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. 

[4] Makalita and the respondent were good friends and after her death he apologised to her family in the customary way and the apology was accepted. The respondent's family paid restitution to Makalita's family and provided offerings including mats, food and money for her funeral. There was a letter before the Court from Makalita's mother and father asking the court to exercise leniency in sentencing and not send the respondent to prison.

[5] At the commencement of the hearing the appeal, the Crown's position was that the sentencing judge should not have, as a matter of sentencing discretion, suspended the whole of the custodial sentence. The Crown contended the sentence, in this respect, was inappropriate and manifested a miscarriage of the sentencing discretion. However for reasons which we will explain shortly, the Crown was prepared to accept towards the conclusion of the hearing of the appeal that the sentence, in this respect, could stand.

[6] In its submissions, the Crown identified a number of aggravating features in this case which included the level of the respondent's intoxication, driving while heavily intoxicated, doing so with passengers and at an excessive speed. The Crown also identified a number of mitigating factors which including that the respondent was young, a first-time offender and had potential in the future. Other mitigating factors identified by the Crown were that the respondent remained at the scene of the accident and provided assistance to the victim, co-operated with the police and pleaded guilty at the first opportunity. Also identified by the Crown as a mitigating factor was the respondent's recent loss of his mother. 

[7] None of this appeared controversial, though counsel for the respondent had, as the centrepiece of her submissions, the need for restorative justice. In support of that argument, counsel relied on a report by a social worker who had, among other things, conducted a family conference involving the respondent, his relatives and the mother of Makalita. The Crown's approach was more orthodox, pointing to a fairly consistent line of authority in the Supreme Court and this Court that a case of this type involving driving a vehicle while intoxicated and the death of another required a period of actual incarceration. That, the Crown contended, was so in this case notwithstanding the mitigating factors it conceded. Those authorities included R v Holani (2001) Tonga LR 161 and R v Tofavaha (2000) Tonga LR 316. The Crown prepared a very helpful booklet of authorities illustrating this approach which, in this Court, commenced with Hala v R (1992) Tonga LR 7.

[8] It is necessary to detail the other elements of the sentence imposed by the sentencing judge. The sentence can be summarised in the following way:

1.	The respondent was sentenced to 3 years imprisonment, suspended in total for 3 years;

2.	The respondent was to comply with a home curfew for 6 months and to remain in his home from 6 pm to 6 am;

3.	The respondent was to carry out 1000 hours of community work educating students in various schools of the dangers of drinking and driving, as well as encouraging them to wear their seat belts;

4.	The respondent was to enrol in and complete the Salvation Army's Drugs and Alcohol Awareness program; and

5.	The respondent's drivers' licence was suspended for a period of 7 years and the respondent was banned from driving any kind of motor vehicle in the Kingdom.

[9] The Crown contended there was no statutory basis to impose a curfew, the 1000 hours exceeded the statutory maximum of 120 hours in s 25A(2) of the Criminal Offences Act CAP 18 and similarly the seven-year suspension of the licence exceeded the statutory maximum of 5 years in s 29(3) of that Act.

[10] Understandably, the respondent did not contest those propositions. They are correct and these elements of the sentence cannot stand. In imposing, by order, the 1000 hours community service, the sentencing judge noted the statutory maximum of 120 hours but also noted that the 1000 hours had been agreed to by the respondent. However his Honour failed to recognize a fundamental legal principle, namely that parties cannot by agreement confer jurisdiction on a Court which the Court otherwise does not have. There was no power to make the order even if it reflected an agreement.

[11] But the effect of these orders was, in substance, to deprive the respondent of his liberty in two respects. The first was the requirement to devote the specified time to community service activities which otherwise the respondent might have chosen to use for other purposes. The second was to confine him to his home for half the 24 hour day for a period of 6 months. As was discussed in Court in this appeal, the periods in question (hours on community service and hours of confinement) can be notionally treated as days in which the respondent's liberty was constrained. One such calculation would be to treat these periods in which his liberty was constrained as as confinement for 21 weeks or approximately 5 months. There is no science in this calculation but it did have an impact, during the hearing the appeal, on the Crown's approach.

[12] The Crown's position was initially that an actual custodial sentence was appropriate and various estimates were given including between 3 and 6 months. This would be achieved, in the Crown's submission, by maintaining the sentence of 3 years imprisonment but suspending only part of it and certainly not all of it. However the Crown was prepared to concede during the hearing of the appeal that in the extremely unusual circumstances of this case (where the judge had imposed elements of a sentence without lawful foundation which had the effect of depriving the respondent of his liberty), no actual custodial sentence was necessary. The concession was both a fair and appropriate one.

[13] In the result, it is unnecessary for us to deal with the arguments advanced by the Crown and the respondent about the custodial sentence. However this judgement should not be understood as condoning a sentence on a young first offender who has brought about the death of another by driving a motor vehicle while drunk, which did not involved a period of actual imprisonment.

[14] We propose to allow the appeal in part. We set aside the order of the sentencing judge ordering 1000 hours of community service. We set aside the order of the sentencing judge imposing the curfew. We vary the order of the sentencing judge and suspend the respondent's licence for a period of 5 years from 6 December 2011. 

[15] We otherwise dismiss the appeal.

Salmon J

Moore J

Handley J