Rex v Saafi [2004] TOSC 59; CR 300 2003 (27 August 2004)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY

NO. CR. 300/2003

REX
Prosecution

-v-

HENELI SAAFI
Defendant

BEFORE THE HON. MR JUSTICE McELREA

Counsel:
Mr Kefu for the Crown
Mr Veikoso for the Defendant

Date of trial: 9-13 August 2004
Date of sentencing: 27 August 2004

SENTENCING REMARKS

Facts for sentencing purposes

On 13 January 2003 the defendant Heneli Saafi was the driver of a van, which swerved off the road and hit a Toa tree, killing two young passengers seated in the back of the van, Malina Tu'uta aged 21 and Latu Moimoi aged 20. At the time there were 4 or 5 other young people in the van, all of whom suffered various degrees of injury. The defendant was at the time aged 20 and did not have a driver's licence.

The defendant was found guilty on two counts of manslaughter by negligence, one count relating to each deceased.

The evidence was that immediately before the leaving the road – just on the outskirts of the village of Ha'alalo, the vehicle was seen swerving from one side of the road to the other, there being two swerves in each direction from the time the van was seen by two man cycling out of the bush on to the road. It is likely, in my view that the vehicle was out of control because the driver had lost consciousness through the combined effect of drunkenness and tiredness.

While these facts stated on their own suggest very serious offending, there are some most unusual facts concerning the defendant's decision to drive which in my view amount to unusually strong mitigating circumstances. I will return to these shortly, but should first outline the events of the day.

All the young people in the van had been at a picnic at Halaika Beach in the southeast corner of Tongatapu Island. The picnic was organised by or for a netball team. The defendant had been asked to prepare a piglet for the picnic, and he had up all the previous night doing that, while drinking with friends. More alcohol was consumed before going to the beach, and again at the beach.

In the middle of the afternoon some of those at the picnic left in the van to buy some more alcohol and collect a friend from Kolovai at the opposite end of the island. (This friend was Malina, the girl who died in the accident.) Throughout all of this time the van was being driven by Latu Moimoi, the male who later died in the accident. The van belonged to his father, and he (Latu) had a driver's licence.

When the group got to Kolovai, Malina's mother refused to allow her to go to the picnic, but she managed to leave the house and meet up with the van a short distance away where she got in and sat on the back seat. At this stage Latu was still the driver, and the group of young people was intending to return to the picnic.

It is clear that Latu was very keen to sit with Malina in the back of the van, because after driving only a few hundred metres he stopped the van and asked the defendant to take over the driving so that he could sit in the back with her. The defendant had been in the back of the van up until this point. He did not want to become the driver.

How then did the defendant come to take over the driving? That is the question.

It is clear that there was a high level of pressure or coercion was exerted on the defendant, although no threat of any sort was made. There was no evidence at trial of the threat to the defendant referred to in the probation report.

When asked to drive, the defendant said that he did not want to because he was too drunk. He also said that he did not know how to drive a vehicle with a manual gear shift. Latu did not accept this and said he could instruct him how to drive from the back of the van. The defendant still declined to drive, and said he was too tired, as he had been up all night. Still Latu insisted that he drive. Their voices were raised, so it seems that this had become an argument between them. It seems that Latu had already got out of the drivers seat by now, because the defendant's statement to the police referred to the fact that the others insisted he (the defendant) should drive because Latu had already got out and the van was stopped. As a result of this combined pressure and against his own judgment the defendant gave in and took over the driving.

The difficulties that he had getting started – namely stalling the engine twice, and moving forwards in a jerking fashion that indicated to a following driver that the defendant did not know how to drive – proved that he was correct in his claim that he did not know how to use manual gears.

I therefore gained a picture of a young man who was far too drunk to drive but was put under heavy pressure to do so and pointed out all the reasons why he should not do so. Having tried to reason with Latu, and Latu being determined he would sit in the back with the girl Malina, there was then a stalemate where the van was stationary and going nowhere, and some of the others in the group started telling the defendant he should drive.

Of course the defendant should not have given in. He should have stood firm. That is the legal position, especially when he did not have a driver's licence in the first place. I do not agree with Mr Veikoso that the defendant is a completely innocent person, and to the defendant's credit he believes he shares some of the blame, according to the probation report. But the reality of the matter was that the very same intoxication that the defendant was giving as a reason not to drive, probably weakened his judgment and in part explains the bad decision that he made. It is likely that peer pressure from others in the van, arising from the frustration of their "getting nowhere", also had a part to play.

The facts of this case are therefore most unusual – I have certainly not come across the likes of it before – and I believe they result in a greatly reduced level of culpability or blame on the part of the defendant. On the facts presented at trial, the deceased Latu (who was himself drunk, according to his sister Olivia) could, if alive, have been charged as a party to the manslaughter of Malina. I say that conscious that he is not here to defend himself, but the defendant's account of the matter to the police - he did not give evidence at trial - was supported by several prosecution witnesses.

I agree also with the submission of Mr Veikoso to the jury that it is amazing that no-one in the van spoke up to support the defendant and tell Latu to back off and leave the defendant in the back of the van. In a sense, the whole group, were a party to wrong decision that the defendant made, because it appears that none of them spoke up for what was right. Probably alcohol had something to do with that as well.

The defendant defended the charges on the basis that he was not conscious of what he was doing, and was not capable of forming the intention to drive. The Crown had not argued for any reduced element of mens rea and I instructed the jury that a lack of intention to drive would be a complete defence to both manslaughter by negligence and the alternative charge of drunken driving, and if there is a reasonable doubt about it the Crown had not proved its case and you the defendant was Not Guilty.

I agree with the verdict that the jury reached, as I consider that the defendant did make a conscious decision to drive, and knew what he was doing, even though he did not want to drive and did so only after great pressure was put on him. I consider it very likely that having driven for about 5 miles he lost consciousness at the wheel, possibly also causing his foot to depress the accelerator and the vehicle to speed up. When the passenger Vika shouted at him to slow down he did not respond, and did not seem to understand anything. By then the vehicle was completely out of control and on its fatal path towards the Toa (or "iron") tree. It is ironic but true that the defendant's relaxed state due to unconsciousness may have saved him from greater injury. He was found by the first person on the scene to be still behind the wheel and apparently asleep.

Submissions of Mr Veikoso, and contents of probation report

Mr Veikoso in his submission today supported the probation report, which he said covered most of what he was proposing to say. However he argued that although he was convicted his client is an innocent person and the jury should not have convicted him. I say to Mr Veikoso that that is not a proper submission to make at sentencing. The sentencing judge must proceed on the basis that the jury's verdict is right, and counsel are also required to accept that verdict for sentencing purposes. To do otherwise undermines respect for the Court.

Mr Veikoso asked me to deal with his client by a suspended sentence.

The probation report by Heneli Telefoni is one that is very helpful to the defendant and I was most impressed with its quality. The probation officer describes the defendant as someone whose mother died in 1999 in New Zealand. His father has remarried but lives in New Zealand. The defendant lives with two aunts but he is working at the Pili Quarry and earns $40 a week, which he puts towards the family's needs. The accident has brought about a change in his behaviour. He used to like go out with friends to nightclubs and drink almost every weekend, sometimes heavily. Despite that, his aunt Leti confirms that since this incident he has stopped drinking. She confirms that he is a regular attender in the Catholic Church and takes part in its activities.

The probation officer says that the defendant admits his guilt but his lawyer advised him to plea Not Guilty. (The fact that he is prepared to take responsibility for what happened counts in his favour, even though he did not plea Guilty - but a plea of Guilty would have resulted in a lesser sentence than I am going to impose.) He adds that things are not going well for the defendant, because his mind never escapes the incident; his only comfort is by going to Church and his being involved there seriously. I take that as a further expression of his genuine remorse. He says that since the accident he has not driven any motor vehicle.

Attitude of victims' families

An apology had been offered to both families of the deceased in the Tongan way, and through the probation officer the defendant also apologises to the Court for breaking the law.

The attitude of the deceased's families is relevant, in my view, because they are victims of the offending. I believe that the Courts in Tonga are entitled to take victims' views into account in sentencing, although the final decision remains the responsibility of the sentencing judge. This is the position in a number of countries overseas including New Zealand and Britain. I suggest it is also appropriate in a country like Tonga where the cultural emphasis upon apology and restitution underlines the important role of victims in dealing with the aftermath of offending in the community.

Through the probation officer Malina's father explains his wishes that the court gives the defendant a chance to face his future. He says that if his daughter had obeyed her mother she would still be alive. He adds that he accepts the defendant’s apology and has forgiven him.

Latu Moimoi's mother says that her family had also forgiven the defendant. She adds that after the incident her daughter 'Olivia (the sister of the deceased Latu) told her that she was in the van and had asked her brother Latu to pick up the defendant, but Latu didn't know that 'Olivia was the girlfriend of the defendant. She said that after the incident 'Olivia gave birth to a baby girl and the defendant is the father, and their families have accepted the defendant's apology. (I am ignoring the comment also in the probation Report about 'Olivia's statement to her mother that Latu threatened to punch the defendant if he did not drive, because 'Olivia did not say that in Court.)

The probation officer recommends that the defendant be given a suspended sentence and that during the suspended period he is to attend the Ironman Ministry Rehabilitation program, and that the Court also considers community work.

The defendant is a first offender and this is to his advantage. His good character is also supported by his attitude to the matter as expressed in the probation report.

Previous court decisions

I am going to impose a suspended sentence of imprisonment together with community work and other restrictions. First I must deal with two Court of Appeal decisions where a suspended sentence was imposed in the Supreme Court but overturned on appeal.

The first of these is Rex v. Tofavaha, (CA 11/00, Ward CJ, Tompkins and Beaumont JJ, 21 July 2000). This involved a prison officer who was drinking with other prison officers and drove a motor vehicle, which crashed and killed an innocent party in another vehicle. The facts of that case however are very different to the present case. The defendant drove at a speed that frightened the female passenger and she asked to be allowed to get off the vehicle. At page 3 of the decision is this passage:

We must also disagree with the judge's suggestion that this was not a pre-meditated crime. The respondent and his companions chose to drink to excess and the respondent then drove. Even after the danger, of his actions had been pointed out to him by one to the passengers he continued to drive. He no doubt did not intend the result that ensued but he certainly should have realised that such an act was fraught with the gravest danger. ... He, more than most people, should have realised the consequences of his actions that night yet he behaved in a grossly irresponsible manner. Any person who kills another after choosing to drink and then to drive whilst affected by the alcohol must realize that he will go to prison.

Whilst the last sentence is undoubtedly correct and would apply in the great majority of cases, in this case there is a very reduced sense in which the defendant chose to drive at all. His decision was not to drive but he was persuaded otherwise by his companions despite his own endeavours.

In that case the Court of Appeal imposed a sentence of two years' imprisonment, which was not suspended.

The second case is Rex v. Holani (CA 6/2001, Ward CJ, Burchett and Tompkins JJ, 27 July 2001) and I refer to the majority decision given by Tompkins J. In this case - again a charge of manslaughter by negligence – the Supreme Court imposed a sentence of 18 months' imprisonment, which was suspended for two years, subject to conditions. On appeal the term of imprisonment was upheld but it was to be suspended only after six months of the sentence had been served. The conditions of suspension were amended.

Again, the facts of that case are very different to those before me. One of the passengers actually asked the respondent to stop driving but he continued going at a fast speed. He was driving both fast and recklessly and in an accident killed one person and seriously injured others.

That case can be distinguished for several reasons. First of all in Holani the driving occurred over a period of eight hours. In this case it was only a few minutes. Secondly in Holani the defendant drove at a high speed when his passengers were urging him to stop. In the present case the facts are almost the reverse. Thirdly in Holani it was pre-meditated offending in the sense that the defendant drove knowing that he was in an advanced state of intoxication. There was no pre-meditated factor in this case.

The Court of Appeal referred to the decision in Tofavaha. It did not quote the passage that I have quoted above, but a different passage, found at p. 3 of the earlier decision:

Whatever sympathy the judge may feel for the offender, he cannot escape the fact that an innocent young woman has lost her life as a result of the respondent's actions. The law has always regarded the killing of another person as extremely serious and the penalty must reflect that. There must be a place for sympathy when a court is passing sentence, but it cannot be allowed to supplant the duty to order a penalty appropriate to the facts of the offence.

Of course I accept that proposition in full but I say that the suspended sentence that I am going to impose is not one reached out of sympathy for the defendant but is the penalty appropriate to the unusual facts of this case.

Key factors in this case

The key factors that I rely on here in reaching a sentence are these. First of all, the very low level of personal blame. Secondly, the absence of previous convictions. Thirdly, the relative youth of the offender. Last is the defendant’s acceptance of personal responsibility and his strong remorse.

I have asked myself whether in the light of these facts it is necessary to impose a sentence of imprisonment at all, but I believe that what the Court of Appeal said in Holani at paragraph 21 is important. There the Court referred to the seriousness of this type of offence and the need for the court to impose a sentence to demonstrate clearly and beyond doubt to the community that where fatal injuries are caused by persons driving while intoxicated, a relatively serious penalty must be imposed. Therefore to emphasise the seriousness of this type of offence, and recognising the need for a deterrent sentence, I have concluded that a sentence of imprisonment is called for, but I believe that the four key facts that I have mentioned require in this case that the whole of the sentence of imprisonment should be suspended.

The sentence imposed

Will the defendant now stand because I am about to impose sentence.

Heneli Saafi, you are now sentenced to two years' imprisonment, which will be suspended for two years. There are three conditions of the suspending of this sentence. The first is that you carry out 120 hours of community service in accordance with the terms of the community service order now to be given to you. This requires you to carry out general cleaning and tidying work at the Ironman Ministry Centre. (The other conditions of that order are set out in the paper that will be given to you.) The second condition of the suspension is that you attend any Iron Ministry rehabilitation program recommended by your supervisor named in the order. The third condition is that you do not drive any motor vehicle for the next two years, and that if you wish to drive a vehicle after that you first obtain a driver’s license.

Do you understand the terms of your sentence?

Defendant: Yes, Your Honour.

The Community work order is now given to you in writing and in the Tongan language.

That completes the sentencing of this defendant.

NUKU’ALOFA: 27 August 2004

JUDGE