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R v Mala'efo'ou [2023] TOSC 30; CR 43 of 2023 (19 May 2023)

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


CR 43 of 2023

REX
-v-
SEMISI MALA’EFO’OU


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Ms ‘A. ‘Aholelei for the Prosecution
Mr S. Fili for the Defendant

Date: 19 May 2023

Charge

  1. On 11 April 2023, the Defendant pleaded guilty to dangerous driving causing death contrary to ss 27(5) of the Traffic Act. He appears today for sentencing.

Offending

  1. Around 1 pm on 11 November 2022, at ‘Ohonua, ‘Eua, the Defendant, who was 15 years of age at the time, started drinking alcohol with others who were preparing food. Between 4 and 5 pm, when they had finished the alcohol, the Defendant began driving the others to Ha’atu’a in his mother’s vehicle.
  2. Once they turned onto the main road from ‘Ohonua to Ha’atu’a, the Defendant drove the vehicle at speeds of 80 to 90 kilometres per hour and did not slow down when they approached the village of Pangai which is a 50 kilometre per hour zone.
  3. At that time, Henry ‘Esitonia Lakalaka, a 21-year-old male from Angahã and ‘Akapei Kefu were walking along the roadside in the same direction the Defendant was heading. At a turn before the Free Church of Tonga compound past the Pangai Community Police post, the Defendant’s vehicle, which was still speeding, struck Henry from behind and propelled him over 10 metres where he landed on the fence surrounding the church compound. ‘Akapei rushed to Henry, who was unconscious, and his head and face were covered with blood.
  4. The Defendant did not stop at the scene. He continued driving to Ha’atu’a where he dropped off the others.
  5. ‘Akapei and another rushed Henry to Niu’eiki Hospital where he died later that evening. Dr Penitani confirmed the cause of death as severe head injury secondary to blunt force impact.
  6. The Defendant was later arrested. He co-operated with Police and, when interviewed, admitted to the offending.

Crown submissions

  1. The Crown submits that following as aggravating features of the offending:
  2. The Crown submits the following as mitigating features:
  3. The Crown refers to the following comparable sentences:
  4. The Crown submits the following as an appropriate sentencing formulation:

Family impact statement

  1. The Crown included the following information from Henry’s grandmother, Mrs Na’a Telesia Lakalaka, who customarily adopted Henry from birth. Henry’s death has been a tragic loss for his family, relatives and friends and has not easily been accepted. Three days after the incident, the Defendant’s mother and family visited Na’a at her residence and offered their apology. The Defendant’s family presented one live horse, about 10 boxes of chicken thighs, Tonga artifacts and money. The apology and offerings were warmly accepted. Her family wished that the Defendant was not charged and prosecuted, and they seek the Court’s indulgence and mercy for the Defendant. Henry is now gone, and nothing can be done about it. What can be affected is the Defendant’s future. Henry’s family pray for a just punishment that will not destroy the Defendant’s future but will accept whatever sentence the Court imposes.

Defence submissions

  1. Mr Fili submitted the following in mitigation. The Defendant is a first offender. He is now 16 and was 15 at the time of the offence. He pleaded guilty at the first opportunity and accepts responsibility for his actions. He and his family apologized to Henry’s family and presented Tongan mats and supplies for the funeral which Henry’s family accepted. They did not wish to press charges. The Defendant’s grandmother, Mrs Lakalaka, expressed her wish as recorded in the presentence report, that the Defendant “not be sentenced to prison so that he can live his life”. The Defendant is remorseful and determined to continue his life with good behaviour and abide by the law. He attended Eua High School and is now enrolled in a carpentry program at Tonga Institute of Science and Technology training to be a builder. The Defendant co-operated with the police and confessed to the offending. The Defendant’s father died years ago leaving him to be raised by his widow mother.
  2. Letters of support and confirmation of enrolment from Eua High School and Tonga Institute of Science and Technology were attached to Mr Fili’s submissions, which I have considered.
  3. Mr Fili referred to the decision of Paulsen LCJ in R v Vainiaku ‘Aisea (unreported, Supreme Court of Tonga, CR 160/2018, 15 February 2018). There, the Defendant, who was 38 years of age, pleaded guilty to reckless driving causing death and grievous bodily harm. On 14 July 2018, Mr 'Aisea was driving a car west on the By-Pass Road towards Teufavia Park to attend a parade. He had his niece with him as a passenger and he was in a hurry to get to the Park. The speed limit was 40km/h but Mr 'Aisea was travelling between 50 and 70 km/h. Mr 'Aisea was following two vehicles and attempted to pass them both. There were vehicles approaching in the opposite direction and when Mr 'Aisea was performing his passing manoeuvre, one of those vehicles, a truck, attempted to pass vehicles in front of it. The truck was moving very quickly and, fearing a head on collision, Mr 'Aisea veered to the right and drove off the road into the corner of an intersection colliding with Hinemoa Mahoni (aged 12) and her sister Katalina Mahoni (aged 20) were waiting for a bus. Hinemoa was crushed between a gate and an electric post. Mr 'Aisea was too distressed to render assistance but there were others at the scene. Hinemoa and Katalina were taken to hospital. Katalina suffered injuries to her arm and was released but Hinemoa never regained consciousness and died the next day. On the head count, his Honour set a starting point of 4 years imprisonment. For mitigation, which included the Defendant’s previous good record, his employment, church involvement, that he was regarded as a decent man and a productive member of the community, his genuine remorse, attending the deceased’s funeral and having made peace with her family, reparations by money and goods in the traditional Tongan manner and the family’s forgiveness expressed by them not wanting him to serve a prison sentence, the starting point was reduced to a sentence of 2 years and 3 months imprisonment with the final 21 months being suspended on conditions.
  4. For those reasons, Mr Fili submitted that the sentence here should be fully suspended.

Presentence report

  1. The Defendant is the fourth of five children. He grew up in a close-knit family. His father died in 2020. His mother described him as an introverted child who was a great help to her as he grew up. When he started high school, he informed his mother he would enroll in the TVET program to obtain a job as soon as possible so he could help out financially at home. After graduating from the 'Eua High School TVET program in 2022, the Defendant was admitted into the Tonga Institute of Science and Technology, where this year he enrolled in a four-year Carpentry Program. The Defendant is currently residing with his aunt in Ma'ufanga, where he has been continuing his studies.
  2. The Defendant and his family are active members of the Catholic Church. Father Tomu Lakalaka bestowed his blessing on the Defendant, describing him as a good person and dutiful son.
  3. In relation to the offending, the Defendant said that on the day in question, his friends begged him to take them to another area despite the fact that they were all drunk. His mother had to hide the key to her vehicle when she traveled to another hamlet for a women's function, but the Defendant found it. When he found the car key, he was in a hurry to send off his friends before his mother returned and found out. He did not know that a life would be lost as a result of his terrible judgment. Nonetheless, the Defendant reiterated to the probation officer his acceptance of responsibility and showed remorse and regret for what he has done. He accepts whatever sentence is imposed on him because a life was lost and his guilt will be with him for the rest of his life.
  4. The victim's family expressed their forgiveness. As noted above, the Defendant’s family gave Tongan artifacts and other items for the victim's funeral and afterwards. The victim’s family said to the probation officer that the Defendant "is just a kid", that they accepted his family's apologies and that they want the best for him and his family. Mrs Lakalaka, the victim's grandmother, wishes that the Defendant not be sentenced to prison so that he can live his life.
  5. The probation officer recommends a partially suspended sentence on usual conditions.

Starting point

  1. The maximum statutory penalty for dangerous driving causing death is 15 years imprisonment and the Court may order that the convicted person be permanently disqualified from holding or obtaining a driver’s licence.[1]
  2. 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 Finau [2019] TOSC 22 at [8]. In cases of reckless driving where a death or serious injury results the Court ‘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’: R v Fanua [2016] Tonga LR 208 at [6], Cato J.
  3. In setting an appropriate starting point for the instant offending, the approaches and ranges indicated by comparable sentences prior to 1 October 2021 must now be reviewed in light of the Court of Appeal’s recent re-statement in Ikahihifo v R [2021] TOCA 21. There, the Court opined, inter alia, that a general starting point of four to five years imprisonment for reckless driving causing death, which had generally been adopted in the earlier cases following Fanua, ibid, is unlikely to consistently reflect or effect the statutory imperatives of the 2020 revision of the Traffic Act.
  4. The Court then considered the approach to determining culpability, aggravating and mitigating factors and sentencing categories and ranges expounded by the New Zealand Court of Appeal in Gacitua v R [2013] NZCA 234. In New Zealand, the statutory maximum penalty for dangerous driving causing death is 10 years imprisonment. In Gacitua, the Court of Appeal set out various categories and descriptions of aggravating factors, and then recommended ranges of starting points according to the nature and number of those factors present in a given case. It is unnecessary for present purposes to recite all the factors as they are set out in the Ikahihifo decision.
  5. The categories of aggravating factors were described as highly culpable standard of driving at time of offence, driving habitually below acceptable standard, outcome of offence and irresponsible behaviour at time of offence. The Court then specified ranges of starting points according to the presence of factors within those categories. For instance, in cases in which no aggravating features are present, the starting point was stated to be between 12 and 18 months. For an offence involving a momentary dangerous error of judgment or short period of bad driving, aggravated by a habitually unacceptable standard of driving, by the death of more than one victim or serious injury to other victims or by irresponsible behaviour at the time of the offence, the recommended starting point is two to three years. When the standard of driving is more highly dangerous (as indicated, for example, by the presence of one or two of the highly culpable factors), the starting point may be between four to five years. Cases involving an extremely high level of culpability involving three or more of the highly culpable aggravating factors, may attract a starting point of six years imprisonment.
  6. Mitigating features were described as a good driving record, the absence of previous convictions, a timely plea of guilty, genuine shock or remorse (which may be greater if the victim is either a close relation or a friend), the offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence), and the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.
  7. The Court of Appeal in Ikahihifo saw no reason why the Gacitua guidelines should not be instructive in Tonga, with the recommended starting points or ranges necessarily modified to reflect the higher prescribed maximum penalty. However, the Court stressed that guidelines are just that. They are not strict or inflexible formulaic rules to be applied in every case. The initial task remains to place the offending in its proper position in the scale of seriousness of offending. The Gacitua guidelines may assist in that task. By the same token, it may be necessary to depart from such guidelines, up or down, in determining the appropriate starting point for the particular offending in a given case.[2] As noted, the starting points in Tonga must be adjusted to reflect the higher statutory maximum penalty of 15 years imprisonment.
  8. In turning now to consider the application of those guidelines in determining the seriousness of the instant offending and the Defendant’s culpability, I note that the Crown’s submissions in relation to aggravating features included the Defendant having been unable to control the vehicle which caused him to swerve off the road because he was speeding and trying to avoid potholes on the road and oncoming vehicles, and that the vehicle had a number of mechanical defects. Those matters were not mentioned in the summary of facts. I take it they came from the Defendant’s interview with police and examination of the vehicle. The directions issued following arraignment provided for any reply submissions to be filed by 12 May 2023. Neither party filed any. Mr Fili has not taken issue with the Crown’s submissions in this regard. I therefore tentatively proceed on the basis that they are accepted by the Defendant.
  9. I generally agree with the Crown’s identification of the aggravating factors for this offending. Within the category of highly culpable standard of driving at the time of the offence, the Defendant was affected by the consumption of alcohol (although there is no evidence before me as to whether the Defendant was tested to determine his blood alcohol concentration) and drove at greatly excessive speed. In light of the apparently accepted facts referred to above, not only did the Defendant drive at excessive speed, he was also swerving trying to avoid potholes and oncoming traffic. Therefore, I consider it appropriate to add within this category a “prolonged, persistent and deliberate course of very bad driving”.[3] And, as the Crown noted, he was driving a poorly maintained vehicle. However, I hasten to add that there is no evidence before me to indicate the extent to which, if at all, any of those defects, including the poorly maintained brakes, played a part in the collision. For instance, there is no suggestion that the Defendant saw the victim and attempted to brake before hitting him. That makes four factors within this category. Within the category of driving habitually below acceptable standard, at then 15 years of age, the Defendant could never have had held a (valid) driver’s licence. Within the category of irresponsible behaviour at the time of the offence, the Defendant failed to stop at the scene.
  10. Contrary to the Crown’s submission, the above analysis squarely places this offending within the most serious category described in Gacitua - extremely high level of culpability - which, in New Zealand, would attract a starting point of six years imprisonment, before any uplift to reflect the higher statutory maximum penalty in Tonga.
  11. By comparison to the offending in the comparable cases referred to above, I consider the present offending to be more serious than that in ‘Aisea and Leha'uli, but less serious than in Ikahihifo and Fifita.
  12. For those reasons, and because I am not entirely satisfied about the certainty, source or strength of the information upon which the Crown’s submissions were based in relation to the features of the Defendant’s driving which were not referred to in the summary of facts, I consider it appropriate to set the starting point at 6 years imprisonment.

Mitigation

  1. In the ordinary course, the Defendant’s early guilty plea and good previous record would attract a discount in mitigation in the order of one third.
  2. However, there are other mitigating factors here to be taken into account, including, perhaps most importantly, the Defendant’s age.
  3. In Gacitua, age was referred to as a mitigating factor but only in cases where lack of driving experience contributed to the commission of the offence. In that regard, I have no evidence before me. However, the Crown’s submission about the Defendant having difficulty controlling the vehicle tends to indicate that his lack of driving experience was a factor leading to the collision.
  4. Further, and in any event, it has been held that the sentencing of young offenders raises special considerations.[4] As the Court of Appeal observed in Rex v Tau'alupe [2018] TOCA 3:
“[16] ... An offender’s youth may impinge on an assessment of their culpability. ... prison for any period is known to carry an enhanced risk of trauma for young people. And, as this Court recognised in Mo’unga v R [1998] Tonga LR 154, young offenders have a greater capacity for rehabilitation.”
  1. Further, as discussed in Rex v Afeaki [2020] TOSC 4, in the exercise of its discretion in sentencing young offenders, the Court may have regard to factors such as international conventions: R v Vea [2006] TOSC 24. In December 1995, Tonga acceded to the United Nations Convention on the Rights of the Child. Article 37(b) of the Convention provides:
"...The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time."
  1. Although the Convention does not yet have the force of law in the Kingdom, its accession shows a willingness by Tonga to be bound by its terms. The Convention has been referred to and its principles applied in a number of sentences: e.g. Valu [2008] Tonga LR 44, Toutai'olepo [2020] TOSC 3, Vailea [2020] TOSC 27 and Wolfgramm [2020] TOSC 78.
  2. A further consideration in this regard is that Tonga is yet to establish a dedicated youth detention centre. Therefore, those under 18 years of age who are sentenced to prison will usually be required, subject to any facilities or accommodation the Commissioner of Prisons may be able to furnish or adapt within Hu’atolitoli Prison, to cohabit with older inmates, some of whom are hardened criminals.
  3. Therefore, on account of the Defendant’s young age together with his demonstrated remorse, significant reparations to the victim’s family and their moving forgiveness of him, I reduce the starting point by a total of one half, resulting in a sentence of 3 years imprisonment.

Suspension

  1. The Defendant meets most of the considerations for suspension discussed in Mo’unga [1998] Tonga LR 154 at 157. He is very young. He has no previous convictions. He fully co-operated with the police and pleaded guilty at the earliest opportunity thereby sparing the victim’s family the anguish and stress of a trial, and saving the State valuable time, expense and very limited judicial resources.
  2. However, recently in Losalu v R [2022] TOCA 24, the Court of Appeal noted that:
“Where the considerations for suspension in Mo'unga are met (which maybe assumed here), it does not automatically follow that a sentence must or should be fully suspended. Those considerations are not the only factors. Also relevant may be 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 or her: R v Motulalo [2000] Tonga LR 311; Vake [2012] TOCA 7, referring to Misinale [1999] TOCA 12.”
  1. Here, the seriousness of the offending, the alarmingly continual need for effective deterrence against this sort of lethal driving and the ultimate effect on the victim all militate against full suspension.
  2. Further, the decision of ‘Aisea relied upon by Mr Fili does not support his submission for full suspension here. There, Paulsen LCJ stated:
“[20] This is not a case where I can find that Mr. 'Aisea's moral culpability was low nor was the accident the result of a momentary lapse of attention. To fully suspend his sentence would fail to recognise that a human life was lost and another person seriously injured. It would also fail to deter others from taking unnecessary risk on the road in similar circumstances.”
  1. Similar considerations apply here.
  2. Therefore, as I stated in R v Leha'uli [2023] TOSC 5, ‘while one may have every sympathy for the Defendant and the effect any period of imprisonment is likely to have on him and his family, I am not persuaded that full suspension would strike the appropriate balance between the Defendant's rehabilitation on the one hand and the sentencing imperatives of punishment, denunciation and particularly deterrence for an offence of this kind, on the other. Nor do I consider that full suspension would meet the community's expectations or reflect Parliament's intention when it increased the statutory maximum penalty for a crime that, sadly, remains all too prevalent and which results in the loss of human life’.
  3. However, and like Paulsen LCJ in ‘Aisea, I too consider that a substantial suspension of the sentence is justified having regard to all the positive factors noted above, particularly the Defendant’s youth. I propose to suspend so much of the sentence as to produce an equivalent result to that submitted by the Crown.

Result

  1. The Defendant is convicted of dangerous driving causing death and is sentenced to 3 years imprisonment.
  2. The final 18 months of the sentence are to be suspended for a period of 2 years on condition that during the said period of suspension, the Defendant is to:
  3. Failure to comply with the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve the balance of his prison term.
  4. Subject to compliance with the above conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 18 months in prison.
  5. I direct that to the greatest extent possible, the Defendant be kept separate from the adult inmate population within the prison and that he receive such counselling and pastoral care from the Prison Chaplain, Rev. Semisi Kava, as may be available and required.
  6. Finally, the Defendant is disqualified from holding or applying for a driver’s licence for a period of 3 years from the date of his release from prison.

NUKU’ALOFA
M. H. Whitten KC
19 May 2023
LORD CHIEF JUSTICE

[1] Ss 27(5) of the Traffic Act 2020.

[2] [35]

[3] Gacitua factor (d).

[4] R v Churchward [2011] NZCA 531 at [77]- [92].

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