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R v Holani [2001] TongaLawRp 29; [2001] Tonga LR 161 (27 July 2001)

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.