R v Maile [2025] TOSC 75; CR 83 of 2025 (16 September 2025)

FINAL DRAFT

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
CR 83 of 2025

BETWEEN:
REX
-Prosecution
AND:
MANASE MAILE
-Accused

SENTENCE

BEFORE: HON. LORD CHIEF JUSTICE BISHOP KC

Appearances: Ms M Lenati for the Crown Prosecution
Mr T Naufahu for the Defendant
Date: 16 September 2025

1. THE CHARGES

1. This matter was initially set for sentencing on 25 July 2025. I adjourned sentencing for a more comprehensive summary of facts to be provided from the Crown and for the Defendant to consider his plea. On that occasion, the concept of reckless driving was not accurately addressed by the Prosecution.
2. I have now received the amended summary of facts from the Crown together with the submissions from Counsel for the Defendant this morning, further confirming that the Defendant maintains his plea of guilty.
3. The Defendant pleaded guilty to the following charges;
   1. Count 1: Reckless Driving Causing Death (intoxicated, swerved at an excessive speed, crashing into a coconut tree, causing the death of Penisimani Tu’ungafasi) contrary to section 27(5) of the Traffic Act.
   2. Count 2: Reckless Driving causing Grievous Bodily Harm (intoxicated, swerved at an excessive speed, crashing into a coconut tree, causing fractures to the ribs and pelvis of Siokapesi Paunga) contrary to section 27(4) of the Traffic Act.
   100. Count 3: Reckless Driving causing Grievous Bodily Harm (intoxicated, swerved at excessive speed crashing into a coconut tree causing a lung contusion and fractures, left jaw, pelvis, and left leg of ‘Inoke Houa) contrary to section 27(4) of the Traffic Act.
        
   2. CROWN SUBMISSIONS
4. The Crown filed their sentencing submissions to assist the Court on 8 July 2025.
5. Aggravating and mitigating factors were submitted along with the following caselaw in support;
   1. Ikahihifo v R [2021] TOCA 21
   2. R v Leha’uli [2023] TOSC 5
   100. Rex v Petelo Luka Kauvaka (CR 161/24)
   4. R v Mafi [2024] TOCA 2
6. The Crown also included a victim impact report in their submissions relating parties affected.
7. The wife of the deceased stated that she was worried at first as to how she will provide for their family given that the deceased was the sole breadwinner. She states that she has forgiven you and asks that the Court consider a lenient sentencing.
8. Ms Paunga confirms she did sustain injuries to her leg but has recovered and is back on duty. She was fortunate to have her medical expenses covered by her work colleagues. She states she has forgiven you.
9. Mr Houa confirms he sustained broken bones and took almost three weeks to recover in which he had to cover his own medical expenses. He added that they were all at fault and he has nothing holds nothing against you.
10. The Crown recommended the following sentence;
    1. Count 1: 5 years imprisonment
    2. Count 2: 3 years imprisonment
    100. Count 3: 3 years imprisonment
11. In considering whether these counts are to be served cumulative or concurrent, the Crown submits that 9 months each, from Counts 2 and 3 to be served cumulative to Count 1.
12. The Defendant is to serve a total 6 ½ years imprisonment with the final 2 years suspended for 2 years on conditions.
    
    100. PRESENTENCE REPORT & MITIGATION SUBMISSION
13. A presentence report was filed from the Probation Office on 15 July 2025 where I was told about your family, upbringing and personal history.
14. You attended school, completed Form 6 at Tonga college but did not complete further tertiary education. You have been unemployed since the offending and now help with your father with farming and livestock care.
15. The Probation Office assesses the Defendant as an individual that has no previous conviction and has expressed deep remorse, and has reconciled with the victims’ families.
16. A partly suspended sentence on conditions is recommended from the Probation Officer.
17. This morning, your learned counsel on your behalf filed sentencing submissions to further assist the Court. It is highlighted here the degree of the pothole, the weather and the risk taken together with the speed in which you were driving, namely 70km/hr.
18. Counsel on reliance on the following caselaw submitted a final sentence of 2 years 3 months with the final 18 months suspended for 3 years on conditions:
    1. R v Latu [2018] TOSC 42
    2. R v Leha’uli [2023] TOSC 5
    100. R v Mafi [2024] TOCA 2
    4. R v Selupe [2021] 47
       
    4. DISCUSSION
19. This offending happened on or about 12 October 2024 where you together with your colleague Tu’ungafasi with Paunga, ‘One’one and Houa were drinking at your place of employment around 1pm at Fua’amotu.
20. ‘One’one requested to be taken home which resulted in all of you, despite having drank alcohol got into your employer’s double cap vehicle to take him home.
21. You were the driver, beside you was ‘One’one who I take was not seriously injured in this accident as no charges have been bought against you in relation to him. Behind ‘One’one was the deceased, in the middle back seat was Paunga and behind you was Houa.
22. As you drove to take ‘One’one home, at an excessive speed I am told, you overtook a vehicle near the Pelehake Primary School and as the vehicle approached Luna’eva & Sons Limited, you swerved and hit a coconut tree on the right side of the road in which a bystander witnessed and called police to report the incident.
23. Unfortunately, as a result of this accident, Tu’ungafasi passed away and both Houa and Paunga sustained injuries. To her credit, I accept that the deceased’s wife has forgiven you and you did provide support in covering the funeral costs.
24. I also accept based on what I have read that both Houa and Paunga made recoveries and neither hold what happened to them against you.
25. What is especially serious about your case is that you had been drinking at your place of employment then after, knowing you were intoxicated chose to get behind the wheel and drive with four passengers in the vehicle.
26. The Courts have seen an increase in reckless driving here in the Kingdom resulting in the community being negatively affected. This has been particularly the case when drivers have been excessively drinking. I remind myself of the importance to deter and punish such behaviour in the interest of public safety, however I must balance this with the principles of rehabilitation, noting the remorse you have shown for this offending.
27. I have considered the sentencing comparables helpfully provided by the Prosecution but as I have reiterated before, each case must be decided on its own particular facts.
28. I take Count 1 as the most serious offending in this indictment, I impose a starting point of 6 years imprisonment, reduced by 2 years to reflect your mitigation factors.
29. For Counts 2 & 3, I treat these counts equally and impose a starting point of 4 years imprisonment, reduced by 1 year again for your mitigation factors.
30. I have considered the principles of totality and whether it is appropriate that some of your sentence be served consecutive to each other. I find that although these offendings occurred in close proximity to each other, the parties affected here are all different individuals and the sentence must reflect this.
31. I take 9 months each from Counts 2 and 3 to be served concurrently to each other but consecutively to Count 1. This means your final sentence is one of 4 years 9 months.
    
    5. SUSPENSION
32. I have considered the possibility of suspension in your case, keeping in mind the guidelines provided in Mo’unga. You are relatively young, at 27 years old, you have no previous convictions and to your credit, you co-operated fully with Police and admitted to them that you were driving at a high speed that caused the collision.
33. I also find that your prospects of rehabilitation are good, and as such, I suspend the last 24 months of your sentence for a period of 3 years on conditions.
34. Should you breach any of the conditions, this will result in your suspended sentence being activated in full.
    
    6. FINAL RESULT
35. For Count 1, 4 years imprisonment with the last 24 months suspended for 3 years on the following conditions:
    1. You must not commit any offence punishable by imprisonment.
    2. You must report to the Probation Office within 48 hours of your release from custody.
    100. You must complete be placed on Probation for the period of your suspended sentence.
    4. You must complete a course on Alcohol and Drug Awareness at the direction of the Probation Office.
    5. You are disqualified from driving for the period of your suspended sentence.
36. For Count 2: 3 years imprisonment.
37. For Count 3: 3 years imprisonment.
38. In respects of Counts 2 and 3, I take 9 months from each count and impose that it be served concurrently to each other but consecutive to Count 1.
39. For the avoidance of doubt, you will serve a total of 2 years and 9 months imprisonment followed by 24 months suspended on the conditions I have already mentioned.
    

NUKU’ALOFA	HON. MALCOLM BISHOP KC
16 September 2025	LORD CHIEF JUSTICE