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Rex v Tau'alupe [2012] TOCA 8; AC 5 of 2012 (12 October 2012)

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

AC 5 of 2012
[CR 271 of 11]

BETWEEN:

REX
Appellant

AND:

POLONGA TAU'ALUPE
Respondent

Coram : Salmon J

Moore J

Handley J

Counsel : Mr. Kefu (Solicitor General) for the
Appellant
Mrs. Taumoepeau for the Respondent

Date of hearing : 4 October 2012

Date of judgment : 12 October 2012

JUDGMENT OF THE COURT

[1] This is a Crown appeal against sentence. The respondent is a young man who was convicted, on a plea of guilty, of manslaughter by negligence. He was sentenced on 6 December 2011. The sentence contained a number of elements and included a sentence of 3 years imprisonment which was wholly suspended for 3 years. As a result of a concession made by the Crown during the hearing of the appeal, the issues to be resolved by this Court narrowed considerably.

[2] The incident which gave rise to the charge involved alcohol, a car, excessive speed and ultimately the tragic death of a young woman. The respondent was 20 years old. On 3 September 2011 the respondent had been consuming alcohol at a party at his home. At about 11:30 pm he agreed to drive a friend, Makalita Taulahi, home after another person who was to give her a lift home, failed to materialise. Makalita sat in the rear of the vehicle though she did not put on her seatbelt. The respondent drove the vehicle at high speed along Vuna Road. He lost control of the vehicle. It hit an electric power pole and smashed into a pine tree. At the time the vehicle was travelling at approximately 100 km/hr. Makalita was thrown from the vehicle and suffered fatal injuries. The respondent and another passenger were able to get out of the vehicle and stop a passing vehicle. Makalita was rushed to hospital but pronounced dead on arrival. A breath test reading established the respondent had, at the time, 760 mg of alcohol per litre of breath, approximately four times the legal limit.

[3] Before this incident, the respondent appeared a responsible young man who had commenced to study law in New Zealand in 2009. He was an only child. His studies were interrupted in the year of the accident by the untimely death of his mother which had a major impact on him. He returned to Tonga in February 2011 and suspended his studies.