Rex v 'Inia [2016] TOSC 16; CR29.2015 (9 May 2016)

IN THE SUPREME COURT OF TONGA CR 29 of 2015
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
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BETWEEN: R E X - Prosecution

AND: MALOLO ‘INIA - Defendant

BEFORE THE HON. JUSTICE CATO

Counsel: Mr. ‘Aho for the Prosecution

Mr. W. C. Edwards SC for the Defendant

S E N T E N C E

[1] The prisoner, Mr Maololo 'Inia, appears for sentence on one count of causing death whilst under the influence of alcohol contrary to section 26 A of the Traffic Act and 2 counts of causing bodily injury whilst driving under the influence of alcohol contrary to section 26 A of the Traffic Act. He defended these charges in a trial which commenced on the 7th March and ended in a verdict of guilty on all charges delivered on the 11th March, and convicted accordingly.

[2] The evidence established that on the 1st January 2015 at approximately 2.00pm the accused was driving along the Bypass Road at Ma'ufanga in a southerly direction. He was later found to be driving with an excessive level of alcohol of 480 micrograms of alcohol per litre of breath.

[3] It was a fine day and at about 2pm the vehicle went off the road and hit first two pedestrians who were on the roadside and then proceeded to crash into the deceased's building and hit the deceased who was standing near her building. The vehicle came to a stop in the vicinity of the deceased's building. The bystanders were not seriously injured but received medical treatment. The deceased died in hospital from a fractured skull, with haemorrhage and cerebral oedema.

[4] It was not very clear at all to me as to why the prisoner on what was a clear sunny day on a straight piece of road with no apparent other road traffic had lost control of his vehicle. However, it was plain beyond any reasonable doubt that the elements of the offence of cause death and bodily injury had been made out and so I convicted. At sentence, Mr Edwards produced a police statement from a witness to say that a young person had crossed the road shortly before the incident and this had in effect caused the prisoner to break heavily, causing the car to spin and the driver to lose control as the car left the road. This evidence had not been produced at trial and so I inquired of Mr Aho whether the Crown accepted that this might well have been a material reason for the prisoner to commence the action he did leading him to lose control with such tragic consequences. Mr Aho rightly in my view accepted this was the case. That did not alter or impugn the conviction but it is a factor for me to take into account on sentence.

[5] In my view, an appropriate starting point for offending of this kind where death is involved is about five years based on the comparable figure of five years for rape which also carried a maximum sentence of 15 years in Tonga. Recently, in CR 108 of 2015 R v Vaka Fanua 21^st April 2016 I said in a case of reckless dangerous driving speed and manner resulting in death under section 25(5) of the Traffic Act, that the starting point would be about four to five years based also on the comparable starting point for rape. It is clear that in providing for higher maxima sentences under the 2010 Amendment to the Traffic Act, Parliament directed the Courts that cases of serious culpable driving involving death particularly were to be given higher sentences than formerly had been the case in manslaughter by negligence cases where the maximum is 10 years imprisonment. In my view, an appropriate starting point for driving whilst under the influence of alcohol and causing death is 5 years imprisonment. This starting point must reflect the serious of the offending and the public interest in securing the safety of other members of the public and be fixed at a level which fairly reflects this so that drivers are deterred from operating motor vehicles when intoxicated.

[6] Mr Aho submitted that the level of intoxication here was high and I agree with him. He submitted this was an aggravating feature and I agree with that submission also. The amount was a breath level that was nearly double the statutory permissible level of 250 micrograms of alcohol per litre of breath. Mr Edwards explained that his client had been drinking the night before but on the day in question whilst cooking the New Years meal he had had more beer and had effectively unwittingly topped up from the previous day's drinking. He had left the house to pick up a friend who lived not far away when the accident happened. He in an attempt to mitigate suggested the prisoner did not appreciate that he was so intoxicated, but whilst that might be so, the prisoner assumed the risk of being so and he must, I consider, have known he had consumed alcohol to the point where he should not be driving, and he should not have driven. I consider the starting point should be increased by 6 months. In cases of higher concentrations, the period of aggravation can be higher.

[7] I now consider an appropriate overall starting point in this case taking in to account the fact that the prisoner's actions were precipitated by somebody crossing the road. It is difficult to assess because know very little about what actually occurred and whether a sober driver notwithstanding the unexpected intervention of the young person could have safely taken steps to avoid causing an accident. A person's ability to react to and avoid unforeseen contingencies when driving drunk is obviously lessened by alcohol consumption. I allow him, however, 12 months deduction from the overall starting point of five and half years, making an effective starting point here of four and half years imprisonment.

[8] By way of mitigation, he does not have the advantage of a guilty plea. However, he is a first offender and I am satisfied otherwise is of good character. He is aged about 31, married with three young children and formerly ran a successful export business. His wife now carries the burden of looking after the children and providing for them out of her earnings. He asks for leniency because of her circumstances but unfortunately often secondary victims of offenders are their own family who have to suffer the consequences of their imprisonment so there is only limited mitigation I can allow for this. More importantly, albeit that he chose to defend, I am satisfied that he has remorse for what he has done and he has taken steps I am told, and the Crown did not disagree, to apologise to the deceased's family. He has paid for travel arrangements for the funeral and the children's education. In all I am told he has spent about $8000.00. I was told he had suffered; losing his business and also having now the ongoing strain of living with the knowledge his driving had killed someone. These last matters however, are natural incidents of his offending, and are not properly matters of mitigation. In these circumstances, I allow him mitigation of 18 months imprisonment. The sentence on the charge of causing death whilst driving under the influence is three years imprisonment backdated to his remand in custody for which he has been convicted.

[9] On the question of suspension, Mr Edwards approached this by acknowledging he had to spend some period in prison but only a year, he submitted, and I should suspend the rest. He is plainly entitled to part of his sentence suspended, but I do not accede to Mr Edwards submission that one year is sufficient. He had a high breath reading and his driving killed an innocent bystander. To accede to Mr Edwards robust submission would be in my view to send the wrong message to the Tongan public, and to, indeed, diminish the plain directive of Parliament which is that the Courts adopt a more severe approach in driving cases particularly where death is involved. As I have said in Fanua, "The sentences must serve as an example to others to ensure the security or safety of the public and to properly reflect the fact that a person has died or suffered serious injury. "I do not think that an actual term of one years imprisonment, as Mr Edwards' submitted for causing death whilst under the influence of alcohol meets this concern. In this case I am however, prepared to suspend the final year of his imprisonment on the following condition;

1. That he is to commit no further offences punishable by imprisonment during the period of his suspension.
   

Mr Edwards assure me that he did not have a drink problem and so I make not order for counseling associated with his suspension.

[10] On the other charges of causing bodily injury whilst driving under the influence of alcohol, he is convicted and I sentence him to 12 months imprisonment on each count of causing actual bodily harm whilst under the influence of alcohol to be served concurrently with his sentence on count one. Had the injuries been more severe, the prisoner risked either the sentence on count one being increased to reflect this or at least part of the sentences on these counts being accumulated. In all the circumstances, I do not think it is appropriate to do this and the Crown has not sought any additional penalty.

[11] On the question of disqualification, I disqualify the prisoner from driving for three years from today's date.

C. B. Cato
DATED: 9 MAY 2016 J U D G E