By Linny Folau
Manly Palu (25), a drunk driver who injured a family, had his three years prison sentence reduced by one year, in a successful appeal against the sentence recently. The Appeal Court reduced his sentence to two years imprisonment with the last 18 months suspended on conditions.
The offences were committed on 14 March this year, at around 9:40pm in a head-on collision between the car the appellant was driving and one which Mr. Lance Mafi was driving in the opposite direction, as he and his family made their way south along the Taufa'ahau Road in Tofoa.
Justices Randerson, Harrison and Dalton in a judgment on 20 November at the conclusion of the Court of Appeal in Nuku’alofa stated that this was an appeal against sentence. He had pleaded guilty and was sentened to three years imprisonment, with the last 18 months suspended for two years, for counts of causing bodily injury, whilst driving under the influence of alcohol.
The ground of his appeal was that the sentence was manifestly excessive.
The Appeal judges stated that in part of his submissions, the appellant's counsel pointed to a remark of the sentencing judge, which showed that he was proceeding on a factual basis not made out by the evidence, and made submissions which, in effect, said that the sentencing judge erred in applying principles of totality.
The appellant had a blood/alcohol concentration of 0.11, when he drove his car on the wrong side of the road at speed. It collided with a car carrying a family, which was driving on its correct side of the road. The family were all injured, thus resulting in the three counts charged against him. The husband had blunt abdominal trauma, a very deep laceration to his thigh, about 12 cm long, and multiple abrasions to his forehead, legs and left wrist.
His wife suffered from a fracture to her left arm, four lacerations to her left shin, all of which required suturing, and abrasions to her forehead, right wrist and both feet. Their two year old child suffered an injury to her forehead, a laceration to the back of her right ear, abrasions to her right knee, and a laceration to her right foot.
The child had to re-learn to walk after recovering from the injuries. Both the husband and wife suffered relatively minor, but ongoing, difficulties as a result of their injuries. The family car was severely damaged in the accident, and at the time of sentencing still could not be used, the court heard.
The judges stated that the appellant was 24 years old at the time of the accident. On the day in question he began drinking at about 3.30pm in the afternoon, and consumed about 10 bottles of beer at one bar, before proceeding to another bar (driving his car to get from one to the other). At the second bar he consumed another five bottles of beer. He told police that he could not give a version of events as he was too drunk to know what happened.
There was no doubt that the appellant was remorseful for his behaviour. He pleaded guilty three months after the accident. He and his mother made three visits to the family while they were in hospital, and apologised for his behaviour.
After the family was discharged from hospital, they visited three more times. At each visit they gave the family money, in total $4,000. The family has accepted the apology made by the appellant, and a submission was made below that they sought "the Court's indulgence and mercy" for the appellant.
The court heard that the appellant had no previous convictions and had lived a productive and useful life. He has a degree in engineering from the Fiji National University. At the time of sentence he had been employed by the Ministry of Infrastructure, and then with a large engineering firm as a civil engineer in Tonga. He was contemplating further study.
His pre-sentence report also recorded that the he grew up in a good and decent family and had always behaved as a responsible member of that family. He also told the pre-sentence report writer that he fell asleep before the accident and the writer considered that the appellant had "a bright future ahead of him with his profession despite being convicted for his mistake”.
Appeal allowed
The Appeal judges stated that appellant contended that the starting point for count 1 was too high, when regard was had to other comparable cases. In particular, it was said that the starting point was not supported by the judgment in the case of Ikahihifo (above). Ikahihifo dealt with sentences imposed for two offences, dangerous driving causing death and dangerous driving causing grievous bodily harm. It was a case where this Court re-sentenced the appellant.
“We have difficulty with the judge's increasing the starting point sentence from two and one-half years to three years to reflect the high level of intoxication and high speed of the appellant's driving.
“It is true that the appellant was highly intoxicated, and drove too fast, on the wrong side of the road. However, those sort of factors were also present in Ikahihifo, and when the reasons of the Court of Appeal in that decision are considered, it is clear that in setting the starting point (relevantly here) of four years imprisonment for dangerous driving causing grievous bodily harm, those considerations were taken into account.”
After considering a comparable case, the judges stated, “we think that six months increase, together with the six month cumulation on both of counts 2 and 3, did in combination result in a sentence, which was manifestly excessive and out of line with the decided cases,”
The judges decided that the Court of Appeal should give leave to appeal against sentence, allow the appeal and re-sentence the appellant.
“In re-sentencing the appellant, we would adopt the sentencing judge's starting point of two and one-half years on count.
“We would add a three month cumulation on both counts 2 and 3 and then, like the sentencing judge below, reduce that three year sentence by 12 months to reflect the appellant's guilty plea, remorse, reparations and good prospects for the future. Thus we would impose a sentence of two years imprisonment,” the Appeal judges ruled.
On reflection of the appellant's good character, remorse and good prospects for living a productive and law-abiding life, they ordered that the last 18 months of the sentence be suspended for 18 months on conditions that he must not leave Tonga, during the period of his suspended sentence; must not commit any further offence punishable by imprisonment during the suspended sentence; and is disqualified from driving in the duration of his suspended sentence.
The Appeal judges then allowed the appeal.
The original sentence was set aside and the appellant was sentenced to two years imprisonment with the last 18 months suspended on the conditions, as stated.
