R v Fainu [2023] TOSC 57; CR-VAV 5 of 2023 (31 October 2023)

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

CR-VAV 5 of 2023

REX
-v-
LIUAKI FAINU

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU KC
Appearances: Mr F. Samani for the Crown.
Mr ‘A. Pouvalu for the Defendant.
Date: 31 October, 2023.

The proceedings

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

The offence

2. The Complainant, Sioeli Filipe, is a police officer at the Neiafu Police Station from ‘Utulei, Vava’u. On the afternoon of 21 December, 2022, the complainant and police officer Sateki were operating a checkpoint on all vehicles travelling on Tu’i Road between Faama and Mataika, Vava’u. They were checking quarterly permits.
3. On or about 6:25pm, Officer Sateki stopped vehicle C-26334 which was travelling southward to check its quarterly permit. At the same time, vehicle L-22612 was approaching the check point also heading south and parked behind C-26334. The complainant inspected this vehicle.
4. As the complainant was inspecting L-22612, the Defendant was on the road, returning in vehicle J-9048 to Ha’alaufili from Neiafu, and therefore heading north.
5. The defendant is 22 years old Liuaki Fainu from Tefisi. He had consumed alcohol while at Neiafu prior to driving back to Ha’alaufuli. Another vehicle was in front of the defendant. As he approached the checkpoint he overtook the vehicle in front of him at a speed of 80 -100km/hr.
6. The defendant’s vehicle crashed into C-26334 which hit the complainant. The complainant was immediately rushed to the hospital by bystanders.
7. Officer Sateki arrested the Defendant and took him to the Police Station for questioning.
8. Dr. Tatafu Tatila confirmed that the complaint’s right femur bone was fractured, consistent with impact by a fast-moving vehicle.
9. The Defendant cooperated with the Police and admitted to the offending. He has no previous convictions.

Crown’s submissions

10. The Crown submits the aggravating features of the offending were:
    1. the severe injuries suffered by the complainant;
    2. the injury was caused while the complainant was on duty;
    100. the impact on the complainant, has limited him to a job behind a desk;
    4. the defendant had consumed alcohol prior to driving;
    5. driving at a dangerous speed and reckless manner having no regard for the safety of other road users;
    6. damage to vehicle C-26334;
    7. attempt to avoid being detected by the Police for drunk driving;
    8. lack of remorse;
11. The Crown submits the following as mitigating features;
    1. The Defendant is a first-time offender;
    2. Cooperation with the Police;
    100. early guilty plea;
    4. his youth.
12. The Crown referred to the following comparable sentences:
    1. Rex v Toutai Mafile’o (CR 41/2021) – the defendant was charged with dangerous driving causing grievous harm. He entered an early guilty plea and was a first-time offender. The defendant and complainant were drinking at Pelehake. They drove to Lapaha to get more alcohol. On their return, because the defendant did not know how to drive a manually operated vehicle, they decided that the defendant would steer while the complainant controlled the gear. The vehicle was veering off the road and the complainant asked the defendant to stop. He did not.

The vehicle headed onto the left side of the road towards the Mu’a Police Station and almost crashed into the Chinese shop opposite the police station. When the defendant tried to get back onto the road, he crashed into an electric pole causing the vehicle to spin and land on top of a concrete foundation a few meters from the Chinese shop. Both men inside the vehicle sustained injuries.

A starting point of 3 years imprisonment was adopted and then reduced by 1 year in mitigation. For the Defendant’s youth, he was 22 years old, his sentence was fully suspended for 2 years on conditions. Further, he was disqualified from holding/obtaining a driver’s license for a period of 2 years.

2. Rex v Charoteesha Tu’ipulotu (CR 4/2019) – the Defendant was charged with reckless driving causing grievous bodily harm, and being in charge of a motor vehicle while under the influence of alcohol in excess of 250 micrograms, contrary to section 26(1) & 26(2)(b) of the said Act.

She entered an early guilty plea and was a first time offender. The defendant was at a drink up in a bush area at Havelu with others including the complainant. The defendant argued with her boyfriend causing her to get into his car and drive towards the group. She ran the complainant over and stopped when one of the tyres rested on the complainant’s left thigh. The complainant was hospitalized for a lengthy period.

A starting point of 3 years imprisonment was adopted, reduced by 9 months for mitigation. A further 6 months was deducted for the Defendant’s early guilty plea and her youth and the sentence was fully suspended for 2 years on conditions. For the second charge, the Defendant was sentenced to 6 months imprisonment, to be served concurrently. Her driving license was cancelled and she was disqualified from obtaining one for a period of 2 years.

100. Simione Ikahihifo v Rex (AC 14/2022) [CR 304/2020] – the passenger in this case suffered serious injuries. The defendant was sentenced to 4 years and 2 months. The court of appeal reduced that starting point to 4 years and added one year to the headcount of causing death and ordered the remaining 3 years be served concurrently to the headcount.

4. Mo’unga v R [1998] Tonga LR 154 – the Court of appeal set out the principles the court should consider when deciding whether or not to supend a defendant’s sentence wholly or in part.

13. The Crown submits the following sentencing formulation:
    1. That a custodial sentence was appropriate with a starting point of 3 years imprisonment uplifted by 6 months for causing injury to an officer while executing his duties.
    2. In mitigation, the Crown proposed 12 months to be deducted for the defendant’s early guilty plea, previous good record and cooperation with the Police, leaving a final sentence of 2 years and 6 months imprisonment.
    100. In line with Mo’unga, the Crown accepted that the Defendant should be granted partial suspension for his youth, good record and cooperation with the police.
14. The Crown recommended a final sentence of 2 years and 6 months imprisonment with the last 12 months suspended for 2 years on conditions.
15. Pursuant to section 27(4) of the Traffic Act, the Crown requests that the Defendant is disqualified from holding or obtaining a driver’s license for a period of 2 years.

Victim Impact Report

16. The Crown interviewed the complainant on 4 October 2023. He said that:
    • (a) as a result of the accident, he was evacuated to Tongatapu immediately where he spent 2 months at Vaiola Hospital for a reconstructive surgery to realign his broken femur using metallic rods;
    • (b) it cost him $3000 in expenses for hospital fees and have his wife and child brough to the Vaiola hospital;
    • (c) he resumed work 6 months after the accident but because he was still experiencing pain, he had to take leave due to the pain;
    • (d) he is still aided by crutches for mobility and is unable to perform physical labour restricting him to office work;
    • (e) he awaits bone reconstruction experts from Australia next month who will operate to re-connect his fractured femur;
    • (f) he said the defendant and his parents offered him an envelope to apologize. He did not accept it as felt it was not genuine. The defendant said nothing while his mother did the talking. This occurred on 28 September, 2023 and the complainant felt it was done for the purpose of mitigating his sentence.

Defendant’s Submissions

17. Mr. Pouvalu, for the Defendant submitted that a fully suspended sentence was appropriate given the defendant is young; his outlook on the world was limited because he only completed form 2 at high school, he is now an active member of the Assembly of God church, he is a first time offender, he cooperated with the police and he had apologised to the complainant and was accepted.

Pre-Sentencing Report

18. The pre-sentence report informs that the defendant is 23 years old. He has 5 siblings and grew up in a stable home. He did not do well at school and joined his father in going to the plantation.
19. The defendant married young, at 19 and has been experiencing marital problems since. At the time of the offending, the defendant’s wife had returned to her own home at Ha’alaufuli. This stems from his wife seeing another man.
20. The defendant’s father observed that since the break-up of his son’s marriage, it was clear to him that his emotions were out of control. He was visiting Neiafu every night and returning home drunk. He was sorry his son was going through that at such a young and vulnerable age. The defendant promised his parents he will work at becoming a better person and abide by the law.
21. The defendant’s version was that he had bought 4 cans of beer and was drinking it on his way to Neiafu to buy food to take to his wife at Ha’alaufuli. While on his way, his wife called and shouted at him because she was about to go elsewhere with friends and in rushing to get her, he overtook the vehicle in front of him. He did not see the checkpoint until he reached the top of the hill and by that time it was too late and he could not control the vehicle.
22. The town officer of Tefisi and pastor of the defendant’s church both wrote in support. The sentencing recommendation in the pre-sentence report is for a fully suspended sentence of imprisonment subject to conditions.

Starting point

23. The maximum statutory penalty for dangerous driving causing grievous bodily harm is a fine not exceeding $25,000 or imprisonment for a term not exceeding 7 years and disqualification from holding or obtaining a driver’s licence for a period not exceeding 5 years.
24. Having regard to the maximum penalty, the seriousness of the offending, the aggravating features, the comparable cases and the principles of punishment, deterrence and denunciation, I set a starting point of 3 years imprisonment. I agree with the Crown that it should be uplifted by 6 months for harming an officer while on duty, resulting in a final starting point of 3 years and 6 months imprisonment.
25. For the defendant’s early guilty plea, cooperation with the police and previous good record I deduct 12 months in mitigation resulting in a final sentence of 2 years and 6 months imprisonment.
26. The principles in Mo’unga^[1] favour the defendant. He is young and with the support of his parents and pastor, there is high prospects for his rehabilitation. He is going through a rough patch in his marriage and would benefit from the opportunity to develop some alcohol and drug awareness and life skills so that he can move forward positively with his life.
27. I note the complainant’s attitude as to the apology offered by the defendant in the victim impact report. However, in the recent report from the Probation Office, it records that the family went to Utui and apologised to the complainant and his parents and were warmly accepted.
28. In R v Tu’ipulotu, CR14 of 2019, the court said:

“I consider that the interests of Miss Tu'ipulotu and the community will be best served by imposing a fully suspended sentence with a punitive aspect and conditions that aid in her rehabilitation.”

29. This approach was endorsed and adopted in R v Mafile'o [2021] TOSC 57 and I am satisfied I should do the same in the present case.
    

Result

30. The defendant is convicted for dangerous driving causing grievous bodily harm and sentenced to 2 years and 6 months imprisonment. The sentence is fully suspended for a period of 3 years, on the condition that during that period of suspension, the defendant is to:
    • (a) not to commit any offences punishable by imprisonment;
    • (b) be placed on probation;
    • (c) attend and successfully complete life skills and alcohol and drug abuse courses with the Salvation Army (or such other organisation as Probation may direct) within a period of six months;
    • (d) perform 100 hours community work and to consult the probation office via the Magistrates Court in Vava’u today to make arrangements for the performance of the said community work.
    • (e) I make an order under s. 29(1) Traffic Act to cancel the defendant’s driving licence and disqualify her from obtaining a drivers licence for a period of 2 years from today's date.
31. The defendant is to be warned that any 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 whole of his prison term.
    

NUKU’ALOFA	P. Tupou KC
31 October, 2023	ACTING LORD CHIEF JUSTICE

---

^[1] Mo’unga v R [1998] TLR 154