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Supreme Court of Tonga |
IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 91/2023
REX
-v-
Manley Manu Soakai PALU
Sentence
BEFORE: THE HONOURABLE COOPER J
Counsel: for the Prosecution
Mrs. Vaihu for the defendant
Date of
Sentence: 13 AUGUST 2024
ORDER OF COOPER J
DATE OF ORDER 13 AUGUST 2024
SENTENCE: 1. 3 years’ imprisonment. The last 18 months
suspended for 2 years.
2. Mr. Palu is disqualified from driving for 2 years from his
release from prison.
REASONS
Lance Mafi
Juliet Mafi
Mele Fe'ofa'aki Mafi
Crown’s submissions
1 The Defendant was charged with the following;
(Count 1)
CAUSING BODILY INJURY WHILE DRIVING UNDER THE INFLUENCE OF ALCOHOL, contrary to section 34(1) of the Traffic Act.
(Count 2)
CAUSING BODILY INJURY WHILE DRIVING UNDER THE INFLUENCE OF
ALCOHOL, contrary to section 34(1) of the Traffic Act.
(Count 3)
CAUSING BODILY INJURRY WHILE DRIVING UNDER THE INFLUENCE OF ALCOHOL, contrary to section 34(1) of the Traffic Act.
2 On 18 June 2024, the Defendant pleaded guilty to all three charges on arraignment.
3 The matter was then set down for sentencing on 14 August 2024.
II.PREVIOUS CONVICTIONS OF THE DEFENDANT
4 The Defendant has no previous convictions.
III MITIGATING & AGGRAVATING FEATURES
5 The Crown submits that the aggravating and mitigating features in this case are: AGGRAVATING FEATURES
(1) The Defendant had 1100 micrograms of alcohol per litre of breath;
(2) Three Victims were injured as a result of the collision;
(3) All Victims sustained serious injuries.
MITIGATING FEATURES
(1) The Defendant's early guilty plea;
(2) The Defendant has no previous convictions;
(3) The Defendant cooperated with Police;
(4) The Defendant's demonstrated remorse by apologising to the Victim.
IV RELEVANT LEGISLATION
6 The penalty for all counts is in section 34(1) of the Traffic Act. The maximum penalty is a term of imprisonment not exceeding 15 years.
V SENTENCING COMPARABLES
7 The Crown submits the following cases in order to assist the Court in determining an appropriate sentence for the Defendant.
(1) Ikahihifo v R, AC 14 of 2021
a. The Appellant drank spirits with his friends for several hours and around 9:45pm, the Appellant was described to be drunk. He then drove his vehicle from Hihifo to Nuku'alofa with a passenger. The Appellant was estimated to be driving between 80 and 100km /h (in a 70km/h zone). He then overtook a vehicle in front of him and collided head-on with another vehicle travelling in the opposite direction. This caused the death of the driver of the other vehicle and inflicted grievous bodily injuries to the front passenger of the other vehicle.
b. In the Supreme Court of Tonga, the Appellant was sentenced to 7 years and six months’ imprisonment for dangerous driving causing death. For dangerous driving causing grievous bodily harm, the Defendant was sentenced to 4 years and two months' imprisonment.
c. Niu J adopted a starting point of 9 years’ imprisonment for the dangerous driving causing death and 4 years and 2 months for the dangerous driving causing grievous bodily harm.
d. In the Supreme Court, the Crown recommended a starting point of 5 years’ imprisonment as that was the range accepted in all dangerous driving causing death sentencing remarks.
e. The Appellant appealed against sentence on the grounds that the head sentence was manifestly excessive and Niu J erred by refusing a partial suspended sentence.
f. The Appellate Court, reviewed R v Fanua [2016] Tonga LR 208 that was applied in R v Malolo Inia CR 29/15 and the common law authorities that have been applied here in Tonga in relation to reckless or dangerous driving causing death and ruled:
[31] In our view, a general starting point of four to five years’ imprisonment for reckless driving causing death, is unlikely to consistently reflect, effect house statutory imperatives.
g. The Appellate Court adopted the sentencing categories in Gacitua v R [2013] NZCA 234 in relation to determining starting points for sentence. The four categories in Gacitua v R are as follows:
1. In cases in which no aggravating features are present, a starting point of between 12 and 18 months;
2. An offence involving a momentary dangerous error of judgement or a short period of bad driving, aggravated by a habitually unaccepted standard of driving (factors (j) or (k)), by the death of more than one Victim or serious injury to other Victims (factors (I) and (m)) or by irresponsible behaviour at the time of the offence (factors (n) to (p)), a starting point of two to three years.
3. When the standard of driving is more highly dangerous (as indicated, for example, by the presence of one or two of factors (a) to (i), a starting point of four to five years.
4. Cases involving extremely high level of culpability involving three or more of the aggravating factors (a) to (i), a starting point of six years imprisonment.
h. We see no reason why the above guidelines should not be instructive in Tonga, with the recommended starting points or ranges necessarily modified to reflect the higher prescribed maximum penalties. However, such guidelines are just that. They do not represent strict or inflexible formulaic rules to be applied in every case. As stated in Fallowfield, the initial task is 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.
i. The Appellate Court also adopted the guidelines in Gacitua v R in relation to measuring the culpability of an offender by referring to the following aggravating and mitigating factors:
Aggravating factors, in four categories:
Highly culpable standard of driving at time of offence
(a)The consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a 'motorised pub crawl',
(b) Greatly excessive speed; racing; competitive driving against another vehicle; 'showing off'.
(c) Disregard of warnings from fellow passengers.
(d) A prolonged, persistent and deliberate course of very bad driving.
(e) Aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking)
(1) Driving while the driver's attention is avoidably distracted, eg by reading or by use of a mobile phone (especially if hand-held).
(g) Driving when knowingly suffering from a medical condition which significantly impairs the offender's driving skills.
(h) Driving when knowing deprived of adequate sleep or rest.
(i) Driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns.
Driving habitually below acceptable standard
(i) Other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle.
(k) Previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving.
Outcome of offence
(1) More than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable).
(m)Serious injury to one or more Victims, in addition to the death(s).
Irresponsible behaviour at time of offence
(n) Behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the Victims was responsible for the crash or trying to throw the Victim off the bonnet of the car by swerving in order to escape.
(0) Causing death in the course of dangerous driving in an attempt to avoid detection or apprehension.
(p) Offence committed while the offender was on bail.
Mitigating factors:
(a) A good driving record;
(b) The absence of previous convictions;
(c) A timely plea of guilty;
(d) Genuine shock or remorse (which may be greater if the Victim is either a close relation or a friend);
(e) The offender's age (but only in cases where lack of driving experience has contributed to the commission of the offence), and
(f) The fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.
j. The Appellate Court applied the sentencing categories and the aggravating factors in Gacitua and allowed the appeal. The sentence of the Supreme Court was quashed and imposed a starting point of 7 years for the dangerous driving causing death and 4 years from the dangerous driving causing grievous bodily harm. The final sentence imposed by the Court was 8 years imprisonment with the final 3 years suspended on conditions.
(2) R v Angilau, CR 4 of 2024
a. The Defendant pleaded guilty to one count of causing bodily injury while driving under the influence of alcohol, contrary to section 34(1) of the Traffic Act; and one count of driving a motor vehicle without a valid motor driver's licence, contrary to section 14(1) and (3) of the same Act.
b. The Court set a starting point of 5 years imprisonment for Count 1.
c. For mitigating factors; She was a first-time offender; she pleaded guilty at the earliest opportunity and maintained the plea even when the Crown sought to amend its original indicative sentencing submission recommending a fully suspended sentence to a custodial sentence; she cooperated with Police and demonstrated her remorse by apologising to the Victims a week after the accident. Viliami accepted her apology and sought a lenient sentence for Tepi. For those reasons, the court deducted 2 years off the starting point, resulting in a final starting point of 3 years’ imprisonment for Count 1.
d. As against the principles in Mo'unga [1998] Tonga LR 154, the Defendant was neither young nor old and should have known better. She was a first-time offender. She had demonstrated remorse by apologising to Viliami which was accepted. She did not bat an eye when the recommended sentence was changed to the prospects of a custodial sentence and maintained a steady guilty plea. In Tupou ALCJ's view, that was a strong indication of her remorse and taking accountability for her conduct.
e. The Crown considered Viliami's attempts to stop the car a contributing factor to the offending. Tupou ALCJ did not agree. Tepi had overtaken 4 vehicles prior and one can only cringe at the possibilities had he not tried to stop her. The final custodial sentence recommended by the Crown was 6 months imprisonment, after suspension. Judge did not believe it reflects the gravity of Tepi's conduct or the harm suffered by Viliami.
f. She cooperated with the police and Tupou ALCJ believed that she had learnt her lesson and that she would take the opportunity offered by a suspended sentence for rehabilitation. For those reasons, the Judge suspended the final 26 months of her sentence on conditions.
g. The final sentence for count 1 was 3 years imprisonment, and the final 26 months of her sentence suspended for a period of 2 years from the date of her release from prison on conditions: Not commit any offence punishable by imprisonment;
i. Be placed on probation;
ii. Report to the Probation Office within 48 hours when released from prison; and
iii. Complete courses in drug and alcohol awareness as directed by her probation officer.
h. The Defendant was required to serve 10 months in prison.
VI VICTIM IMPACT REPORT
8 On 9 July 2024, the Victims were interviewed at the Attorney General's Office and they confirmed the following.
a. At the time of the offending the daughter was not wearing a seat belt. She was unable to walk for three weeks and relearn walking, similar to a baby, once she began her recovery.
b. Lance, is a construction worker and sometimes he struggles at work due to occasional foot pain caused by the injury sustained from the accident.
c. Juliet who takes care of her grandfather, finds it challenging to manage her caregiving responsibilities such as showering and lifting her grandfather because of the pain in her arm.
d. Juliet experiences high anxiety while driving, particularly at night, and rarely drives to town anymore.
e. The Doctor urged them not to lift heavy items.
f. Their car was severely damaged in the incident, and they are currently using a small car from a friend, which is inadequate for their needs.
g. Following the incident, the Defendant and his mother made 3 visits to them whilst they were in the hospital and apologised for what had happened. When they were discharged from the hospital they visited them 3 times. For each visit, they made they gave them $200, and for the last visit, they gave them, $2000.
h. Despite the hardships they faced, they have accepted the apology from the Defendant and are awaiting the Defendant's lawyer to draft an affidavit confirming their acceptance of the apology.
i. They do not want anything further from the defendant and seek the Court's indulgence and mercy for the defendant.
VII CROWN'S POSITION ON SENTENCING
9 The Crown relies on R v Angilau, CR 4 of 2024 and Ikahihifo v R, AC 14 of 2021 which outlines the guidelines of Gacitua v R [2012] NZCA 234.
10 Based on the offending and the relevant authorities cited, it is appropriate to impose an imprisonment sentence, as stated by Cato J in R v Fanua [2016] Tonga LR 208 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 serious injury."
11 The Crown relies on the guidelines of Gacitua that was applied in Ikaihihifo to determine the appropriate starting point. With reference to the guidelines, Highly culpable standard of driving at time of offence (a to i)
(a) The consumption of drugs (including legal medication known to cause drowsiness or of alcohol, ranging from a couple of drinks to a 'motorised pub crawl'.
12 At the time of the offence, the Defendant had consumed a significant amount of alcohol. He drank about 10 Steinlager beers at Bill Fish Bar and then drove his vehicle to Reload Bar, where he consumed an additional 5 Steinlager beers. The Defendant was so intoxicated that he could not remember driving his vehicle from Reload. His level of drunkenness was confirmed by a breath test conducted by the police at the hospital, which showed an evidential result of 1100mg/L. This incident highlights the severe risks and consequences associated with activities like a 'motorised pub crawl!'
(b) Greatly excessive speed; racing; competitive driving against another vehicle; 'showing off'.
13 According to Lance and Juliet the Defendant's vehicle drove at a very high speed.
14 In reference to Angilau a starting point of 5 years was set. Which also adopted the guidelines and categories outlined by Gacitua.
vii Suspension
15 The Crown adopts a starting point of 4 years’ imprisonment for counts 1 and 2 which are the Head sentences given the (1) high level of alcohol per litre of breath (1100micrograms), (2) Serious injuries sustained by the Victims. The starting point for count 3 should be 3 years.
16 In relation to mitigation (early guilty plea, cooperation with Police, no previous convictions, and the apology) the Crown submits that 12 months is deducted from the starting points of all three counts.
17 Regarding suspension, the Crown submits that the Defendant is eligible for a partially suspended sentence under the Mo'unga v R CA 15/97 principles. The Defendant is not young, he is 25-years-old.
18 However, the Defendant lacks any prior convictions, his early guilty plea, high rehabilitation prospects, cooperation with police, and genuine remorse, these factors must be balanced against the aggravating factors and the seriousness of the offence. The Crown believes a fully suspended sentence would not adequately address the seriousness of the offence, fail to deter such offence, fail to justly punish the Defendant, and will be inconsistent with the sentences imposed for similar cases.
19 To support the Crown's submission for a partially suspended sentence we rely on Losalu v R [2022] TOCA 24 where it was stated that-
"Where the considerations for suspension in Mo'unga are met (which may be 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"
20 Accordingly, the Crown proposes that for Counts 1 and 2 the final 18 months be suspended for 2 years with the appropriate conditions.
VIII CONCLUSION
21 The Crown submits that the Defendant be sentenced to 3 years imprisonment for Counts 1 and 2, to be served concurrently.
22 For Count 3, the Crown submits that the Defendant be sentenced to 2 years imprisonment, to be served concurrently with Counts 1 and 2.
23 The final 18 months be suspended for 2 years on the following conditions-
(a) not to 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;
(d) complete a drugs awareness course as directed by his probation officer; and
(e) he is disqualified from holding a driver's licence for two years, commencing on his date of release.
22 Time to be served by the Defendant in prison should be 18 months.
Defence submissions
1. The accused have pleaded guilty to all 3 counts in the Indictment.
2. The Accused person admits the Facts submitted by the Prosecution this case and confirm these are accurate.
3. The accused co-operated with the Police.
4. The accused pleaded guilty in the first opportunity.
5. The accused showed remorse. He and his family apologised and visited the complainant's family with financial support.
6. The Accused is mindful of the proposals for sentencing by the Prosecution which contains partial detention.
7. The Accused is mindful of the recommendation by the Probation Officer which is full suspension.
8. The Accused is young and a first time offender.
9. The Accused ask for consideration under section 204 of the Criminal Offences Act which reads as follows-
204 Discharge without conviction189
(1) Where a court is of the opinion, having regard to the circumstances including the nature of the offence and character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate, it may make an order discharging him absolutely or alternatively discharging him subject to the condition that he commits no offence during such period, not exceeding 3 years from the date of the order, as may be specified therein.
(2) A discharge under this section is deemed to be an acquittal.
(3) A court discharging an offender under this section may-
(a) make an order for payment of costs or the restitution of any property; or
(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered-
(i) loss of, or damage to, property;
(ii) emotional harm; or
(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.
10.In aid of the submission we file herewith the following documents and letters of reference-
(i) Birth Certificate of Accused person born on the 29/7/1999.
(ii) Police clearance certificate of the Accused dated 26/6/2024.
(iii) Affidavit of the Accused dated the 24/7/2024.
(iv) Copy of Degree Bachelor of Engineering (Civil) with Honours (Firs: Class) of the Accused from Fiji National University.
(v) Letter of Reference from the Acting Town Officer of Haveluloto dated the 20/3/2024.
(vi) Letter from McConnell Dowell employer of Accused dated the 19/1/2024.
(vii)Letter from Rev. Hamoni Hasiata of the Free Church of Tonga dated 20/3/2024.
(viii)5 pages of correspondence in connection with the Accused guest to further his education to a Master’s Degree from 2/3/2024 to 12/3/2024.
(ix) Letter of Reference from Mr. Giri of Ministry of Infrastructure dated 3/4/2023.
(x) Letter from Anthony Vea Senior Site Manager-QS Wharf of 19/7/2024
(xi) Letter of reference from the President of the Free Church of Tonga Rev. Semisi Fonua dated the 21/6/2024.
11. The relevant test under section 204 is discussed in the case at the Court of Appeal in R v Finau (2023) TOCA 9; AC 25 of 2022 at page 4 paragraph 26 wherein it is provided that-
This Court has held that the application of section 204 of the Criminal Offences Act requires that in considering whether to exercise the discretion to grant a discharge without conviction;
(a) The Court must have regard to:
(i) The seriousness of the particular offending; and
(ii) The circumstances of the particular offender, including the direct and indirect consequences of a conviction; and
(b) Only if the direct and indirect consequences of a conviction were out of all proportion to the gravity of the offence is it proper for a discharge to be granted;
(c) Before the Court may grant a discharge under section 204, it must be of the opinion that it is "inexpedient to inflict punishment and that a probation order is not appropriate"
12.Paragraph 27 of the said judgment provides - The sequence of reasoning to be applied when considering the application of section 204 was laid down in R v Loleini Ala
(a) First the Court must assess the seriousness of the offending including the gravity with which it is viewed by parliament, along with all relevant aggravating and mitigating factors;
(b) Secondly, the Court must consider the character and circumstances of the offender which will include any previous offending, the effect of the entry of a conviction on his career, his finances, his reputation, any civil liabilities that flow from the entry of a conviction as well as direct consequences;
(c) Thirdly the Court must be satisfied that the consequences of entering a conviction are out of all proportion to the gravity of the offending;
(d) Fourthly, the Court must stand back and consider whether in all the circumstances of the case the granting of a discharge without conviction is the appropriate result;
(e) The circumstances where it will be appropriate to grant a discharge without conviction will rarely arise and the discretion should be exercise sparingly; and
(f) It will not be sufficient that an offender is generally a person of good character, has no prior conviction, is a young person or that the victim has forgiven them.
13.The Accused does not dispute the offending is a serious crime including the gravity with which it is viewed by parliament etc. which is reflected in the sentence for this crime however the Accused respectfully submits that-
The character and circumstances of the offender any previous offending, the effect of the entry of a conviction on his career, his finances, his reputation, any civil liabilities that flow from the entry of a conviction as well as a direct consequence;
The defence have tried its best to get proof that if the accused has a conviction recorded against him for driving under the influence of liquor and causing bodily harm his chance for furthering his studies and getting employment is diminished but cannot obtain this in support of this quest.
Common sense would tell that if a person convicted under the offences as charged inevitably this will destroy any chance for further studies and employment wise.
Against all the result that no one was killed in all persons involved including the accused and the complainants and other road users is most fortunate and must be taken into account.
Section 204 is there in the Act and although it seems very hard to get it but is worth trying in view of the circumstances of the present case favouring the Accused person.
The Accused is young with a promising future and capable of rehabilitation. Instead of putting him on probation with a recorded conviction, discharging him without conviction will definitely help during his rehabilitating process. He will feel and appreciate the trust and one off chance given by the Court and will work towards the betterment of himself, his family and the country as a whole.
14. A custodial sentence is also not the appropriate penalty in my respectful submission in view of the overall circumstances and we pray for the leniency of the Court. The accused can pay a fine if ordered to do so in lieu of imprisonment as well as a suspended sentence in the event that section 204 is not appropriate.
Discussion
Conclusion
| SUPREME COURT | 13 AUGUST 2024 |
| NUKU’ ALOFA | COOPER J |
[1] Ikahihifo v R; paragraph 30
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