By Linny Folau
Fatafehi Tomasi’s appeal against his sentence was dismissed by the Appeal Court. He is currently serving 10 months in prison for driving a motor vehicle causing bodily harm to his passenger, while under the influence of alcohol.
Earlier this year, the 22-year-old pleaded guilty to and was convicted of driving the motor vehicle causing bodily injury of a person, while having an alcohol level exceeding 350 micrograms per litre.
He was sentenced to two and a half years imprisonment with the final 20 months suspended on conditions by Justice Tupou at the Supreme Court, in June. This means that he is serving 10 months in prison. The maximum penalty for this offence is 15 years imprisonment.
Appeal judges Randerson, White and Dalton in a judgment on 20 November in Nuku'alofa stated that the appeal was against the sentence. This was on the grounds that it was excessive and inconsistent with like incidents and court precedents in Tonga, and ;that the appellant was completely remorseful and made full reparation to the victim, contrary to a finding of the primary judge.
He also did not seek an oral hearing and the appeal was dealt with on papers.
Offending
The court heard that on the evening of Friday, 23 August 2024 the appellant was drinking with six others at Ciora Bar on Taufa'ahau Road.
At about 1:00am on Saturday, 24 August, they all piled into the appellant's car. The victim, Ms Vaka sat on the front passenger's lap when the appellant made a sudden U-turn on Taufa'ahau Road clipping the rear of a vehicle in front.
He overtook that vehicle turned right into Wellington Road and sped easterly to the intersection with Fatafehi Road. Ms Vaka asked him to slow down. At the intersection he collided with the left side of a vehicle approaching on his right, damaging its front and back left doors. He and three passengers fled the scene. While, Ms Vaka was seriously injured and taken to hospital with a fractured right femur. The appellant was arrested shortly after.
The prosecutor’s summary of facts a breath test was conducted at 4:00am and it showed that his breath contained 1040 microgram of alcohol per litre of breath, which was more than four times over the legal limit.
The Victim Impact Report, said Ms Vaka was hospitalised for two months when she ultimately agreed to undergo surgery to have a rod inserted into her leg. She was bedridden for a further two months before she attempted to walk again. Her walking has not returned to normal, and she could not perform hard physical labour, but was restricted to simple menial tasks,.
The Court stated that appellant was 21 at the time of the accident. He is married with children. His wife and children live in Australia and he returned to Tonga in 2024, apparently in order to apply for an Australian partner visa or to collect documents for that purpose.
The Victim Impact Report recorded that Ms Vaka stated that whilst she was in hospital, she was visited by the appellant and his mother, and it was his mother who apologised to her and provided her with $200.
The primary judge identified seven aggravating factors which was the excessive consumption of alcohol driving at excessive speed disregard of warning from Ms Vaka to slow down; he drove dangerously loaded vehicle [with Ms Vaka sitting on another's lap without the required safety restraint], causing serious injury to Ms Vaka; and failing to stop after he hit the first car and fleeing, after he hit Mr. Tu'a's car and in the knowledge Ms Vaka was injured.
The Appeal Court found that the primary judge's starting point of four and a half years of imprisonment was not inconsistent with previous authority.
"It fell within the judge's sentencing discretion and was not manifestly excessive. The primary judge correctly held that the appellant had an extremely high level of culpability."
In addition, the reduction of two years for mitigating factors and suspension of two-thirds of the resulting sentence was generous to the appellant, stated the Court.
The appellant also contended that he had made full reparation to Ms Vaka because he had joined his parents in visiting her in hospital to apologise and to make her a gift of $200.
“The primary judge did not expressly address the question whether the appellant had shown remorse. Her Honour recorded that Ms Vaka had stated that it was the appellant's mother who visited her in hospital and given her $200. He accompanied his mother to the hospital.
“Even if the appellant were remorseful and he apologised to Ms Vaka and personally made the gift of $200, that would not mean that he made full reparation,” stated the Appeal judges.
“Ms Vaka was hospitalised for about two months during which time her family incurred expenses to provide her with food and care. After her discharge from hospital she was bedridden for two months, after she attempted to walk again. She continued to suffer disability. $200 was not full reparation. The ground of appeal that the appellant made full reparation should be rejected.”
The Appeal Court also determined that the primary judge did not expressly refer to these matters as factors in mitigation.
“We do not conclude that her Honour failed to consider them. Even if she failed to do so, that would not warrant a further reduction in sentence. As indicated above, the primary judge's discount of two years in mitigation was generous having regard to all mitigating factors. For these reasons the appeal was dismissed,” ruled the Appeal Court.
