IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

CA 6/2001

R

v

Holani

Ward CJ, Burchett and Tompkins JJ 
16 July 2001; 27 July 2001 

Sentencing – too lenient – mitigating factors had too much weight – appeal allowed 

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 3pm. Later in the afternoon they picked up other companions. 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. They arrived at the home of an acquaintance. At about 11pm the respondent 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 had no recollection of the accident. 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 applied for leave to appeal against the sentence imposed.

Held: 

1. The mitigating factors referred to should undoubtedly affect both the term and the nature of the sentence. Some suspension of the sentence was appropriate. 

2. The sentencing judge, in suspending the sentence for the whole of the term of imprisonment, imposed a sentence that was inappropriate. He placed too much weight on the mitigating factors and insufficient weight on the seriousness of the offence, and the need for a sentence to demonstrate clearly and beyond doubt to the community that where serious or fatal injuries are caused by persons driving when intoxicated, a relatively severe penalty must be imposed. 

3. The application for leave to appeal was allowed and the appeal was allowed. The sentence imposed in the Supreme Court was quashed. A sentence of eighteen months imprisonment was substituted. Following service of six months of that term of imprisonment, the balance of the term of imprisonment was suspended for two years from the date of his release. The orders requiring the respondent to undertake an alcohol education course and to abstain from alcohol were quashed. The order cancelling the respondent's driver's licence and precluding him from obtaining a driver's licence for three years remained unaltered. 

Cases considered: 
R v Misinale (Court of Appeal, CA 13/99, 23 July 1999) 
R v Tofavaha [2000] Tonga LR 316 (CA) 

Statute considered: 
Court of Appeal Act (Cap 9) 

Counsel for appellant: Mr Sisifa 
Counsel for respondent: Mr Tu'utafaiva 

Judgment

Decision of Burchett and Tompkins JJ 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 3pm. Later in the afternoon they picked up other companions. One of them told the police that when he was picked up between 6 and 7pm 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. 

[4] The seriously aggravating feature of the offending is the respondent electing to drive over a lengthy period when he was heavily intoxicated, and continuing to drive at a high speed when his passengers were urging him to stop. This was premeditated offending in the sense that he elected to drive in this manner when he must have known that he was in an advanced state of intoxication. The judge was undoubtedly right when he said that his choosing to do so was a recipe for disaster, a disaster that resulted in the taking of a young life. 

Mitigating features 

[5] The respondent was at the time aged 23. He had no previous convictions. He pleaded guilty to the charge at the earliest opportunity. He was in his second year as a primary school teacher, having obtained his Diploma in Education in 1998. Several favourable references were provided to the Court. They described him as punctual, reliable, with great potential for becoming an excellent teacher, honest and trustworthy. He is an active member of his church. 

[6] The probation officer considered that he did not have an alcohol dependency, only drinking twice a month. He described him as a moderate drinker who had never been in trouble with alcohol before. 

[7] The respondent apologised in the traditional Tonga manner as did his family, taking goods and food items to the funeral as an apology as well as showing their sympathy towards the deceased's family. 

[8] A notable feature was the attitude of the family of the deceased. The judge referred to what he described as a truly magnanimous letter from the parents of the deceased. Part of the letter read: 

"So we ask mercy, Your Honour, in regard to Timote and for him to have a fine in whatever amount and we will willingly pay. We have come to regard Timote as a son. And we wish him to be under our care in exchange for our daughter. We do beg Your Honour for a bail penalty or a fine for Timote so that he could continue on with his job and also his position in the church. We have accepted Timote as our own son and we know that he does feel remorseful for what he has done" 

[9] However, this can be regarded as a mitigating factor only to a limited extent. The effect of criminal conduct on the victims of a crime is relevant, and in this case, in addition to the deceased, her family are also victims. But we do not consider that the fact that the deceased's family have been so forgiving necessarily reflects to the credit of the respondent. 

[10] There is a further aspect to which the judge did not refer. Clause 23 of the Constitution provides that no person having been convicted of a criminal offence punishable by imprisonment for more than two years shall hold any office under the Government. As a consequence, it is inevitable that the respondent either has been or will be discharged from his position as a primary school teacher. This, although not a mitigating factor, is an additional penalty that the respondent will suffer which can properly be taken into account in considering the appropriate sentence. We also note that while this clause will prevent his being employed as a teacher in a government school, it would not necessarily prevent his employment as a teacher otherwise, for example in a church school. 

The sentence 

[11] The judge referred to the circumstances of the offending, accepting that what occurred was the fault of the respondent, and that it was something he would have to live with for the rest of his life. It was inexplicable that the respondent was not able to see that drinking to the extent that he had; knowing that he was going to drive, was a straight out recipe for disaster.  

[12] He accepted that the offence was totally out of character and that the respondent was filled with remorse. The judge was influenced by what he regarded as a remarkable reference from the family. He said that it had swung the pendulum in the favour of the respondent. 

[13] The judge observed that the respondent had an enormous amount to offer the community through his teaching. He expressed the hope that the respondent would take the opportunity he was being given to get the message across to the young people he taught and other young people about the dangers of drinking and driving. The judge made these observations apparently unaware that the result of the respondent's conviction for this offence is that his opportunities to do so will be severely limited. He was satisfied that the respondent would learn from what had occurred and that a suspended sentence would have a beneficial effect. It was for those reasons that he decided that it was appropriate to suspend the whole of the sentence for two years. 

Submissions on the appeal 

[14] Counsel for the appellant accepted that a term of 18 months imprisonment was appropriate, having regard to the circumstances of the offending. But he submitted that the judge erred in suspending the sentence for all of the term of imprisonment. It was his submission that suspending the sentence for this time does not reflect the serious nature of the offence, nor does it give sufficient weight to the deterrent aspect. He submitted that the mitigating factors do not justify the suspension of the whole term of the sentence. He accepted that a suspension for part of the term was justified, and submitted that it should be suspended for half of the term, or nine months. 

[15] Counsel for the respondent submitted that the penalty imposed was appropriate. He submitted that the judge must have taken into account all relevant factors and issues particularly in view of his having referred expressly to the decision of this court in R v Tofavaha [2000] Tonga LR 316 (CA). He submitted that the judge did take premeditation into account when deciding the appropriate sentence and that the judge took into account the relevant mitigating factors. He submitted, correctly, that this court should only interfere if it can be satisfied that the sentence imposed is clearly inappropriate or manifestly inadequate. 

Decision 

[16] In Tofavaha this court considered the appropriate approach to sentencing for the offence of manslaughter by negligence in circumstances similar to the present. It said: 

"Whatever sympathy the judge may feel for the offender, he cannot escape the fact that an innocent young woman has lost her life as a result of the respondent's actions. The law has always regarded the killing of another person as extremely serious and the penalty must reflect that. There must be a place for sympathy when a court is passing sentence, but it cannot be allowed to supplant the duty to order a penalty appropriate to the facts of the offence." 

[17] In that case the respondent, who was a young prison officer of some distinction, had caused the death of a young woman in a motor accident resulting from the respondent driving a motor vehicle while intoxicated. The judge considered an appropriate sentence to be two years imprisonment but that, because of significant mitigating factors, the sentence should be suspended for the whole of the term. The appeal by the Crown was allowed, the sentence was quashed, and a sentence of two years imprisonment without any suspension was substituted. 

[18] Similar considerations apply to the present appeal. The mitigating factors to which we have referred above should undoubtedly affect both the term and the nature of the sentence. We are satisfied that in the present case some suspension of the sentence is appropriate. 

[19] This is a Crown appeal. In R v Misinale (Court of Appeal, CA 13/99, 23 July 1999) this court considered the principles to be adopted on such an appeal: 

"First, for such an appeal to succeed, clear and compelling grounds for increasing the sentence need to be established. It is not sufficient for the appellate court to consider that a more severe sentence could properly be imposed, or that the sentence imposed is inadequate or inappropriate. For a sentence to be increased on a Crown appeal, the appellate court must be satisfied that the sentence is so inadequate or inappropriate that the sentencing judge erred in that he or she must have acted upon a wrong principle, wrongly assessed a relevant circumstance, took into account irrelevant factors, failed to take into account relevant factors, or has imposed a sentence that is inconsistent with sentences the court has imposed for like offending. In such a situation, the appellate court is left with no alternative but to impose a more severe or a different sentence. If the court is so satisfied, the sentence should be increased only to the lower end of the appropriate sentencing range. Indeed, the appellate court, in fixing the proper range for this case, should take into account that it is an added penalty to have to face sentence a second time, and to have hope deferred, and perhaps dashed, in the result." 

[20] The Attorney-General, in considering whether to apply for leave to appeal under s 17B of the Court of Appeal Act (Cap 9) should pay proper regard to the principles we have set out above. This court will not entertain an appeal by the Crown unless the circumstances bring the case clearly within those principles. 

[21] We have reached the conclusion that the sentencing judge, in suspending the sentence for the whole of the term of imprisonment, imposed a sentence that was clearly inappropriate. He placed too much weight on the mitigating factors and insufficient weight on the seriousness of the offence, and the need for a sentence to demonstrate clearly and beyond doubt to the community that where serious or fatal injuries are caused by persons driving when intoxicated, a relatively severe penalty must be imposed. The order to suspend the sentence for the whole of the term is inconsistent with sentences such as that imposed by this court in Misinale. 

[22] We can see no reason for the orders the judge made requiring the respondent to undertake an alcohol education course or to abstain from consuming alcoholic liquor for two years. The evidence available to the court does not indicate that the respondent has an alcohol problem. On the contrary, the evidence is that he consumed alcohol moderately. He says that he has consumed no alcohol since these events occurred. Further, we consider an order requiring a person to abstain from consuming alcoholic liquor for a stated period should be made only in exceptional circumstances. It is an order that is impossible to enforce or police. In the case of a person with a real alcohol problem, it is unlikely to be effective. 

[23] For these reasons, we are satisfied that the sentence imposed cannot be sustained. In considering the sentence that should be imposed, we have borne in mind that it should be at the lower end of the scale. In circumstances similar to the present and with mitigating factors equally persuasive, a longer sentence or a shorter or no period of suspension may be appropriate when sentencing in the Supreme Court. 

The result 

[24] The application for leave to appeal is allowed. The appeal is allowed. The sentence imposed in the Supreme Court is quashed. A sentence of eighteen months imprisonment is substituted, to commence from the date of this judgment. Following his serving six months of that term of imprisonment, the balance of the term of imprisonment is suspended for two years from the date of his release. The orders requiring the respondent to undertake an alcohol education course and to abstain from alcohol are quashed. The order cancelling the respondent's driver's licence and precluding him from obtaining a driver's licence for three years remains unaltered. 

Judgment of Ward CJ 

[1] I have had the advantage of seeing the judgment of Burchett and Tompkins JJ and I unreservedly endorse their view of the gravity of the offence, the seriousness of the appellant's conduct and the strength of the mitigating factors. 

[2] I also respectfully adopt their opinion that the principles relating to Crown appeals against sentence stated by this Court in R v Misinale (Court of Appeal, CA 13/99, 23 July 1999) must apply to this case. Bearing those principles in mind, however, I consider that the order suspending this sentence is clearly inappropriate and cannot stand. Any offence of manslaughter by negligence, where death was the result of a deliberate decision to drive when intoxicated, must receive a sentence of immediate imprisonment. 

[3] Where I must differ from my learned colleagues is in their conclusion that the penalty in this case should properly fall at the lower end of the scale and thus allow part of it to be suspended. 

[4] This was a very serious case both in the manner in which it occurred and in its consequences. The appellant drank a substantial quantity of rum whilst he was driving. When that was consumed, he and his companions purchased more and he continued to drink and drive. Even when asked to stop by his passengers, he did not heed them and continued to drive at a high speed. Almost inevitably, he lost control of the vehicle and a young woman was killed. 

[5] This young man clearly had a bright future. His conviction will no doubt have a serious adverse effect on it and I accept that adds to the penalty. There were a number of strong mitigating factors and the sentencing judge properly allowed for those in determining the length of the sentence. The sentence of 18 months imprisonment for an offence of this gravity clearly shows that the mitigation had a very substantial effect on his decision. 

[6] As I have said this was a dreadful offence but one that is all too common in Tonga. The courts must make it clear that any person who deliberately drives when he has been drinking and continues to drive when he is plainly intoxicated will receive a severe penalty. When that conduct causes the loss of another person's life, the only appropriate sentence is one of imprisonment and suspension is inappropriate. In the case of R v Tofavaha [2000] Tonga LR 316 (CA), one in which the personal circumstances of the appellant were equally remarkable, this Court commented that the sentence of two years imprisonment was lenient and that it should be served in its entirety. To do less in this case would, in my opinion, be unjust. 

[7] The appellant is a well educated young man but the very education that enabled him to embark as such a responsible career should have meant that he, more than most people, would appreciate the danger of his conduct. A term of imprisonment is undoubtedly a heavy penalty but he will be free at the end to continue with his life. The direct result of his selfish and irresponsible conduct has deprived a totally innocent young woman of that opportunity for ever. 

[8] I consider the sentence of 18 months was the minimum that could properly be passed for an offence such as this. The appeal should be allowed. The sentence of 18 months imprisonment is upheld but the order suspending it is quashed as are the orders that he abstain from drinking alcohol and attend an alcohol education course. The order that he be disqualified from driving for three years should remain unaltered.