Rex v Tuputupu [2013] TOSC 20; CR310.2011 (5 November 2013)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 310 of 2011

REX

V

VATULELE TUPUTUPU

BEFORE THE HON. JUSTICE CATO

Mr Sisifa for the Crown
Mr Niu for the prisoner

SENTENCE

[1] The prisoner, Mr Vatulele Tuputupu was convicted of one count of causing death whilst driving on or about the 1st August, 2011, under the influence of alcohol, contrary to the provisions of section 26 A (1) and (2) of the Traffic Act. He had been found guilty by a jury of the charge after a lengthy trial and was convicted. Driving under the influence of alcohol for the purpose of this offence meant that he drove whilst the proportion of alcohol in him ascertained by a breath test subsequently undergone by him exceeded 250 micrograms of alcohol per litre of breath. In this case, his reading which I take for the purposes of this sentence was 420 micrograms per litre of breath.

[2] In the early evening, Mr Tuputupu had been requested by the deceased, who was his cousin, to transport her children to school. Mr Tuputupu gave evidence that he had earlier in the day attended the preparation of a feast for the coronation of the late King, and afterwards had consumed some alcohol. He was a senior member of the Ministry of Justice and indeed its deputy its deputy Secretary. He also gave evidence that he and one other who he drove home east to his home at Niutoua consumed a couple of stubbie bottles of beer from the half dozen they had earlier purchased. He also said that they each had one other bottle when they arrived at a destination near his home, and then procured a third of a bottle of whiskey from his home form which he had a couple of glasses. He said later he attended kava ceremonies at various churches in his town.

[3] He went and delivered the children by a different route from that which he had joined along when he returned home. On his return, the deceased was in the back of his car on the left hand side. There were two other children in the car. On the way home to Niutoua, he drove along the Taufa'ahau road through Lapaha. He had overtaken a driver who considered he was travelling in the vicinity of 70-80 km per hour. For his part, the prisoner denied he was travelling this fast but admitted to driving at about 60km per hour which was beyond the speed limit being 40 km per hour. For sentencing purposes, I find that his speed was excessive and relevantly so.

[4] Shortly after passing the fire station at Lapaha, the accident occurred. This is an area where road works had been carried out for some time and the road was not tar sealed. Mr Tuputupu, who was familiar with this area, said he had not been aware of road works and machinery working for about a month. It seems, however, that at some point road work had commenced and this evening, on the left hand side of the road was parked a large backhoe loader or plough with a truck behind it. I find as a fact, having considered photographs taken after the accident, that the plough blocked a good deal of the side of the road Mr Tuputupu was travelling on. It had not been parked immediately adjacent to the grass verge but the inner left side of the plough was parked about a foot to 18 inches on the roadway beyond the grass verge, and the width occupied a large part of the left hand lane in which Mr Tuputupu was travelling away from Lapaha. It was an obstruction which should in my view have been very clearly marked by advance warnings signs and lit. It was not. After the accident, a warning sign was placed 75 metres closer to Lapaha and cones were placed near the vehicle. Some lighting may have been placed on one of the vehicles also. I find that the positioning of the vehicle represented a significant hazard to road users and greater steps should have put in place to warn approaching drivers of the hazard.

[5] I directed the jury, following English precedent, R v Hennigen [1971] 3 All ER 133 (CCA per Lord Parker CJ) that the Crown did not have to prove that this driving was the sole cause of the accident or even a substantial or major cause. It was sufficient if it were established beyond a reasonable doubt that it was a material cause and not one which was inconsequential.

[6] The trial proceeded on this basis and Mr Tuputupu was found guilty. The jury plainly considered his driving was a material cause of the accident notwithstanding the obstruction. As I have said, having heard the evidence I have no doubt he was travelling at an excessive speed. Further, tests which were taken after the accident by the police revealed that he was driving with an alcohol intake 420 micro litres when the legal limit was 250. I consider that the verdict of the jury was not inconsistent with the view I take of the evidence that the plough was a significant hazard and a contributing factor.

[7] I am satisfied that the area in which the collision occurred was largely unit. There were no streetlights and the area was beyond the urban area of Lapaha emerging into a less populated area. Mr Tuputupu encountered a car travelling in the opposite direction coming towards him with its light on. The driver of that car said he had stopped because he appreciated that the oncoming car (that is Mr Tuputupu's vehicle) was travelling fast and he felt there was insufficient room to proceed. Mr Tuputupu said that he appreciated only that there was a hazard about 10-20 metres from it and then took evasive action. There could not have been very much room between the right side of the plough which blocked much of the left lane I have said, and the oncoming car which was stationary. The left side of his car came into contact with the right side of the rear of the plough causing that side of the car to swing around connecting with the plough and sheering much of the left side of the vehicle. The deceased, who was in the rear left side, suffered serious injury and died later. Mercifully, no other passengers, were injured.

[8] To Mr Tuputupu's credit, he did all he could to assist the deceased, removing her from the car, and assisting her as he and others took her to hospital. There, he was met by police, and when it became apparent that he was the driver and had been drinking, he was arrested, taken to the police station and there tested. His blood alcohol reading was 420, which is considerably higher that the proscribed statutory limit of 250.

[9] I was informed by Mr Sisifa that this is the first case involving sentence under the new legislation which was enacted in 2010. The maximum sentence for causing death whilst under the influence of alcohol is 15 years. Previously, cases of this kind would have involved prosecution for manslaughter by negligence which carries a maximum sentence of 10 years imprisonment. Indeed, that was the alternative count laid in this case by the prosecution. Plainly, parliament intended that those who cause death whilst under the influence of alcohol should be liable to uplift in punishment. The object is to deter drunken driving and punish more severely those who cause death whilst driving over he legal limit. That said, every case will turn on its facts but in ordinary circumstances that is where there are no matters that may have affected or contributed to the accident, as I find existed here I would fix a starting point of four years imprisonment. A number of comparables were placed before me by the Crown including cases on similar if not exactly equivalent provisions in other jurisdictions. It seemed to me a starting point of 4 years imprisonment was appropriate and neither Mr Sisifa not Mr Niu considered this was inadequate or excessive. That would seem to me to be a sentencing level that adequately reflects the intention of Parliament. Should the driving and circumstances be very bad, the level of alcohol very high, or should there be more than one person killed the starting point can be increased beyond four years, in an appropriate case. In cases where the offender has a history of drunken driving that may also be a factor justifying an increase.

[10] In this case, as I have said whilst I consider that the level of excess of alcohol and the excessive speed justified a starting consideration of four years imprisonment, I do not consider his driving in all the circumstances nor his alcohol level to be such that I should impose any higher starting point. As Mr Niu said in his evidence, the deceased, who as I have said was his cousin, had asked him to take her and the children back to school, which was not apparently uncommon for him to do. It was, obviously, a serious error of judgment on Mr Tuputupu's part to accede to her wishes when he had been drinking and it had tragic consequences; but I very much doubt that the deceased would have exposed herself or her children to his driving, had she detected that he was so drunk as to be incapable of driving. The journey to the school was a reasonably lengthy one and uneventful. The journey back was uneventful also until the time of the collision. In my view, 4 years is an appropriate starting point.

[11] As I have said, however, I consider that the unmarked plough was a significant contributing factor. I heard no evidence at what distance such a hazard would have been seen by a prudent sober driver in the circumstances Mr Tuputupu found himself that night. However, having said that, I have no doubt that had he been travelling within the speed limit and not seriously under the influence of alcohol, he would have been able to avoid the accident. Excessive speed, with reactions and judgment dulled by excessive alcohol materially played a major part in this tragic accident. He was unable to stop and allow the oncoming vehicle to proceed and then safely negotiate an overtaking movement of the hazard. Motorists must always be alert in Tonga to the fact that obstacles in or about the road are not uncommon. Having said that, I consider that fairness requires me to make some realistic assessment by way of reduction of the four year starting point, to reflect what I regard was a significant safety hazard. Further, I am fortified in this view by the fact that either the owners, the police or both were quick to put in place warning signs and cones and possibly lights shortly after the accident took place. Indeed, when the policecame later to take photographs of the scene, the photographs they took included the warning signs which were put in place. The extent to which the hazard had presented that evening was not apparent until I heard the evidence, at trial. I accordingly reduce the starting point in this case to one of two years and ten months imprisonment.

[12] By way of mitigation, I accept that Mr Tuputupu is contrite. From the outset, he did all he could to assist the deceased. He paid for the wake and funeral expenses of the deceased and some family members came from afar, from Niua. He sought and gained forgiveness from the family. Although his own person financial circumstances were reduced greatly to a subsistence income from farming, having been suspended from his government employment, he assisted the family of the deceased by payment to them of a regular weekly sum. The children I am advised, three of whom are still attending school, are living with an aged relative in Tongatapu and attending school. The father, who is also supportive of Mr Tuputupu is living with other children in Niua. Indeed, I have read reports of the family's attitude to sentence and their preference for a non – custodial sentence which allow Mr Tuputupu to continue their support. I address that issue below. Additionally, he has supported and obtained a scholarship for one of the children to further his education. I am told he has not touched alcohol since the accident.

[13] I have read glowing references for Mr Tuputupu who is aged 42 and is unmarried and lives in Niutoua with other members of his family. The references attest to his professional acumen, work ethic and commitment in Tonga and for Tonga, and his community support for a wide variety of organizations including church and sporting organizations. I have also heard able submissions from his counsel, Mr Niu. It is plain he is held in high regard in his community, in Tonga in the wider sense and in his local village of Niutoua where he spent much of his formative life. Having progressed with considerable educational and tertiary attainment, in Tonga and overseas, he continued still to live in and support his local community and family. There are many who use education as a means of personal advancement, often abandoning their roots and local community. Mr Tuputupu did not do this. To his credit, he has actively supported his local community and continued to do so in a variety of ways above his national commitments. I pause here to record the words of one referee, the Deputy Prime Minister, the Honourable Samiu Vaipulu, who wrote amongst other things of his contribution to Justice;

"It didn't take long to appreciate the skills, commitment, and efforts of Mr Tuputupu in steering clear the administration of Justice in Tonga amidst the heavy – laden load, deadline rush, and the many and often constant challenges – technical, human resource and financial.

Such quality have since left an impression on me, even though his involvement in that fatal accident is very unfortunate – the door is still open. I hold him in high regard, and would be very happy to re-employ him."

Other speak also of his standing in the Tongan community and in his local community. He is a man of good character who has made a significant contribution to Tongan life. I hope that he will continue, and be allowed to continue to make a contribution in the future to Tongan life in a national and local community sense. He should be given every opportunity to rehabilitate himself and progress further with a life which, until this incident, had been one of industry, contribution, dedication and achievement. For all the matters I have mentioned, I mitigate the starting point of four years by a further 12 months making his sentence for causing death whilst driving under the influence of alcohol a sentence of one year and ten months imprisonment.

[14] I consider that Mr Tuputupu is well worthy of rehabilitation and a partially suspended sentence. I do not consider, however, that I should in the public interest allow a fully suspended sentence given his elevated alcohol level and the fact that his passenger died. That would be to send out the wrong message to the community and indeed undermine the deterrent message that Parliament has sent to the community concerning driving and the consequences of doing so whilst under the influence of alcohol. I must respect that plain intention. Mr Sisifa indicated also his opposition to this approach and I consider his submission is correct. Whilst there was support amongst the family of the deceased, (several of the children and family appearing in court) and others for a fully suspended sentence so that he could continue to work and assist others in the community, the countervailing public interest consideration allows me only to partially suspend his sentence. I suspend the final 12 months of his sentence on condition that he commit no crimes punishable by imprisonment for a period of two years.

[15] I also acknowledge the very helpful probation report I was given in this case which supplemented the references and other material I have read.

DATED: 5 NOVEMBER 2013
JUDGE