R v Angilau [2024] TOSC 7; CR 4 of 2024 (22 March 2024)

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

CR 4 of 2024

REX
-v-
TEPI ANGILAU

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mr. J. Fifita for the Prosecution
The Defendant in person
Date: 22 March, 2024

The charge

1. On 22 January 2024, the Defendant pleaded guilty to one count of causing serious 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 license, contrary to section 14(1) and (3) of the same Act.

The offending

2. On or about 25 August, 2023, at approximately 2pm, the Defendant, Tepi Angilau (“Tepi”), the Complainant, Viliami Leha’uli (“Viliami”), and others were drinking alcohol at a tax allotment at Pelehake. At around 9pm, they moved to Laulea Beach at Fua’amotu to continue drinking. The group travelled in Viliami’s vehicle, license number R1949 (“the vehicle”).
3. Shortly after arriving at Laulea, Tepi and Viliami left the group to pick up a Siutita Nusi (“Siutita”) from Tatakamotonga in the same vehicle. After they picked Siutita up, they went to get a change of clothes for Tepi from Viliami’s house. Tepi, then drove them to Ciora Bar in Nuku’alofa.
4. At the Ciora Bar, Tepi and Viliami were barred from entering as they were inebriated. The party made their way back to Pelehake travelling on Taufa’ahau Road. Tepi was driving with Viliami seated at the front passenger seat and Siutita seated at the back seat.
5. Tepi was speeding. Her passengers, Viliami and Siutita cautioned and urged her to drive carefully but Tepi persisted. That escalated to an argument between Tepi and Viliami. As they approached the Tonga College at Ha’ateiho, Viliami attempted to take charge of the steering wheel to stop the vehicle. Tepi resisted causing the vehicle to swerve left and right along the Taufa’ahau Road, heading east.
6. Tepi pulled the steering wheel towards her to regain control, causing the vehicle to veer off to the right side of the road toward the University of the South Pacific campus. The vehicle crashed onto the sidewalk, flipped sideways towards a nearby fence, hitting a palm tree and landed back on its wheels.
7. As the vehicle flipped sideways, Tepi and Viliami were catapulted out of the vehicle while Siutita remained in the back passenger seat. All three were rushed to the hospital.
8. Tepi was tested for alcohol, her reading came back at 720 micrograms of alcohol per litre of breath.
9. Tepi and Siutita sustained abrasions and bruising to their face and chest. Viliami sustained a severe bilateral lung contusion with a right hemopneumothorax, soft tissue injury to his right shoulder and right flank, and multiple abrasions to his right lower back, left chest, left shoulder and abdomen.
10. Tepi cooperated with the Police and admitted to the offending. At the time of the accident, she did not have a valid driver’s license.

Crown’s submissions

11. The Crown submitted the aggravating features were, Tepi:
    1. did not have a driver’s license;
    2. had 720 micrograms of alcohol per litre of breath;
    100. drove at excessive speed;
    4. failed to heed warnings from her passengers;
    5. drove dangerously by overtaking 4 vehicles prior to the accident;
    6. overtook vehicles out of anger and resisted attempts by the passenger to stop the vehicle; and
    7. the injuries suffered by the passengers.
12. The Crown submitted the mitigating features were:
    1. She was a first-time offender;
    2. Her early guilty plea;
    100. She cooperated with Police; and
    4. Her remorse – reflected by her apologies to the victim a week after the accident.
13. The Crown referred to five comparable cases:
    1. Ikahihifo v R (AC 14/2021) –the Appellant, whilst intoxicated, drove with a passenger from Hihifo to Nuku’alofa. He drove at excessive speed, between 80 and 100km/h (in a 70km/h zone). He overtook a vehicle in front of him and collided head on with a vehicle that was travelling the opposite direction. The driver of the other vehicle died and his passenger suffered grievous bodily injuries. Niu J adopted a starting point of 9 years imprisonment for the dangerous driving causing death, and 4 years 2 months for the dangerous driving causing grievous bodily harm. A final sentence of 7 years and 6 months imprisonment was imposed for the dangerous driving causing death, and 4 years 2 months imprisonment for dangerous driving causing grievous bodily harm.

On appeal, the Court of Appeal reviewed R v Fanua [2016] Tonga LR 208 which was applied in R v Malolo CR29/15 and expressed the view that:

“..... a general starting pointy of four to five years imprisonment for reckless driving causing death, is unlikely to consistently reflect, or effect those statutory imperatives.”

The court adopted the sentencing starting point categories in Gacitua v R [2013] NZCA 234 and in determining the appropriate starting point. The appeal was allowed and a starting point of 7 years imprisonment was imposed for the dangerous driving causing death, and 4 years imprisonment for the dangerous driving causing grievous bodily harm. To reflect the totality principle, 1 year from the second count was added to the 7 years in the first count, resulting in a total of 8 years imprisonment, with the final 3 years suspended on conditions.

2. Rex v Falakiko ‘Asisi Mafi (CR 132/2023) –the Defendant pleaded guilty to one count of reckless driving causing death, and two counts of reckless driving causing grievous bodily harm. The Defendant was a first-time offender, entered an early guilty plea, expressed remorse and was forgiven by the Deceased’s family. The aggravating features included; loss of life, grievous bodily injury to his two children who were inside the vehicle at the time of the accident, and alcohol involved. A starting point, of 5 years imprisonment was fixed with a discount of 30 months in mitigation. The final sentence was 2 years and 6 months imprisonment with the final 18 months suspended on conditions.

100. Rex v Malolo ‘Inia (CR 29/2015) – the Defendant was convicted and found guilty on one count of causing death whilst under the influence of alcohol, and two counts of causing bodily injury whilst driving under the influence of alcohol (480 micrograms of alcohol per litre of breath). The Defenant, at around 2pm, was driving along the Bypass Road at Ma’ufanga. He lost control of his vehicle and hit two pedestrians who were on the road side and then crashed into the Deceased’s building and hit the Deceased causing his death from a fractured skull, with haemorrhage and cerebral oedema. The pedestrians suffered bodily harm. In determining the starting point, Cato J at 5 years lifted by 6 months for the high level of alcohol in the Defendants body at time of the offence. For the sudden crossing of the road by the pedestrians 12 months was deducted resulting in a final starting point of 4 years and 6 months imprisonment. In mitigation, the sentence was reduced by 18 months, resulting in a final sentence of 3 years imprisonment which the final 18 months was suspended.

4. Rex v Vainiaku ‘Aisea (CR160/2018) – the Defendant pleaded guilty to one count of reckless driving causing death, and one count of reckless driving causing grievous bodily harm. He drove at 65km/h at a 40km/h zone and caused the death of Hinemoa Mahoni (12 years old) and injuries to Katalina Mahoni (20 years old) who were waiting for a bus. The Defendant is a first time offender, cooperated with Police, pleaded guilty, showed remorse and made peace with the Victim’s family. LCJ Paulsen imposed a starting point of 4 years imprisonment for the reckless driving causing death. He considered the Defendant’s recklessness moderate in that he was simply travelling too quickly and exercised poor judgment. The aggravating factors of high speed, influence of alcohol and failure to respond to warnings were absent. In mitigation the starting point was reduced by 12 months, leaving a final sentence of 2 years and 3 months imprisonment. For the reckless driving causing grievous bodily harm, he was sentenced to 18 months imprisonment, concurrent to the head count. The final 21 months was suspended on conditions.
5. Rex v Mafoa’aeata Latu (CR92/2018) –the Defendant pleaded guilty to reckless driving causing death and one count of reckless driving causing grievous bodily harm. The Defendant drove 4 others with whom he had been drinking to get more alcohol. On their return the Defendant drove at a high speed and lost control of the vehicle. The car hit a lamp post on its right side, flipped onto its left and skidded into a tree where after hitting the tree it flipped back onto its wheels. This caused the death of one passenger, and grievous bodily harm to another passenger. LCJ Paulsen imposed a starting point of 5 years and 6 months imprisonment for the reckless driving causing death. He received a discount of 27 months for his early guilty plea, clean record, remorse, reconciliation with families of the victim and his attempts at dealing with his alcohol problem.

As a result, the Defendant was sentenced to 3 years and 3 months imprisonment for the reckless driving causing death. The final 15 months was suspended on conditions for two years. For the reckless driving causing grievous bodily harm, he was sentenced to 18 months imprisonment, served concurrently to the head sentence.

14. The Crown noted they had not found any comparable cases in this instant, hence their reliance on cases involving reckless driving causing death and reckless driving causing grievous bodily harm.
15. The Crown submitted the following sentencing formulation:
    1. That a custodial sentence was appropriate;
    2. A starting point of 2-3 years’ imprisonment to be uplifted by 12 months to reflect the aggravating factors;
    100. A discount of 12 months in mitigation and a further 6 months for Viliami’s role in the incident;
    4. A further discount of 6 months for the inconsistency in the indicative sentencing submissions recommending a fully suspended sentence;
    5. Resulting in a final sentence of 2 years imprisonment with the final 18 months suspended on conditions;
    6. For a discharge without conviction for the second count; and
    7. To disqualify the Defendant from obtaining a driver’s license for a period of 2 years commencing on the date of her release from prison pursuant to section 34(2) of the Traffic Act.

Victim Impact Report

16. Viliami confirmed that at the time of the offending, Tepi was his partner and they lived together at Pelehake for about a month. Tepi had approached him a week after the accident whilst he was still hospitalized and apologised, which he accepted.
17. His right collarbone was dislocated but it does not affect his daily life activities. He has no problem with his respiration given his lung was severely injured. The medical report confirms his other injuries are gradually healing and progressing.
18. Despite his rapid recovery, he no longer lives a normal life as he is prohibited from engaging in physical activities that may pose threats to his injuries for a period of one year. This includes working in his plantation as he often gets dizzy when he bends.
19. Viliami seeks the Court’s indulgence and mercy for Tepi.

Pre-sentencing report

20. Tepi was directed on 22 January, 2024 and again on 7 March, 2024, to attend the Probation Office for the purposes of obtaining a Pre-sentencing report. She has elected not to do so.

Starting Point

21. The maximum statutory penalty for each count is as below:
    1. Count 1 – 15 years’ imprisonment;
    2. Count 2 – a fine not exceeding $500.
22. Count 1 is obviously the head count. I have considered the Gacitua guidelines applied in Ikahihifo and find that this was not an offence involving a momentary dangerous error of judgment or a short period of bad driving. It was a highly dangerous offending where the Defendant had consumed alcohol to a level where she was rejected from entering a bar, she drove at an excessive speed causing her passengers to warn her and intervene, she disregarded warnings from Viliami and Siutita, she resisted attempts by Viliami to stop the car, and overtook 4 vehicles just before the accident. She was driving below acceptable standard as she did not have a driver’s license. I find the Crown’s suggested starting point inconsistent with the aggravating features it identified at paragraph 11 above and the guidelines adopted in Ikahihifo. The facts suggest the presence of more than 3 of the aggravating features identified in that case warranting a starting point of 6 years imprisonment.
23. The principles in R v Fanua^[1] as noted by the Crown, which involved a reckless driving causing death charge, could equally be applied here, where the Court said:

“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.”

24. It is fortunate for Tepi that this offending did not claim lives and the injuries weren’t worse given the nature of her conduct. The summary of facts described she and Siutita suffered abrasions and bruises on the face and chest. The victim impact report did not contain any input from Siutita. That would have been helpful. Viliami’s injuries were serious and having regard to the maximum penalty of 15 years as opposed to 10 years in the jurisdiction of New Zealand where Gacitua was decided, the importance of imposing sentences which adequately reflect the community’s denunciation for this type of conduct and the need for specific and general deterrence, I set a starting point of 5 years imprisonment for Count 1 and a $350 fine for count 2.

Mitigation

25. Tepi is 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 apologizing to the victims a week after the accident. Viliami accepted her apology and seeks a lenient sentence for Tepi. For those reasons, I am prepared to deduct 2 years off the starting point, resulting in a final starting point of 3 years imprisonment and deduct $150 from Count 2 resulting in a fine of $200.

Suspension

26. As against the principles in Mo’unga [1998] Tonga LR 154, the Defendant is neither young nor old and should have known better. She is a first-time offender. She has demonstrated remorse by apologizing 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 my view, that was a strong indication of her remorse and taking accountability for her conduct.
27. The Crown considered Viliami’s attempts to stop the car a contributing factor to the offending. I do 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. I do not believe it reflects the gravity of Tepi’s conduct or the harm suffered by Viliami.
28. Having said that, she cooperated with the police and I believe she has learnt her lesson and that she will take the opportunity offered by a suspended sentence for rehabilitation. For those reasons, I suspend the final 26 months of her sentence on conditions.
29. The Crown further submitted that the sentence for count 2 be discharged without a conviction. Section 204(1) of the Criminal Offences Act provides:

“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.”

30. With respect, I do not agree that a discharge without conviction is appropriate this instant. To do so would be to turn a blind eye to her flagrant disregard of the law in driving without a license, and putting the safety of others and road users in danger. Had she paid heed to that, she would not be in this situation and Viliami would not be physically limited in his day-to-day life as he is today.

Result

31. Tepi Angilau, the Defendant is convicted of:
    1. One count of causing serious bodily injury while driving under the influence of alcohol and is sentenced to 3 years imprisonment; and
    2. One count of driving a motor vehicle without a valid motor driver’s license and is fined $200 payable within 6 months from the date of her release from prison.
32. The final 26 months of her sentence is suspended for a period of 2 years from the date of her release from prison, on conditions that during the said period of suspension, the Defendant is to:
    1. Not commit any offence punishable by imprisonment;
    2. Be placed on probation;
    100. Report to the Probation Office within 48 hours when released from prison; and
    4. Complete courses in drug and alcohol awareness as directed by her probation officer;
33. Failure to comply with any of the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to serve her head prison sentence.
34. Subject to compliance with the said conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 10 months in prison.
35. Pursuant to s34(2) of the Traffic Act, the Defendant is disqualified from obtaining a driver’s license for a period of 12 months commencing on the date she is released from prison.
    

NUKU’ALOFA	P. TUPOU KC
22 March, 2024	ACTING LORD CHIEF JUSTICE

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^[1] [2016] Tonga LR 208