% reduction could be allowed – leading to a rounded term of 3.5 years as a starting point.
[19] We do not propose to interfere with the term of suspension which was for the last 18 months of the sentence suspended for two years on conditions.
[20] Notwithstanding the learned Judge’s plainly careful expression of her reasons, it must respectfully be said that the sentence imposed on Count 1, of 2 years 6 months imprisonment with the final 18 months conditionally suspended, was, for offending of this marked gravity, manifestly inadequate. It failed to reflect the grave loss of life, the culpability of the driving, the need for a serious message of general deterrence, and the other major injuries which occurred. These features join substantially to outweigh matters which are otherwise in the respondent’s favour. This reflects the approach of Ikahihifo.
[21] The appeal is allowed and the sentence imposed on Count 1 is set aside, and on that Count, the respondent is imprisoned for 3.5 years, the final 18 months being suspended for 2 years on the conditions imposed by the learned sentencing Judge on 12 January 2024. The driving licence disqualification for 3 years runs from the date of sentencing. The sentences imposed in respect of Counts 2 and 3 remain undisturbed, to be served concurrently with the 3.5 years term of imprisonment for Count 1.

_______________________
Randerson J

______________________
de Jersey J

______________________
Heath J

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^[1] Ikahihifo v R [2021] TOCA 21
^[2] Gasitua [2023] NZCA 234
^[3] Mo’unga [1998] Tonga LR
^[4] R v Misinale AC13/99, unreported 23 July 1999,
^[5] Fifita v R [2000] TLR 289
^[6] R v Afu [2017] TOSC,
^[7] R v Latu [2018] TOSC 42
^[8] R v Malia Selupe CR 47 of 2020 Para 27