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Court of Appeal of Tonga |
IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY
AC 22 / 2024
[CR 91 / 2024]
BETWEEN
MANLY MANU SOAKAI PULU
Appellant
AND
REX
Respondent
Hearing: 11 November 2024
Court: Randerson J, Harrison J and Dalton J
Counsel: William Edwards for the Appellant
: James Lutui, DPP for the Respondent
Judgment: 20 November 2024
________________________________________________________________________
JUDGMENT OF THE COURT
_______________________________________________________________________
[1] This is an appeal against sentence. The appellant pleaded guilty to three counts of causing bodily injury whilst driving under the influence of alcohol contrary to s 34(1) of the Traffic Act. He was sentenced to three years imprisonment, with the last 18 months suspended for two years. The ground of appeal is that the sentence was manifestly excessive. As part of his submissions, counsel for the appellant points to a remark of the sentencing judge which, it is said, shows he was proceeding on a factual basis not made out by the evidence, and makes submissions which, in effect, say that the sentencing judge erred in applying principles of totality.
Facts of the Offending
[2] At 9.40 pm, with a blood/alcohol concentration of 0.11, the appellant drove his car on the wrong side of the road at speed. It collided with a car carrying a family, which was driving on its correct side of the road.
[3] The family were all injured, thus resulting in the three counts charged against the appellant. The husband had blunt abdominal trauma, a very deep laceration to his thigh, about 12 cm long, and multiple abrasions to his forehead, legs and left wrist. His wife suffered from a fracture to her left arm, four lacerations to her left shin, all of which required suturing, and abrasions to her forehead, right wrist and both feet. Their two year old child suffered an injury to her forehead, a laceration to the back of her right ear, abrasions to her right knee, and a laceration to her right foot.
[4] The child had to re-learn to walk after recovering from the injuries. Both the husband and wife suffered relatively minor, but ongoing, difficulties as a result of their injuries. The family car was severely damaged in the accident, and at the time of sentencing still could not be used.
[5] The appellant was 24 years old at the time of the accident. On the day in question he began drinking at about 3.30 in the afternoon. He consumed about 10 bottles of beer at one bar, before proceeding to another bar (driving his car to get from one to the other). At the second bar he consumed another five bottles of beer. He told police that he could not give a version of events as he was too drunk to know what happened.
[6] There is no doubt that the appellant was remorseful for his behaviour. He pleaded guilty three months after the accident. He and his mother made three visits to the family while they were in hospital, and apologised for his behaviour. After the family was discharged from hospital, they visited three more times. At each visit they gave the family money, in total $4,000. The family has accepted the apology made by the appellant, and a submission was made below that they sought “the Court’s indulgence and mercy” for the appellant.
[7] The appellant has no previous convictions and it is clear that he has lived a productive and useful life. He has a degree in engineering from the Fiji National University. At the time of sentence he had been employed by the Ministry of Infrastructure, and then with a large engineering firm as a civil engineer in Tonga. He was contemplating further study. On sentence, his counsel tendered excellent references from his employers and from Church and other responsible figures.
[8] The pre-sentence report records that the appellant grew up in a good and decent family and has always behaved as a responsible member of that family. He told the pre-sentence report writer that he fell asleep before the accident. The report writer considered that the appellant had “a bright future ahead of him with his profession despite being convicted for his mistake”. The writer expressed the view that while a sentence of imprisonment was “inevitable”, the probation officers would be available to supervise him.
Prevalence of this Offence
[9] In his reasons for sentence, the judge below said the following:
“17. There has been described to have been ‘... an alarming rise...’[1] in driving of this sort seen in this case, albeit, that thankfully no one was killed.
[10] From the footnote in the sentencing remarks, it can be seen that the judge cited Ikahihifo v R, AC 14 of 2021, as authority for his remark that there had been an alarming rise in this type of offending, by which it was clear he meant drink driving. Ikahihifo contains a very thorough review of sentences imposed for the offence of reckless driving causing death, and in particular discussed amendments made in 2012 to increase the maximum sentence for that offence. It was in that context that the Court of Appeal in Ikahihifo said, “Parliament clearly intended that more severe sentences be imposed for such offending, potentially even greater than for what may have hitherto constituted manslaughter by negligence. It also clearly intended to provide greater deterrence to reduce the alarming rise in the incidence of such driving and its tragic consequences.”
[11] We cannot see that the judge’s reference to Ikahihifo was out of place. His remark at the end of paragraph 17 of the sentencing remarks shows that he was aware that Ikahihifo concerned the offence of reckless driving causing death, rather than the offence of causing bodily injury while driving under the influence of alcohol. Although not all cases of reckless driving causing death will involve the use of alcohol or drugs, the case of Ikahihifo did involve the consumption of an excessive amount of alcohol before driving. In this context, the judge’s remark at paragraph 17 of his sentencing reasons was pertinent. As he said at paragraph 18 of his reasons, “The public must be protected from people who drink and drive”.
[12] It was submitted that there was no evidence before the sentencing judge that there had been any rise in the incidence of drunk driving. That was true, but a Court is entitled to take judicial notice of matters which are so generally known or within the public domain, that every ordinary person is likely to be aware of them.[2] Here, where the Court of Appeal had made comment on the alarming rise in the incidence of a related offence, and where the primary judge must surely have been aware of the number of cases coming before the Supreme Court, we cannot see anything to criticise in the comments he made.
Comparable Cases and Totality
[13] The judge noted that s 34(1) of the Traffic Act imposed a maximum penalty of 15 years imprisonment for the offending. Having reviewed the comparable cases he said:
“11. Count 1, the head count, a starting point of 21/2 years. This is increased to 3 to reflect the high level o intoxication and high speed.
[14] The appellant contended that the starting point for count 1 was too high, when regard was had to other comparable cases. In particular, it was said that the starting point was not supported by the judgment in the case of Ikahihifo (above). Ikahihifo dealt with sentences imposed for two offences, dangerous driving causing death and dangerous driving causing grievous bodily harm. It was a case where this Court resentenced the appellant. The case supports a starting point of four years in the case of dangerous driving causing grievous bodily harm. It may be accepted, as the appellant submits, that driving so as to cause bodily harm while intoxicated is a lesser offence than dangerous driving causing grievous bodily harm. Nonetheless, we think that difference was adequately reflected in the fact that the judge’s starting point for the sentence on count 1 was two and one-half years. We think that was appropriate, in itself, and by comparison with the starting point for dangerous driving causing grievous bodily harm in Ikahihifo. We also think it was appropriate for the sentencing judge to give a 12 month reduction in the sentence he imposed to account for the plea, remorse and reparations, and the promising indications for rehabilitation: youth, professional qualification, good employment and good references.
[15] We have difficulty with the judge’s increasing the starting point sentence from two and one-half years to three years to reflect the high level of intoxication and high speed of the appellant’s driving. It is true that the appellant was highly intoxicated, and drove too fast, on the wrong side of the road. However, those sort of factors were also present in Ikahihifo, and when the reasons of the Court of Appeal in that decision are considered, it is clear that in setting the starting point (relevantly here) of four years imprisonment for dangerous driving causing grievous bodily harm, those considerations were taken into account. That is, those aggravating factors were not treated as meriting a separate increase on that starting point. The relevant part of the Court’s reasoning in Ikahihifo is as follows:
- In the instant case, the appellant's conduct involved a number of the aggravating factors referred to Gacitua, within the 'highly culpable standard of driving at time of offence' category, namely:
(a) consumption of alcohol, to the point of the appellant being observed as 'drunk', and which, as described in Fallowfield, demonstrated an 'element of wilfulness that is repugnant and reflects disregard for the law and for the safety of others'; and
(b) excessive speed.
[16] The appellant’s driving was similar to the driving described in Ikahihifo, he was drunk, and he drove too fast, but it did not involve deliberately aggressive or risk-taking behaviour. There may be cases where, as well as being drunk, a driver does choose to engage in that sort of contumelious driving. In such a case there may be room to increase the starting point because of that contumelious driving. However, there was nothing of that sort here. To increase the starting point of two and one-half to three years to reflect the appellant’s high level of intoxication and poor driving meant that the sentencing judge reasoned in a way which would lead to a higher sentence than the reasoning of the Court of Appeal in re-sentencing Mr Ikahihifo. Nonetheless, by itself, we cannot see that the six month increase was so out of line with Ikahihifo as to be described as manifestly excessive.
[17] However, we think that six months increase, together with the six month cumulation on both of counts 2 and 3, did in combination, result in a sentence which was manifestly excessive and out of line with the decided cases.
[18] One of the things which must be reflected in any sentence is the consequence of the offending in the particular case.[3] Consequently, it is legitimate for a sentencing judge to consider that a drunk driver who collides with a car carrying three people, injuring them all, is deserving of a more severe punishment than a drunk driver who collides with a car injuring only the sole occupant of that car. Thus, in this case, it was open to the sentencing judge to make some cumulation between the three offences.
[19] However, when a Court is sentencing for more than one offence, “It is always necessary to fix an appropriate sentence for each offence before considering questions of cumulation, concurrence and totality and the mitigating effects of youth must be considered at all stages”.[4] The totality of the sentence imposed must be a just and appropriate measure of the total criminality displayed by the offender, but must not be a crushing sentence because of the cumulation of individual sentences. The court must consider whether or not unmodified accumulation of the sentences produces “an appropriate relativity between the totality of the criminality and the totality of the sentences”.[5] Usually, the sum of cumulative sentences will be reduced downward “to produce an ultimate aggregation which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences if each were viewed alone”.[6]
[20] When imposing cumulative sentences on a young offender, prospects of rehabilitation, and the young person’s prospects of living a law-abiding life in the future, are very important factors to consider. Once a sentence satisfies the proper principles of punishment, denunciation and protection of the community, that is enough; a longer sentence is not justified. A longer sentence might do harm because it takes away a young person’s hope for the future.[7] The appellant is still young; he has lived a decent, law-abiding life until this accident. He has achieved a great deal by study and work, and is valued in the community. He has made reparations to the victims. He is remorseful and intelligent enough to learn from his mistake. In short, he has excellent prospects for rehabilitation. This must play a significant mitigating role in imposing a sentence for offending which, while serious, was not malicious, and did not display a high degree of criminality.
[21] Here, the primary judge did recognise that a significant reduction had to be made to the sentences on counts 2 and 3 if they were to be imposed cumulatively with the sentence on count 1. However, it seems to us that the sentencing judge did not sufficiently moderate the effect of the two cumulations and the six month increase to reflect high intoxication and poor driving. Together, the three increases meant that the sentence below was manifestly excessive. Therefore, this Court should give leave to appeal against sentence, allow the appeal and re-sentence the appellant.
[22] In re-sentencing the appellant, we would adopt the sentencing judge’s starting point of two and one-half years on count 1. We would add a three month cumulation on both counts 2 and 3 and then, like the sentencing judge below, reduce that three year sentence by 12 months to reflect the appellant’s guilty plea, remorse, reparations and good prospects for the future. Thus we would impose a sentence of two years imprisonment. To further reflect the appellant’s good character, remorse and good prospects for living a productive and law-abiding life, we would order that the last 18 months of that sentence be suspended for 18 months on conditions that he: (1) not leave the Kingdom of Tonga during the period of his suspended sentence; (2) not commit any further offence punishable by imprisonment during the term of the suspended sentence; (3) undertake an alcohol education program and a life skills education program; (4) remain on probation during the term of the suspended sentence, and (5) is disqualified from driving during the term of the suspended sentence.
[23] Result
- (1) Leave is granted to appeal against sentence.
- (2) The appeal is allowed.
- (3) The sentence below is set aside.
- (4) The appellant is sentenced to two years imprisonment.
- (5) That the last 18 months of the sentence are suspended on the conditions set out above.
______________________
Randerson J
______________________
Harrison J
_______________________
Dalton J
[1] Ikahihifo v R; paragraph 20.
[2] Holland v Jones [1917] HCA 26; (1917) 23 CLR 149, 153-4.
[3] R v BZD [2023] QCA 59, [15].
[4] Azzopardi v R [2011] VSCA 372; (2011) 35 VR 43, [54].
[5] Street CJ in R v Holder and Johnston [1983] 3 NSWLR 245, 260, cited in Azzopardi (above), [59].
[6] Azzopardi (above), [59].
[7] Magee v R [1980] WAR 117, cited in Azzopardi (above), [61].
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