By Linny Folau

Latanoa Fonua was sentenced to three years imprisonment fully suspended on conditions for causing bodily injury to an 11-year-old boy at a bus station, while driving under the influence of alcohol.

Lord Chief Justice Bishop sentenced him on 21 October at the Supreme Court in Nuku’alofa, after he pleaded guilty to the charge. The Crown submitted a recommendation for sentencing of three years imprisonment with the final 24 months suspended for two years, on conditions.

The court heard that on Friday, 6 March 2024 between 5 to 6 pm, after having alcohol with his friends at a school function, the defendant travelled from Kolofo’ou to Nukunuku with a girlfriend having dropped a friend at her home.

The defendant was then asked to return back to Liahona to pick up someone from there. He turned the vehicle around to drive back, when the defendant turned into a driveway of a house on the right side of the road. The driveway was next to a small bus stop station as the defendant reversed out of the driveway, a vehicle was coming up from behind and the defendant accelerated rapidly to the front to turn the vehicle back in the direction to Nuku'alofa, he lost control and ended up driving straight and crashed into the small bus station sadly among those at the bus station was a 11 year-old boy.

The boy was injured and rushed to hospital where he was treated. The defendant continued to drive into town after the accident, but was alerted by his passenger to turn back because someone was hurt. He returned to the bus stop stand but the victim had already been taken to hospital. The defendant and his passenger went directly there to check on the victim. He was seen by the police and escorted to the police station.

An alcohol test was conducted with shared a measurement of 734 milligrams of alcohol per litre of breath.

The LCJ stated that the surgeon who treated the victim stated that he was at risk of debilitating bone infection, which can spread throughout the whole tibia. As a result he is at risk of pathological fracture.

If the infection was not controlled he noted that this type of infection was not easy to treat and can be further complicated by microbial resistance and could last for months and flare up over the duration of his life. The surgeon also ;reported this bone infection will impact his ability to participate in contact sports and may require multiple surgeries in the future to deal with the infection and the surgeon said that he was able to mobilise on his left leg without assistance, but he had an obvious but painless limp.

The accused's pre-sentence report detailed his personal history, lack of previous conviction, their recommendation on sentencing.

The Probation Officer recommended a fully suspended sentence on the condition that the accused complete community work, not commit any further offences, complete community service and to be banned from holding a driver's license amongst other things.

The statute prescribed a term of imprisonment not exceeding 15 years in addition, a disqualification not exceeding three years.

Defence submitted that a fully suspended sentence of two and a half years was warranted to account for the his guilty plea and other mitigating features.

“I have been provided with helpful submissions by the Crown and the defence and my attention has been drawn to comparable authorities, which I have found a great assistance but I wish to emphasise that they are indeed helpful but each case depends on its own facts which are infinitely variable.”

He stated it was submitted that this was a case that fell into the category of a momentary dangerous error in judgement over a short period of bad driving on the part of the defendant and that the starting point of three years uplifted by one year for the aggravating factors, therefore 4 years imprisonment should be the starting point.

It was also submitted that the defendant's early plea and previous good record should warrant one year discount and a further six months reduction for the remaining mitigating factors resulting in a final sentence of two and a half years sentence.

The defence submitted, the sentence should be fully suspended because the defendant was young, remorseful, had a good record and good prospects of rehabilitation and his family were committed to help the victim with his recovery. Added to that, the passenger in the accident stated in her affidavit for the defendant that he did not drive at an excessive speed or recklessly.

“Here the defendant willingly and fully cooperated with the authorities and the defendant is a perspective nurse and has good career prospects. The victim is very young, and his outcome is not clear, and his family are committed to assisting him in any way they can to ensure his full recovery,” the LCJ stated.

The Crown on the other hand, identified five aggravating factors, which were the seriousness of the offence, the youthful age of the child, pain and suffering of the victim, the alcohol was three times the legal limit and he drove the vehicle with a passenger (about twice the prescribed level). The Crown also identified mitigating factors of an early guilty plea, an apology, and remorse, compensation to the victim in the provision of $1000 of food whilet in hospital and later, the defendant was first time offender, 21 years of age and has a good future.

“The Crown further drew my attention to the fact that the victim's and his grandparents’ acceptance of the defendant's apology and they wish him to continue his career in nursing. They are grateful for the financial support which the Defendant's family have already given to them.

“The Crown's view as set out of paragraph 13 is that a fully suspended sentence would not adequately reflect the seriousness of this offence and the likely long lasting effect of the leg injury will have on the victim,” he added.

Another chance

The LCJ stated that this was a difficult case.

"I do not doubt that what happened has to be marked by a sentence of imprisonment. The question before me is should that sentence be suspended in whole or in part? I have taken into account the aggravating features set up by the Crown being, the youth of the victim, the pain and suffering, the amount of alcohol consumed and that the defendant had a passenger in his vehicle.”

“There are of course there are however strong mitigating factors. Not only the early guilty plea, the apology and remorse, the compensation the first-time offender, the youth of the defendant and his potential future.

“What impresses me and what I have found particularly persuasive is the fact of the accident itself. This was in some respects a freak occurrence. There was no excessive speed. There was no disregard of warnings. There was no prolonged driving dangerously.

“What happened was that the defendant intoxicated as he was unwisely drove his vehicle, in reverse out of a driveway onto a road where a vehicle is coming up from behind he accelerated rapidly in an attempt to turn the vehicle back into the direction of Nuku'a‘ofa lost control driving into the small bus station where, sadly, the victim was and where he suffered the injuries.

“The gravamen of culpability here is the consumption of alcohol in the first place and from it the other consequences flowed. So I have concluded that there a sentence of imprisonment is merited but the guidelines of the Court of Appeal in Mounga namely, the use of the defendant the likelihood of his rehabilitating himself and then despite the gravity of the offense it's lack of premeditation and the attempts which the defendant took afterwards and going to the hospital seeking out the victim and visiting him during his recovery. 

“I bear also in mind the attempts made by the defendant’s family to assist the victim's family by the payment of sums as such some as they can afford taking all these matters together.”

The LCJ then ruled that this was case where justice enabled him to suspend the sentence upon the usual conditions and he decided to suspend the defendant's sentence of three years imprisonment for three years, on conditions.

This includes not committing any further offence punishable by imprisonment, completing 40 hours of community service as directed by the Probation Office within the next 12 months, taking up a course on life skills and alcohol awareness and $2000 pa'anga to be paid as compensation to the complainant's family within 12 months.

The defendant was also disqualified from holding a driver's licence for two years.