R v Manu [2020] TOSC 82; CR 86 of 2020 (23 October 2020)

IN THE SUPREME COURT OF TONGA CRIMINAL JURISDICTION NUKU’ALOFA REGISTRY CR 86 of 2020
REX -v- LEMOTO LEMEKI MANU

SENTENCING REMARKS

BEFORE:	LORD CHIEF JUSTICE WHITTEN
Appearances:	Mrs ‘A. Aholeilei for the Prosecution Defendant in person
Date of sentence:	23 October 2020

The offending

1. The Defendant appears for sentencing on one count of causing death while driving under the influence of alcohol contrary to s.26A(1) of the Traffic Act (Cap 156).^[1]

Background

2. This is a most tragic case.
3. On 15 May 2019, in proceeding CR 122 of 2018, a trial commenced before Cato J in which the Defendant was charged with one count of grievous bodily harm. After the evidence of the first Crown witness, the Defendant changed his plea to guilty. On 6 September 2019, he was sentenced to four and a half years imprisonment. That sentence was backdated to the date of remand which presumably was 20 May 2017 (the date on which the offence occurred in a police holding cell). Cato J also ordered that, pursuant to s.67 of the Mental Health Act, the Defendant was to be detained at the mental health facility at Vaiola Hospital under the care of Dr Puloka and that should Dr Puloka consider the Defendant fit to be transferred to the mental facility at the prison, he may consult with the Commissioner of Prisons to determine whether the Defendant should be transferred to that facility. Attached to the sentence was a copy of a report by Dr Puloka dated 3 May 2019 opining that the Defendant was then fit to stand trial.
4. Those orders emanated from the Defendant's long-standing mental disorders. He is now 34 years of age. According to the probation report, he was identified at an early age as suffering a mental disorder. His mother explained to the probation officer that the Defendant was born with unstable health conditions. They were first diagnosed when he was six months old. Later in his childhood, he started to show extreme mood swings through angry outbursts at seemingly nothing at all and he sometimes behaved irrationally. His mother said that if the Defendant becomes angry when he is not on his medication, he is uncontrollable; and, when he is too overjoyed, he experiences hallucinations and delusions. She also said that when he the Defendant is on his proper medication, he is "very quiet, non-violent and stress-free". She also noted that the Defendant’s mental illness is greatly exacerbated when he is exposed to alcohol and drugs.
5. The Defendant’s education comprised only 2 to 3 years of primary school.
6. The Crown’s sentencing submissions include an account obtained from the older brother of the 46 year old deceased victim. In an endeavour to understand how the incident occurred, the brother approached Dr Puloka and asked why the Defendant was out of the psychiatric ward at the hospital on the day in question. Dr Puloka told him that the Defendant was in his custody but that around December every year, the psychiatric ward is inundated with more patients than it can accommodate. That requires the hospital to release some of the inpatients whom the medical staff assess as representing a low risk. In 2019, and notwithstanding he was serving a sentence for grievous bodily harm, the inpatients released included the Defendant. There is no information before the court explaining the basis for the decision to release the Defendant. The doctor stated that this practice had been adopted several times in the past with no adverse results.
7. In the presentence report, the Defendant told the probation officer that although he did not have a full recollection of what occurred on the day in question, he did remember being discharged from the psychiatric ward at the hospital just before Christmas 2019.
8. On 28 December 2019, the Defendant returned to the psychiatric ward and collected three other mental patients without the permission of their doctor in charge.
9. The summary of facts then picks up the account of what occurred. Around 3 PM on 28 December 2019, the accused and his mental health companions began driving around whilst drinking Tongan alcohol brew known as “hopi”. By around 9 PM, it was raining heavily. The Defendant was driving their vehicle west on Vuna Road. According to the front seat passenger, the vehicle was speeding and swerving across the road. When they reached Prince Kalaniuvalu’s residence, the passenger could see a small white car parked ahead on the left side of the road. In it, unbeknownst to the occupants of the speeding vehicle, the victim was buying tomatoes from a nearby vegetable stall. As he held money out his car window for the seller, the Defendant's vehicle swerved over the sidewalk and collided with the rear of the victim's vehicle. According to eyewitnesses, the Defendant’s vehicle was estimated to have been travelling at between 80 and 100 km/h.
10. As a consequence of the impact, the victim's vehicle was propelled into the concrete fence of the Chinese Embassy. The Defendant then drove off. Bystanders attended to the victim and carried him out of his vehicle. He was not responding. He was observed to have suffered head injuries signified by bleeding from various wounds. The victim was then rushed to the hospital but was declared dead on arrival. The cause of death was determined to be a C-spine fracture 2° severe whiplash and a head injury with internal bleeding.
11. The Defendant told the probation officer that his last recollection of that day was being at the American wharf. He woke up the next morning and found out that someone had died because of him. According to the summary of facts, the police arrived at the scene and found the Defendant's vehicle facing north of yellow pier. They tried to speak to him, but he was too drunk. Therefore, the passive test could not be conducted at the scene. The Defendant was arrested and taken to Central Police Station where a breath alcohol screening test showed a result exceeding 250 µg. The police continued with the evidential breath test which produced a result of 1,210 µg of alcohol per litre and later, 940 µg. The Defendant was then remanded in police custody.
12. On or about 2 January 2020, he was interviewed by police and admitted to the offending.

This proceeding

13. The Defendant was first brought before the court on this matter on 12 May 2020. Mr ‘Aho, who appeared for the prosecution, very responsibly suggested that in light of the last known medical report by Dr Puloka being issued on 3 May 2019 in which he opined that the Defendant was then fit to stand trial on the grievous bodily harm charge, it would be prudent for an updated mental health assessment to be obtained from Dr Puloka. Accordingly, orders were made pursuant to s.63 of the Mental Health Act for that further psychiatric report.
14. On 25 May 2020, Dr Puloka reported on his psychiatric assessment of the Defendant. He found that the Defendant was then suffering from a hypomanic episode with poor insight into his psychiatric condition. Dr Puloka opined that the accused was not then fit to stand trial. He requested an extra four weeks within which to treat the accused's hypomanic episode.
15. On 30 June 2020, Dr Puloka opined that the Defendant was no longer suffering from the hypomanic episode and was “in full remission of his psychiatric clinical condition” and that he was fit to plead to the current charge.
16. On 31 July 2020, the Defendant was arraigned and pleaded guilty to one count of causing death while under the influence of alcohol. The matter was then adjourned to 3 September 2020 for sentencing.
17. On 1 September 2020, after considering the presentence report, which provided some insight into the Defendant’s long history of mental illness, and the Crown’s submissions on sentence, which contained an account of the victim’s brother’s conversation with Dr Puloka, I raised with the Prosecutor in chambers the possibility of whether any defences relating to insanity under s.17 or s.21(2)(b) of the Criminal Offences Act should be investigated. One of the other issues which prompted that concern was that it was not known whether, in the previous proceeding before Cato J, any question of a possible defence of insanity was considered prior to the Defendant being convicted and sentenced. Mr ‘Aho agreed to those issues being examined. To that end, directions were made requesting a further report from Dr Puloka which specified questions drawn from the aforesaid provisions aimed at eliciting his professional opinion as to whether, at the time of the offending, the Defendant was legally insane, temporarily or otherwise.
18. On 25 September 2020, Dr Puloka provided a report of his further examination of the Defendant. He catalogued a long history of various physical and psychiatric ailments from a cyanotic episode when the Defendant was only two days old, to mild mental retardation, to mental and behavioural disorders associated with substance abuse and, most recently, a diagnosis of bipolar affective disorder. A Mental Status Examination was conducted which revealed that the Defendant was in almost full remission from his previous psychiatric diagnoses.
19. The Defendant told Dr Puloka that, at the time of the offending, he was very drunk. Just before the collision, the Defendant was in a state of euphoria secondary to the alcohol consumption and persistent encouragement from the other patients for him to continue speeding. After being initially surprised by the deployment of the vehicle’s airbag upon impact, the Defendant knew he had caused an accident. He said he continued driving to the wharf because he remembered the car’s fuel tank was full. Dr Puloka observed that although the Defendant’s memory was ‘a bit patchy’, he generally knew what he had done and that it was wrong. On that basis, Dr Puloka opined, relevantly, that:

"... during the time of the commission of the offence the accused was unlikely to be legally insane within the meaning of section 17 and section 21(2)(b) of the Criminal Offences Act..."

and that

"... the accused is able to plead in court".

20. Accordingly, I was satisfied that any potential defence of legal insanity was not open and the Defendant's guilty plea was confirmed.

Starting point

21. The maximum penalty for the offence is 15 years imprisonment.
22. The Crown has identified a number of aggravating features of the offending, including, most relevantly, that the offence was committed when the Defendant was serving a sentence for grievous bodily harm; the high level of intoxication and speed involved indicate a high degree of recklessness; the Defendant left the scene of the collision; other passengers could have been injured (the material does not explain what happened to them after the Defendant parked the car at the wharf); the driving caused the death of the innocent victim; and no apology has been offered to the family of the victim who are likely to be affected by the tragic loss of their loved one for the rest of their lives.
23. The only mitigating feature is the Defendant’s early guilty plea.
24. The Crown submits a number of comparable sentences, which are summarised as follows:
    • (a) Samiu Fainga’anuku, CR 52/16 (unreported, 13 June 2016) – guilty plea; 4 years and 3 months imprisonment; final 18 months suspended for 2 years on conditions; disqualified from driving for 3 years.
    • (b) Mafoa’aeatu Latu, CR 19/18 (unreported, 17 August 2018) – guilty plea; apology offered and reconciliation with the deceased victim’s family through provision of food, artifacts and cash; Paulsen LCJ set a starting point of 5 years and 6 months which he considered as lenient but set as a result of the pleas of the victim’s family for leniency; after mitigation, sentenced to 3 years and 3 months imprisonment; last 15 months suspended for 2 years on conditions; disqualified from driving for 3 years from date of sentence.
    • (c) Vilisoni Finau, CR 154/18 (unreported, 31 May 2019) – convicted upon trial; Paulsen LCJ set a starting point of 5 years; mitigation for previous good record and attempted amends showing remorse resulted in a discount of 9 months; therefore sentenced to 4 years 3 months; final 12 months suspended on conditions; disqualified from driving for 3 years from the date of sentence.
    • (d) Manoa Pahulu, CR 2/19 (date not provided) – convicted by Cato J; sentenced to 4 years backdated to date of remand; final 18 months suspended on conditions.
    • (e) Vitalini Lafaele Liku’ohihifo, CR 77/19 (unreported, 14 June 2019) – early guilty plea; original charge of causing death whilst driving under the influence was downgraded to reckless driving causing death; starting point of 3 years said to be less than the usual 4 to 5 years (presumably for the original charge); reduced by 15 months in mitigation for guilty plea, remorse, apology, compensation and previous good record; remaining sentence was fully suspended on conditions.
25. The above comparable sentences are clearly distinguishable by reason, at least, that the Defendant here has a long history of mental disorders and that he committed this offence while serving time for grievous bodily harm.
26. The victim had an ex-wife who now lives in the USA. He leaves behind a number of children. His brother described how a very successful business established by the victim with his brother as operating manager and others has suffered from the loss of the victim to the point where it is now financially struggling. Without other support, it too is not expected to survive. How much of that reversal of fortune might also be due to other factors such as the coronavirus pandemic was not explored.
27. Despite the Defendant not offering any apology to the victim’s family, the victim’s brother is reported to harbour no ill feelings towards the Defendant because of the latter’s mental disorder.
28. In relation to an appropriate sentence, the Crown submits that:
    • (a) the sentence in this case must deter others from driving in the manner of the Defendant which led to the death of an innocent road user;
    • (b) the starting point should be 5 years imprisonment as adopted in Finau;
    • (c) 9 months should be deducted for the Defendant’s early guilty plea; and
    • (d) having regard to the considerations in Mo’unga v Rex [1998] Tonga LR 154, no part of the resulting sentence should be suspended.
29. The Crown also filed supplementary submissions in relation to the circumstances surrounding the grievous bodily harm sentence. Suffice to say that they paint a vivid picture of extreme violence by the Defendant which left the victim there in a vegetative state and which has rendered him dependent on the support and care of his family, likely for the rest of his life. It was submitted that if the Crown’s suggested net sentence of 4 years and 3 months is imposed for the instant offence, the totality principle called for 3 ½ half years of that sentence be added to the current term for the grievous bodily harm (making a total of 8 years).
30. I must confess to some difficulty in reconciling the starting points adopted in the above decisions of circa 5 years imprisonment (or less) against the maximum statutory penalty of 15 years and the ultimate seriousness of the result explicit in the statement of the offence itself, namely, death. The answer may lie in the nature of the mens rea involved in this type of offence. However, when compared to, for example, grievous bodily harm or manslaughter by negligence, which carry a maximum penalties of 10 years imprisonment, it is clear that Parliament intended that causing death while driving under the influence should be viewed more seriously and with more severe responses in sentencing. Another possible explanation is the general approach in the Kingdom, particularly for first offences, of setting a starting point at around one third of the maximum statutory penalty.^[2]
31. Those observations pose natural rhetorical questions about the present offence, such as: In what circumstances might such an offence attract a sentence toward the upper end of the range to 15 years? Might it involve drink driving which resulted in the deaths of a number of persons in one or possibly more incidents? The measure can hardly be determined by the concentration of alcohol involved which is prescribed in the Act as anything over 250 micrograms. Another possible variable may be whether the offender has previous convictions for the same offence. Yet another consideration referred to in the cases is whether the Defendant was unlicensed at the item of the culpable driving. Here, there is no evidence in relation to that one way or the other.
32. In the decision of R v Finau, referred to above by the Crown, and which is to be found at media neutral citation: [2019] TOSC 22, Paulsen LCJ stated:

“[8] The maximum sentence for this offence indicates the Legislature's intention that sentences should reflect the fact that very serious cases involving violations of traffic laws resulting in death should result in longer sentences of imprisonment (R v Fanua [2016] Tonga LR 208, Cato J). In Fanua Cato J said at [6]:
‘I consider that Courts, in cases of reckless driving where a death or serious injury results must impose sentences which deter others from driving in this manner and causing death or injury to other members of the public. 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 injury.’”

33. In that case, His Honour had regard to a number of authorities^[3] in adopting a starting point of 5 years imprisonment, which was accepted as appropriate by both Prosecution and Defence.
34. Further, in Fanua, Cato J held:

“[4] I was informed by the Crown that this is the first case concerning sentence by this provision of the Traffic Act as amended in 2010 for reckless driving where the elements consist of speed and driving in a manner dangerous to the public, rather than being an offence of causing death or serious injury under the influence of alcohol. Parliament imposed a 15 year maximum for reckless driving causing death, as it did for excess alcohol causing death. Formerly, cases such as this would have been the subject of manslaughter by negligence which carried a sentence of ten years imprisonment. ... In my view, this was a clear indication by Parliament that sentences should reflect the fact that very serious cases involving violations of traffic law resulting in death should result in longer sentences of imprisonment. In the absence of a discreet offence of careless driving causing death, the Crown may consider manslaughter by negligence to be an appropriate alternative to the more serious charges now available under the Traffic Amendment, 2010 where death arises.

[5] I consider, by comparison with rape cases where the maximum sentence is 15 years imprisonment also and Court of Appeal has stated that the starting point should be five years, a starting point for this offending should be between 4 to 5 years imprisonment. In cases involving highly dangerous driving, where there are multiple victims, or other aggravating circumstances, the starting point may be increased. Here, in my view, there were aggravating features; first the driver was unlicensed and drove accordingly in wilful disregard of the law, his inexperience being I have no doubt a material factor in the accident, and secondly, he further made off from the scene without rendering assistance. Both counsel agreed with me that these were aggravating features, at least in principle. The prisoner said in his record of interview to the police that he did not remain because he was scared. However, having inquired of Mrs Langi about the driver’s condition and assistance given to him at the scene, I am satisfied that an ambulance arrived within a very short time anyway so I do not propose here to treat this as an aggravating factor.

[6] I consider that Courts, in cases of reckless driving where a death or serious injury results, must impose sentences which deter others from driving in this manner and causing death or injury to other members of the public. 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 accept Mr Taufateau’s submission however, here that, whilst reckless (and in this case as particularised dangerous) driving was established, the circumstances of the driving was at the lower end of this offending. In my view, the starting point should be four years imprisonment with an additional 6 months imposed as an aggravating feature because he had chosen to drive without a licence. I have no doubt as I have said, that his inexperience and lack of training was a material factor in his losing control with the tragic consequences that followed.”

[emphasis added]

35. In Rex v 'Inia [2016] TOSC 16, the Defendant caused death while driving with a level of alcohol of 480 micrograms of alcohol per litre of breath. Cato J considered the appropriate starting point by comparison to the comparable figure of five years for rape which also carries a maximum sentence of 15 years in Tonga, and held:^[4]

“...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[ness] 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.”

36. In the New Zealand decision of R v Fallowfield [1996] 3 NZLR 657, the Court of Appeal stated that for accidents involving serious injury, the Courts needed to reflect the trend which showed an increase in the level of sentences where death has resulted. This course was a necessary recognition of a significant social problem that was increasingly unacceptable in the community. The Court held that:
    • (a) the preferable approach to sentencing for cases of alcohol-affected driving causing injury or death was to place the offending in its proper position on the scale of seriousness of offending, whatever the charge;
    • (b) there could be no fixed tariff as the offence of causing injury or death while driving under the influence of alcohol covered too wide a range of circumstances. It encompassed acts or omissions from momentary inattention to gross recklessness, with consequences from minor injury to death;
    • (c) however, where the consumption of drink or drugs was heavy, the driving reckless or worse and the consequences serious, terms of imprisonment of up to three years (more in very bad cases) should be expected. If the offender was also a disqualified driver it would call for an increase in sentence to mark the willfulness of the conduct and the disregard for a Court order;
    • (d) the deliberate use of a motor vehicle after drinking, especially after long bouts of heavy drinking, contained an element of willfulness that was repugnant and showed disregard for the law and for the safety of others. This took on an added dimension which compared to other offences such as wilful wounding which carried substantial terms of imprisonment, up to five years; and
    • (e) although causing death made an offence more serious the consequences were only one aspect to be taken into account in assessing culpability for sentencing purposes.
37. Having regard to:
    • (a) the above decisions and statements of principle;
    • (b) the seriousness of the offending, which involved highly excessive alcohol and speed, resulting in the death of an innocent man and the dramatic, emotional and financial effects of many other lives around his;
    • (c) the requirement of deterrence for others who might contemplate drink driving with its attendant risk of causing loss of life; and
    • (d) the interests of parity,

I accept that the base starting point in cases of this kind should be 5 years imprisonment.

38. However, in this case, by reason of the following circumstances of aggravation:
    • (a) the offending occurred while the Defendant was serving a sentence for a very serious grievous bodily harm;
    • (b) the Defendant left the scene of the collision and did not seek to render assistance to the victim (even though he was probably deceased upon impact); and
    • (c) the duration of the driving while drinking alcohol, over some 6 hours, demonstrated an element of wilfulness that was repugnant and showed disregard for the law and for the safety of others; and
    • (d) lack of any demonstrated remorse^[5] towards the family of the victim,

I consider that the starting point should be increased to 7 years imprisonment.

Mitigation

39. For the Defendant’s early guilty plea, I reduce the starting point by 18 months to result in a sentence of 5 years and 6 months imprisonment. That sentence reflects, as it should, some proportionate uplift on the previous sentence of 4 ½ years for grievous bodily harm.
40. I have also given careful consideration to whether any further reduction for mitigation ought be allowed on account of:
    • (a) the Defendant’s history of mental disorder; and/or
    • (b) the circumstances which led to the release of the Defendant from the hospital during the period in question, during which, he was able to commit this offence.
41. There is no evidence that the Defendant’s mental disorders caused or contributed to him driving in the manner he did that fateful day. In fact, there is no evidence to be found within any of the reports by Dr Puloka that the Defendant was suffering any of the psychological or psychiatric symptoms he had displayed prior to and since then which might explain the driving. On the other hand, it is abundantly clear that the reckless driving which resulted in the collision was due, at least to a significant extent, to the Defendant consuming alcohol over a long period and while driving the car. There is no suggestion that his mental disorders caused or contributed to him drinking in the manner that he did, although the description by the Defendant’s mother as to the effects of his condition when exposed to alcohol or drugs would tend to permit of the possibility that his mental state while driving may have been affected by other than the influence of excessive alcohol. I suspect that would depend on whether he was on his medication on or around the day in question. The questions of Dr Puloka on 1 September 2020 were directed, among other things, to whether the effects of intoxication and the Defendant's mental diseases could have rendered him insane, temporarily or otherwise. As noted above, Dr Puloka opined that that was unlikely to be the case.
42. As extremely unfortunate as the circumstances which led to the Defendant being released are, I do not consider it appropriate to discount the sentence to be imposed any further by reason of the decision of the hospital in December 2019 to release him and other mental patients due to lack of facilities. It should be clearly understood that the results of the Defendant's actions cannot in any way be attributed to the very difficult decisions the medical staff at the hospital were forced to make in response to pressures for which they are not responsible. If anything, the fact that the Defendant was released by the medical staff would tend to suggest that, at that time, his mental disorders were considered to be relatively under control. That would seem consistent with his mother's description of him when he is "on his medication”.
43. While it might be superficially attractive to suggest that had the Defendant not been released from the hospital, this tragedy would not have occurred, it is in my view more useful to consider the underlying cause for his release. Government funding for the mental health sector in Tonga is an ongoing challenge. This case is an extremely tragic illustration and reminder of the effects on individuals and the community at large when this aspect of public health is not adequately resourced.

Suspension

44. Having regard to the considerations for suspension discussed in Mo’unga:
    • (a) I do not consider the Defendant is capable of responding to a deterrent without ongoing medical and pharmacological treatment and supervision;
    • (b) at 34, the Defendant is not particularly young;
    • (c) any credit for his lack of criminal record prior to 2019 is eclipsed by him committing the present offence while serving his sentence for grievous bodily harm which was committed in 2017;
    • (d) in terms of any reduced culpability, as noted above, there is no evidence that the Defendant’s mental disorders caused him to commit this offence. Further, even if that were the case, suspension alone would be unlikely to be an adequate response without conditions such as the Defendant being kept under the supervision of the medical staff at the hospital during any period of suspension. That is something I will address in the final result.
45. Those factors against any suspension outweigh the fact that the Defendant cooperated with the authorities.
46. In Vake [2012] TOCA 7, the Court of Appeal referred to its decision in Misinale [1999] TOCA 12 in which it was said that the relevant considerations may also include:

" ... the seriousness of the offending, the need for an effective deterrence, the effect on the complainant, and the personal circumstances of the offender or those dependent on him."

47. In considering whether to suspend any part of the sentence, and in addition to the above, I have also sought to give “weight to public denunciation and outrage and to the need to stop or control conduct which detrimentally affects all members of the community”. On the other hand, I have also had regard to the consequences of the sentence on the Defendant and to the wider community.^[6]
48. In CR 122 of 2018, Cato J did not suspend any part of that sentence for grievous bodily harm.
49. On balance, I consider that in his current mental condition, and in the absence of any evidence that he is likely to be ‘cured’ permanently of his various psychiatric and psychological ailments in the foreseeable future, or any indication as to his risk of relapse from any periods of remission and the effects thereof, the importance of safeguarding the community outweighs any consideration of suspension of any part of the sentence for the purposes of offering an opportunity for rehabilitation. I also do not consider that suspension, without adequate supervision, could ensure the future safety and well-being of the Defendant himself. Those aims are likely better served by the Defendant remaining under the care of the medical professionals who have been treating him to date.
50. For those reasons, I do not consider it appropriate to suspend any part of the sentence to be imposed.

Totality

51. The Crown’s submissions on totality did not expressly take into account that Cato J’s sentence of the Defendant for grievous bodily harm was backdated to the date of his remand on that charge. As best I can calculate, that was likely to have been on or about 20 May 2017 (when that offence occurred whilst on remand in the police cells). Therefore, but for this sentence, the Defendant would be scheduled for release on or about 19 October 2021.
52. If the sentence here of 5 ½ years is similarly backdated to the date of his arrest and remand in custody on or about 28 December 2019, the Defendant will be eligible for release on or about 27 June 2025. That partial overlap of the two sentences will effectively result in a period of 3 years and 8 months (or 44 months compared to the Crown’s suggestion of 3 ½ years or 42 months) in addition to his current sentence for grievous bodily harm.
53. I have had regard, to the extent it is applicable to the current task, to the sentencing principle of totality discussed in decisions such as Kolo v Rex [2006] TOCA 5 and, more recently, R v 'Asa [2020] TOSC 72. The principle usually requires a court, when sentencing a Defendant for more than one offence, to have regard to the totality of the offending, particularly where the offences are a series of related offences, whether the offences were so closely connected that they should be regarded as part of the one course of criminal activity and whether, in any event, the sentences should be made, wholly or partially, concurrent. The accumulation of sentences ought not result, unless there is no alternative, in a total which is a crushing first period of imprisonment. Where, as here, two sentences are under consideration by two different courts and at different times, the principle applies to the later of the two courts, whether or not within the same jurisdiction, where the sentences are imposed by different judges: R v MacDonald (1990) 52 A Crim R 349 at 351-352. The final duty of the sentencer is to make sure that the totality of consecutive sentences is not excessive: R v Bocskei (1970) 54 Cr App R 519 at 521.
54. The instant offence is not related to the earlier grievous bodily harm, whether by time, victim or other circumstance. Over a period of some 2 years and 7 months (i.e. May 2017 to December 2019), the Defendant caused grievous bodily harm to one person who is expected to be seriously affected by the attack for the rest of his life, and, during his term of imprisonment for that, caused the death of another by driving under the influence. For those crimes, he will now be required to serve a total of just over 8 years imprisonment. Like Cato J in Rex v Tupa [2017] TOSC 35, having regard to the nature and seriousness of the offences, I do not consider the extent of the additional time to be served for this offence upon the expiration of the current sentence for grievous bodily to be excessive, or that the overall sentences should be regarded as ‘crushing’. In my view, the overall result is an appropriate response to the Defendant’s recidivism, his contumelious disregard of the law and his demonstrated danger to the community and himself.

Result

55. The Defendant is convicted of causing death while driving under the influence of alcohol and sentenced to 5 years and 6 months imprisonment.
56. The sentence is to be backdated to the date of his arrest for the offence.
57. Pursuant to s.67 of the Mental Health Act, I order that during the term of his sentence imposed in this proceeding, the Defendant shall:
    • (a) be kept under the medical supervision of Dr Puloka (or other mental health physician at the Vaiola hospital);
    • (b) if considered necessary by the said physicians, be transferred to and detained at the Vaiola hospital psychiatric unit such time as his physician may consider the Defendant to be fit to be transferred or returned to the mental facility at Hu’atolitoli Prison; and
    • (c) continue to receive such mental health treatment and/or medication as prescribed by the said physicians.
58. The Defendant is disqualified from holding or obtaining a driver's licence for a period of three years from the date hereof.
    

NUKU’ALOFA	M. H. Whitten QC
23 October 2020	LORD CHIEF JUSTICE

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^[1] Recently repealed and replaced by the Traffic Act 2020, assented to on 27 August 2020.
^[2] For example, the settled starting point in Tonga for rape is five years imprisonment: Fa'aoso v R [1996] Tonga LR 42, confirmed in 'Aisea v Rex [2012] TOCA 12.
^[3] Including R v Latu (Unreported, Supreme Court, CR 92 of 2018, 24 August 2018 Paulsen LCJ), R v Fanua (supra), R v ‘Aisea (Unreported, Supreme Court, CR 160 of 2018, 15 February 2019, Paulsen LC]) and R v Tonga (Unreported, Supreme Court, CR 143 of 2018, 22 March 2019, Paulsen LCJ).
^[4] [5]
^[5] The Defendant reportedly told the probation officer he was remorseful for what he had done, but there is no evidence he made similar offerings to the family of the victim.
^[6] Wills v Police (HC, Christchurch AP 23/95, 2 February 1995); [1993-1995] BCLD 2018; adopted by Blanchard J in Hokianga v Police (HC, Auckland AP 31/95, 26 April 1995);