IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 92 OF 2018

BETWEEN:	REX 

-	Prosecution  

AND:	MOFOA’AEATA LATU

-	Accused 

To: 	Mr. T ‘Aho for the Prosecution 
Mr. S Tu’utafaiva for the Defendant 

Date of Hearing:	24 August 2018.
Date of Ruling: 		24 August 2018

SENTENCING REMARKS.

	The offences
[1]	Mafoa’aeata Latu was charged with one count of reckless driving causing death contrary to section 25(5) of the Traffic Act and one count of reckless driving causing grievous harm contrary to section 25(4) of the Traffic Act.  
[2]	Mr. Latu pleaded guilty to both counts upon arraignment on 26 July 2018 and appears today for sentencing.
[3]	These are very serious offences.  The maximum sentence for reckless driving causing death is 15 years imprisonment (section 25(5)) and for reckless driving causing grievous harm, 7 years imprisonment or a fine of up to $25,000 or both (section 25(4)).
	The facts
[4]	Mr. Latu is a 26 year old man and at the time of the offence he was unmarried.  He has since married and has one child under 1 year old.  
[5]	On 3 March 2018 Mr. Latu and others were drinking at Kanokupolu.  They retired to Mr. Latu’s house and kept drinking.  It was late in the evening when they decided to drive to get more alcohol in Mr. Latu’s car.  Mr. Latu drove the car with four passengers.  
[6]	On the way back Mr. Latu was driving at high speed and lost control of his car.  The car hit a lamp post on its right side and flipped onto its left side and skidded into a tree where it flipped back to its normal state.  
[7]	One passenger in the car, ‘Aisake Laevelua a 36 year old man, was thrown from the car and died a few days later in Viola Hospital from injuries that he suffered.  Another passenger, Senitilia Siale was rendered unconscious in the car and suffered a fractured cervical spine and soft tissue injuries for which she spent 6 weeks in hospital.  She is still suffering effects from her injuries and is receiving treatment.
[8]	Reckless disregard for the safety of his passengers, excessive speed and excessive alcohol consumption all contributed to Mr. Latu losing control of his car resulting in the collision.  
[9]	The probation report notes that Mr. Latu admits he was drinking that night and that at around midnight he ‘blacked’ out under the influence of alcohol and so cannot remember anything that happened until he woke up in hospital the next day after the collision.  
[10]	Ms. Siale said to the Probation Officer that on the drive to get the alcohol no one complained about the speed at which Mr. Latu was driving but on the return journey he progressively increased his speed to a very high level and everyone in the car was worried and were asking him to slow down but he stayed silent. 
	The information before me
[11]	I have before me the agreed Summary of Facts, the submissions of the Prosecution, a Probation report and Victim Impact Statements along with a reference in support of Mr. Latu from the Town Officer of Kanokupolu.  I have had regard to them all.  At the hearing this morning Mr. ‘Aho also referred me to two further cases (R v ‘Inia CR 29/2015 and R v Afu CR 10/2017) and I have read them.  The decision I have reached as to the appropriate sentence to be imposed in this case is consistent with them.  I have heard also from Mr. Latu’s Counsel, Mr. Tu’utafaiva who properly accepts that a period of imprisonment is inevitable but asks that some part of the sentence be suspended. 
[12]	The information discloses that Mr. Latu comes from a stable family but left secondary school without any formal qualification.  He has one previous criminal conviction for a minor offence.  He has had a long term ongoing problem with alcohol and is described as a ‘weak’ member of the Mormon Church because of behaviors arising out of his alcohol consumption.  
[13]	Mr. Latu is presently unemployed but until this offending was a seasonal worker to Australia.  His contract is now terminated.   
[14]	In accordance with Tongan custom Mr. Latu has offered an apology and reconciled with the family of the deceased and with Ms. Siale.  He has provided food, artifacts and a cash payment of TOP$1,000 which has been accepted.  Both the deceased’s family and Ms. Siale have suffered significantly (as set out in the Victim Impact Statements).  In the case of the deceased’s family they have suffered the tragic loss of a family member who also made a significant contribution to the family’s financial needs.  In the case of Ms. Siale, she continues to suffer physical effects from her injuries.  However the Court is asked for leniency on Mr. Latu’s behalf and for a non-custodial sentence so that he may rehabilitate himself.   
[15]	Since the offending Mr. Latu has married and according to his wife he has now ‘totally quit’ drinking. 
	The law
[16]	The lead offence is reckless driving causing death.  The maximum sentence of imprisonment, as I have indicated, is 15 years imprisonment.  In the case of R v Fanua [2016] Tonga LR 208 Cato J made some comments which are apposite in this case and are worth repeating:
[4] I was informed by the Crown that this is the first case concerning sentence by this provision of the Traffic Act as amended in 2010 for reckless driving where the elements consist of speed and driving in a manner dangerous to the public, rather than being an offence of causing death or serious injury under the influence of alcohol.  Parliament imposed a 15 year maximum for reckless driving causing death, as it did for excess alcohol causing death.  …..In my view, this was a clear indication by Parliament that sentences should reflect the fact that very serious cases involving violations of traffic law resulting in death should result in longer sentences of imprisonment….
[5] I consider, by comparison with rape cases where the maximum sentence is 15 years imprisonment also and [the] Court of Appeal has stated that the starting point should be five years, a starting point for this offending should be between 4 to 5 years imprisonment.  In cases involving highly dangerous driving, where there are multiple victims, or other aggravating circumstances, the starting point may be increased….
[6] I consider that Courts, in cases of reckless driving where a death or serious injury results, must impose sentences which deter others from driving in this manner and causing death or injury to other members of the public.  The sentences must serve as an example to others to ensure the security or safety of the public and to properly reflect the fact that a person has died or suffered serious injury.  
[17]	On the facts of Fanua, which involved recklessness at the lower end of the scale by an unlicensed driver, Cato J considered that the starting point for sentencing purposes should be four years imprisonment with an additional 6 months imposed as an aggravating feature because the accused had chosen to drive without a license. 
[18]	This case represents more serious offending.  The involvement of alcohol, a lack of concern for the safety of his passengers who had requested that he slow the car and very excessive speed are all aggravating features.  Taking into account those matters and the maximum sentence of 15 years imprisonment (indicating what must be Parliament’s concern that reckless driving causing death is punished severely) I consider the starting point for sentencing purposes must be 5 years 6 months imprisonment.  Indeed, I consider this a lenient starting point which I have arrived at only after having regard to the views of the victims to exercise leniency. 
[19]	I note that Mr. Latu was previously convicted of disorderly conduct.  I expect that this was related to his problems with alcohol but for present purposes I am prepared to regard Mr. Latu as having no relevant prior convictions and that he is to be regarded as a first offender.  I accept that he is remorseful for his conduct, is making attempts to deal with his alcohol problems and has reconciled with the victims’ families.  In respect of these matters I give a 12 month discount on the starting sentence.  
[20]	Mr. Latu is also entitled to credit for his guilty plea which I accept was entered at the first available opportunity and for which I discount his sentence by a further 15 months.  
[21]	The result is that I sentence Mr. Latu to 3 years’ and 3 months imprisonment.  
[22]	I have considered whether the sentence should be suspended in full or part.  I consider Mr. Latu meets the requirements for the suspension of some portion of his sentence but I cannot accept the submission that his sentence should be fully suspended (Mo’unga [1998] Tonga LR.).  Whilst Mr. Latu is to be regarded for present purposes as a first offender, may well rehabilitate himself if he remains away from alcohol and he assisted the authorities his offending was grave, resulted in the loss of a man’s life and serious injuries to another and contained serious aggravating features.  It would not reflect the seriousness of his offending, the consequences of it nor the public interest in denunciation and deterrence to fully suspend his sentence.  In the circumstances I have decided to suspend the last 15 months of his sentence. 
	Result
[23]	On the offence of reckless driving causing death contrary to section 25(5) of the Traffic Act Mr. Latu is convicted and sentenced to 3 years and 3 months imprisonment.  The last 15 months of his sentence of imprisonment is to be suspended for two years subject to the following conditions:
(a)	He will commit no offences punishable by imprisonment during the period of the suspension;
(b)	He will be placed on Probation during the period of the suspension and is to live where directed by his Probation Officer; 
(c)	He is to enroll and complete within 6 months of his release from Prison both Life Skills and Drug and Alcohol Abuse courses with the Salvation Army or some other suitable provider as directed by Probation.
[24]	In addition to the above, under section 29(1) of the Traffic Act I cancel Mr. Latu’s driving license (if any) and disqualify him from obtaining any driver’s license for a period of 3 years from today’s date.
[25]	In relation to the count of reckless driving causing grievous harm contrary to section 25(4) of the Traffic Act, Mr. Latu is convicted and sentenced to 18 months imprisonment to be served concurrently with the offence of reckless driving causing death. 

	                                                                              O.G. Paulsen 
NUKU’ALOFA:  17 August 2018.	           LORD CHIEF JUSTICE