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R v Vea [2025] TOSC 34; CR 219 of 2024 (17 April 2025)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU'ALOFA REGISTRY

CR 219 of 2024

REX

-v-

‘Olivieta Leiorina VEA

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC

Appearances: Mr G. Aleamotu’a for the Prosecution

Defendant in Person

Date: 17 April, 2025

The proceedings

1. On 30 January 2025, the defendant pleaded guilty to Count 1, causing bodily injury while driving under the influence, contrary to section 34(1) of the Criminal Offences Act and Count 2, Reckless Driving, contrary to section 27(1) of the said Act.

The offending

2. On or about 2 August 2024, around 7pm, the complainant attended a work party at Sia’atoutai together with the defendant and their two children. Both the complainant and defendant consumed alcohol at this party. The defendant had more than 5 glasses of wine.
3. Around 9pm, the complainant and the defendant got into an argument. The complainant then took the defendant and their two children to her parent’s home at Pahu.
4. The complainant told the defendant that she was to stay with the children at Pahu while he returned to the work party. The defendant did not agree and another argument ensued.
5. When they reached the home at Pahu, the complainant parked the vehicle at the front of the home, beside the road. The complainant took the children in.
6. Meanwhile, the defendant got into the driver’s seat. When the complainant returned to the vehicle, she stood on the accelerator pedal. The complainant grabbed the door of the vehicle, in an attempt to stop the defendant driving off and called out for her to stop.
7. The defendant did not stop. The complainant lost his grip of the door and the defendant drove off before swerving to collide with an electric pole beside the road.
8. Police Officer Hefa was at a nearby house and heard a loud noise. He went outside to investigate and saw the defendant fleeing from the crime scene. He pursued her. When he caught up with her, he noticed her face was covered in blood. He informed her he was a police officer and that she will be taken to the hospital.
9. At around 11:36pm, Police Officer Pulupaki took a passive alcohol test, screening test and evidential test from the Accused, obtaining test results of 820 micrograms of alcohol per litre of breath.
10. The complainant was attended to by Dr. ‘Isileli Tu’ipulotu. He reports his injuries as;
    1. a comminute fracture of the right clavicle;
    2. right lung contusions; and
    100. proximal femur fracture.
11. The defendant cooperated with the Police and admitted to the offending. She has no previous convictions.

Crown’s submissions

12. The Crown considered the aggravating features to be:
    1. a measurement of 820 micrograms of alcohol per litre of breath at time of crime;
    2. the complainant’s injuries required surgery;
    100. the defendant was pregnant.
13. The Crown considered the mitigating features to be:

a) the early guilty plea;

b) lack of previous criminal record;

c) cooperation with the police; and

d) the complainant’s clemency.

Victim Impact Report

14. The victim and defendant are husband and wife and have reconciled. Their children are all under the age of 3. Mr Vea wrote to the court seeking mercy on behalf of his wife for their young children’s sake.

15. The Crown referred to the following comparable sentences:

1. Manly Manu Soakai Palu v Rex AC 22 of 2024- The appellant pleaded guilty to three counts of causing bodily injury whilst driving under the influence of the alcohol measuring 1,100 micrograms of alcohol per litre of breath. He was remorseful and presented a form of compensation to the victims. A starting point of 2 ½ years’ imprisonment was imposed, lifted to 3 years to reflect the high level of intoxication and speed involved. Six months from counts 2 and 3 were added to the 3 years resulting in starting point of 4 years’ imprisonment, reduced by 12 months in mitigation. The defendant appealed.

The Court of Appeal found that the starting point of 3 years was manifestly excessive. The Appeal was allowed and set aside. In resentencing the appellant, the court of appeal set a starting point of 2 ½ years and added 3 months on from counts 2 and 3 to be served cumulatively. To reflect the appellant’s guilty plea, remorse, reparations and good prospects for the future the sentence was reduced by 12 months, resulting in a final sentence of 2 years. For good prospects for living a productive and law-abiding life, the court of appeal suspended the last 18 months of the sentence for 18 months on conditions.

2. Rex v Angilau CR 4 of 2024- The defendant pleaded guilty to one count of causing bodily injury while driving under the influence of alcohol and one count of driving a motor vehicle without a valid motor driver’s license. A starting point of 5 years’ imprisonment was imposed and reduced to a final starting point of 3 years’ imprisonment for Count 1. The final 26 months of her sentence on conditions.

100. Rex v Latanoa Fonua- The defendant pleaded guilty to causing bodily injury while driving under the influence of alcohol. After drinking with friends, the Accused drove to Nukunuku. On the way, he lost control of the vehicle, hitting an 11-year old boy at the bus stop. The accused was tested with a result of 734 milligrams of alcohol per litre of breath. A starting point of 3 years uplifted by 1 year for the aggravating factors resulted in a starting point of 4 years’ imprisonment, reduced by 18 months reduction in consideration of mitigating factors. The final sentence imposed was 2 ½ years’ imprisonment, fully suspended on conditions.

16. The Crown submits that it is appropriate to impose a custodial sentence.
    1. Starting Point- 2 ½ years for Count 1 and 2 months imprisonment for Count 2 to be reduced by 12 months in mitigation and fully suspended for 2 years on conditions.

Defendant’s submissions

17. The Defendant submitted a letter to the court seeking a lenient sentence. I have considered her remorse and reconciliation with the complainant, her husband.

Pre-sentencing report

18. It was reported that the defendant is 28 years of age, is married (as mentioned) to the complainant with 3 children all under the age of three, the youngest is 4 months old. It was noted that the second child is displaying early signs of autism.
19. The defendant herself is healthy and is employed at the Ministry of Lands, Survey and National Planning. The Acting CEO of the Ministry spoke well of her.
20. The defendant was brought up in a stable home and resides with her parents in Fanga ‘o Pilolevu. Her father observed alcohol to be at the root of the young couple’s problems. After the incident, he has observed, forgiveness, a renewal of the marriage, quitting of alcohol consumption and an enhanced relationship between the two.
21. They both attend the Catholic Church now.
22. It appears that alcohol combined with the defendant’s obsession with her husband led to the offending. It is alarming to read the defendant’s admission that she was with child as well as being accompanied by their 2 young children when she consumed alcohol to the point her husband saw fit to send them home. She did not want to let her husband return to the party without her, in fear of him being in any female company hence her conduct that night.
23. The report acknowledged the defendant’s remorse, the reconciliation with the complainant and recommended a fully suspended sentence on conditions which should include no consumption of alcohol for the duration of her suspended sentence.
    

Starting Point

24. For Count 1, causing bodily injury while driving under the influence (count 1), the maximum penalty is a term of imprisonment not exceeding 15 years. For Count 2, reckless driving, the maximum penalty is a fine not exceeding $800 or to imprisonment for a term not exceeding 4 months or to both such fine and imprisonment, and the Court may order that the convicted person be disqualified from holding or obtaining a driver’s licence for a period not exceeding 3 years.
25. Having regard to the seriousness of the offending, the seriousness of the complainant’s injuries, the maximum penalty, the comparable sentences, the sentencing principles of punishments and deterrence, I set a starting point of 2 ½ years’ imprisonment for count 1 and 2 months imprisonment for count 2 to be served concurrent to count 1.

Mitigation

26. In mitigation, I deduct a period of 12 months from the starting point, resulting in a final sentence of 1 ½ years’ imprisonment.

Suspension

27. For her youth, remorse, the joint effort with her spouse to mend their marriage and family, the circumstances around the second child and all 3 children being in their formative years, there being no report of any lasting injuries suffered by the complainant and the likelihood that any suspended period will be utilised by the defendant for rehabilitation, I suspend the defendant’s sentence in full.

Result

28. ‘Olivieta Leiorina Vea is convicted of:

a) Count 1 - and sentenced to 1 ½ years’ imprisonment; and

b) Count 2 - and sentenced to 2 months imprisonment.

29. Count 2 shall be served concurrent to count 1.

30. The sentence imposed is suspended in full for a period of 2 years, on condition that during the said suspension period, the defendant is to:
    1. not commit any offence punishable by imprisonment;

b) be placed on probation;

100. undertake a course on life skills directed by the Salvation Army; and

4. be disqualified from driving during the period of suspension.

31. Failure to comply with the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to complete the balance of her prison term.
    

P. Tupou KC

Nuku'alofa: 17 April, 2025 JUDGE