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Rex v Holani - Majority [2001] TOCA 12; CA 06 2001 (27 July 2001)

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

APPEAL No. CA 6/2001

BETWEEN:

REX
Appellant

AND:

TIMOTE TU'ITAVUKI HOLANI
Respondent:

Coram:
Ward CJ, Burchett J, Tompkins J

Counsel:
Sione Sisifa for appellant
Siosifa Tu'utafaiva for respondent

Date of Hearing: 16 July 2001

Date of Judgment: 27 July 2001

JUDGMENT OF THE COURT DELIVERED BY TOMPKINS J

[1] The respondent pleaded guilty to a charge of manslaughter by negligence. On 27 April 2001 he was sentenced to 18 months imprisonment, that sentence to be suspended for 2 years, subject to conditions that he enrol for and undertake an alcohol education course and that he abstain from consuming alcohol for 2 years from the date of the sentence. His driving licence was cancelled and he was precluded from obtaining a driver's licence for three years. The Crown has applied for leave to appeal against the sentence imposed.

The offending

[2] On 14 December 2000 the respondent drove the family van with a friend to Nuku'alofa. They bought a bottle of over-proof rum which they drank while driving. This was at about 3:00 p.m. Later in the afternoon they picked up other companions. One of them told the police that when he was picked up between 6 and 7 p.m. the accused and his companion were both drunk. Having consumed the rest of the rum they bought another bottle which they also proceeded to consume. They drove towards Kolomotu'a at which stage both passengers noted that the respondent was driving fast and recklessly. He overtook several cars, the drivers of which reacted adversely to his driving.

[3] They arrived at the home of an acquaintance. At about 11pm the appellant later left with several passengers in the van. One of them expressed the opinion that the respondent was drunk. As they drove off the passengers noticed the respondent driving too quickly. One of the passengers asked the respondent to stop, but he continued to drive at a fast speed. The respondent tried to overtake two cars when an approaching car appeared. The respondent swerved to the left, went off the road, lost control of the van, and collided with a parked van. One of the passengers, Monu 'Ahokovi, died as a result of the injuries she received. Other passengers also suffered serious but not fatal injuries. The respondent was so intoxicated that he has no recollection of the accident.