R v Pese [2023] TOSC 56; CR-VAV 1 of 2023 (31 October 2023)

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

CR-VAV 1 of 2023

REX
-v-
SAMIU PESE

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU KC
Appearances: Mr F. Samani for the Crown.
The Defendant in person.
Date: 31 October, 2023.

The proceedings

1. On 4 September, 2023, the Defendant, pleaded guilty to one count of dangerous driving causing death, contrary to section 27(5) of the Traffic Act.

The offence

2. On or about 6pm on the evening of 9 March 2023, the deceased, Sioeli Seau went with a bottle of alcohol to his friend, the defendant, Samiu Pese’s, home at Holonga, Vava’u. They were to attend the Tonga College concert at Holonga.
3. Around 7pm another friend, Poasi Finau was visiting the defendant to discuss work for the next day. He joined the two men and heard that the Tonga College concert at Holonga was cancelled but the one at Houma was going ahead. They decided to go to Houma’s concert.
4. When the alcohol finished they all went in Mr. Finau’s vehicle. The deceased’s truck was parked at the Defendant’s home. The back of the van was open, not covered.
5. When they arrived at the concert the deceased got off and started dancing to the music. The concert finished around 11 pm and the men returned to the defendant’s home. The deceased passed out before they arrived at the defendant’s home. So, Poasi and the defendant carried and placed him at the open back of his own truck. Poasi said to leave him there to sleep and he can drive home when he wakes up the next morning.
6. The defendant said he would take the deceased back to Leimatu’a and he got in at the driver’s seat to drive the deceased home to Leimatu’a. At the time, the deceased was still sleeping at the back of his truck. Poasi was travelling back to Ta’anea and followed them in his vehicle. The defendant was travelling at high speed and zigzagging on the way.
7. When Poasi came to the new road at Ha’alefo leading to Leimatu’a, he lost sight of the deceased’s vehicle.
8. The defendant had fallen asleep at the wheel and lost control of the vehicle allowing it to turn off the road into banana trees on the side of the road. The collision threw the deceased off the vehicle.
9. Poasi drove by slowly, then he spotted the deceased’s vehicle in the plantation on the right side of the road leading to Leimatu’a. He saw the defendant alight the vehicle from the front but the deceased could not be seen at the back where he was sleeping.
10. They searched for almost an hour before finding him under tall grass with the banana trees the truck crashed into, on top of him.
11. According to Dr. Tatila, it was likely that the collision with the banana trees, threw the deceased off the back of the truck. His x-rays showed cervical bone subluxation. She concluded that his neck injuries were the cause of death.
12. The Defendant cooperated with Police and admitted to the offending. He has no previous convictions.

Crown’s submissions

13. The Crown submitted the aggravating features of the offending were:
    1. a life was lost;
    2. drunk driving, falling asleep at the wheel;
    100. driving at dangerous speed and manner;
    4. no regard for his sleeping passenger’s safety in an open truck with no means of safety harnessing.
14. As for mitigating features, the Crown submitted they were:
    1. Early guilty plea,
    2. He remained at the scene and searched for the deceased,
    100. Cooperation with the police; and
    4. a first-time offender;
15. The Crown referred to the following comparable sentences:
    1. Simione Ikahihifo v Rex AC 14/2023 [CR 304/2020] (Reported; Date of Judgement 1 October 2021) – the Appellant was charged with dangerous driving causing death and dangerous driving causing grievous bodily harm. The significance of this case is that the Court of Appeal adopted the approach in Gacitua v R [2013] NZCA 234 where the Court of Appeal reviewed the approach accepted in the New Zealand Courts to sentencing traffic cases.

The Court of Appeal quashed the sentence below and imposed a starting point of 7 years for the first charge and to reflect the totality of the offending, 1 year from the second charge was added to the first charge.

2. Rex v Titali To’ia CR 111/2022 (Reported; Date of Judgement – 13 December 2022) – the Defendant was charged count of dangerous driving causing death, contrary to section 27(5) of the Traffic Act. He pleaded guilty at first given opportunity. The court considered the guidelines in introduced in Ikahihifo and placed the instant case within the first category (Highly culpable standard of driving; factors a) to i) of the guidelines. A starting point of 7 years imprisonment was imposed with an addition of 1 year as the Defendant committed the offending whilst on bail for another proceeding. Two years was deducted by way of mitigation, leaving a final sentence of 6 years imprisonment. The final year was suspended for 2 years on conditions.

100. Rex v Semisi Mala’efo’ou CR 43/2023 The Defendant was charged with one count of dangerous driving causing death. LCJ Whitten considered the guidelines introduced in Ikahihifo and found the case to fall within the highly culpable standard of driving and adopted a starting point of 6 years imprisonment. Three years was deducted in mitigation, leaving a final sentence of 3 years imprisonment. The final 18 months was suspended for 2 years on conditions.

4. Mo’unga v R [1998] Tonga LR 154 – the Court of Appeal set the following principles when considering suspension of a sentence. Where the offender is young, has a previous good record, or has had a long period free of criminal activity; is likely to take the opportunity offered by the sentence to rehabilitate himself or herself; where, despite the gravity of the offence, there is some diminution of culpability through lack of premeditation, the presence of provocation, or coercion by a co-offender and where there has been cooperation with authorities.

16. Here, the Crown submits the following sentencing formulation:
    1. the present case falls within the category of highly culpable standard of driving (factors (a) to (i)) introduced in Ikahihifo and a custodial sentence was appropriate;
    2. a starting point of 6 years in line with Mala’efo’ou with a discount of 2 years and 6 months for the Defendant’s early guilty plea, previous good record and cooperation with the Police, leaving a final sentence of 3 years and 6 months imprisonment.
    100. The Crown accepted in view of the principles in Mo’unga, that the defendant was entitled to a partial suspension of his sentence.
17. Overall, the Crown recommended a final sentence of 3 years and 6 months imprisonment with the final 12 months to be suspended for 2 years on conditions that the Defendant is to be placed on probation and complete a course on alcohol awareness.
18. Pursuant to section 27(5) of the Traffic Act, the Crown sought the Defendant to be permanently disqualified from holding a driver’s license.

Victim impact report

19. A victim impact report was filed. Mrs Seau said she and the deceased raised 8 children. Unfortunately, they lost one at birth. All of the children have grown and have their own families. Some live abroad and others reside in Tongatapu.
20. She and her husband grew and processed kava for a living and when he died, the operation ceased for about 3 months. Since then one of the children has moved to Vava’u and is operating the business.
21. Mrs Seau said that the impact of the loss of her husband was the emotional sadness and sorrow. She said they did not experience any financial hardship and they are financially stable.
22. She spoke of the defendant seeking her forgiveness which she accepted. She expressed that she did not wish for the defendant to go to prison.

Pre-sentencing report

23. The report informs that the defendant is 40 years of age. He was raised in a stable family and had 4 siblings. His father died in 2007 and his mother migrated to the United States to live with one of the children there.
24. The defendant married Epenisa Talia and they had one child. They have been separated for some time and his wife took custoday of their child. He moved to Holonga, his mother’s village in 2021.
25. The defendant completed primary school at Longolongo and enrolled at Tupou College completing 4^th form. He started working for an uncle who was a construction contractor. He is a member of the Church of Tonga and is generally healthy.
26. The Defendant blames himself for the accident and regrets his error of judgment in thinking he will get the deceased back to his family. He truly regrets that this happened and is ready to face the punishment.
27. The town officer wrote to say he has known the defendant for over 4 years and that he of good standing within the village. He is a skilled carpenter and is assisting with the building of the primary school building in Holonga. He was a member of the community police and supports sports programs for the youth and young children as well as programs for the development of the village. He views him as a role model to the youth and someone who can teach the youth about building. He is a reliable and honest member of the community.
28. There was also a letter from the pastor of the free church of Tonga which appeared to be a general template in support of travel and not much value for sentencing purposes.

Starting point.

29. The maximum statutory penalty for dangerous driving causing death is imprisonment not exceeding 15 years.
30. I have considered the guidance and approach in Ikahihifo^[1] and find the aggravating factors in the instant case to be:
    1. the loss of Mr. Sioeli Seau’s life;
    2. consumption of excessive alcohol before driving;
    100. his ignoring of Poasi’s warning to let the deceased sleep it off and return to his home in the morning;
    4. driving at excessive speed;
    5. a prolonged, persistent course of bad driving from Holonga to Leimatu’a; and
    6. driving without a driver’s licence.
31. For those aggravating features, and having considered the comparable cases relied on by the Crown, I find this offending is firmly placed in the range of extremely high level of culpability warranting a starting point of 7 years imprisonment. I do not agree with the Crown that the present case should be treated like Mala’efo’ou^[2]. That case is distinguished in that the defendant was 15 years of age at the time of the offending and that is why the starting point was reduced in half.

Mitigation

32. There is much to be said of the defendant’s conduct after the accident occurred. He did not leave the area but searched for the deceased for over an hour until he was found. He stayed with the deceased carrying out first aid and continued attempts to resuscitate him while Poasi went to contact the deceased’s wife.
33. The deceased’s wife spoke of how she arrived to observe the defendant had laid out her husband properly and was crying, in my view a demonstration of genuine remorse and grief for the loss of a friend likely compounded with guilt about what had happened.
34. In addition, he pleaded guilty at the earliest opportunity and has no previous criminal record. For those reasons I deduct 24 months from his sentence resulting in a sentence of 5 years imprisonment.
35. I have considered the widow’s request for mercy on behalf of the defendant and I mean no disrespect but “the opinions of the victim or the surviving members of the family, about the appropriate level of sentence do not provide any sound basis for reassessing a sentence. If the victim or his family feel utterly merciful toward the criminal, and some do, the crime has still been committed and must be punished as it deserves”^[3]

Suspension

36. The defendant is 40 years old and therefore not young. However, he has previous good record, he has cooperated with the authorities and with the positive support of is likely to use any suspended part of his sentence to rehabilitate himself. This was a case of bad judgment as opposed to one of premeditation but it has come at a high cost to the deceased and his family.
37. However, under the circumstances, I am satisfied that the defendant is entitled for part of his sentence be suspended on conditions. I adopt the 12 months suspension suggested by the Crown.
    

Result

38. The Defendant is convicted of dangerous driving causing death and is sentenced to 5 years imprisonment.
39. The final 12 months of the sentence is to be suspended for a period of 2 years on condition that during the said period of suspension, the defendant is to:
    • (a) not commit any offence punishable by imprisonment;
    • (b) be placed on probation;
    • (c) report to the probation office within 48 hours of his release from prison and thereafter as required by his probation officer; and
    • (d) (subject to him having undertaken them in prison) complete courses in drug and alcohol awareness and life skills as directed by his probation officer.
40. 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.
41. Subject to compliance with the above conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 4 years in prison.
42. 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	P. Tupou KC
31 October, 2023	ACTING LORD CHIEF JUSTICE

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^[1] Ikahihifo v R; AC 14 of 2022; [2021] TOCA 21
^[2] Para.15(c) above.
^[3] Nunn [1996] 2 Cr App R(S)136