R v Tonga HC Auckland CRI 2010-092-20311

[2011] NZHC 547

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-092-20311

CRI 2011-092-009204

CRI 2011-092-002039

THE QUEEN

v

SETEFANO TONGA

Hearing:         10 June 2011

Counsel:         R S Reed and H Yiu for Crown

I F West for Mr Tonga on manslaughter charge
J Northwood for Mr Tonga on summary matters

Judgment:      10 June 2011

SENTENCE OF WINKELMANN J

Crown Solicitor, Auckland

R V TONGA HC AK CRI 2010-092-20311 10 June 2011

[1]      Mr Tonga, you appear for sentence having pleaded guilty to a number of offences arising out of three separate occasions of offending.   The most serious offences relate to events occurring on 5 December 2010.  You have pleaded guilty to one count of manslaughter for which the maximum sentence is life imprisonment, two counts of driving with excess blood alcohol causing injury for which the maximum sentence is five years imprisonment, and one count of conversion of a motor vehicle for which the maximum sentence is seven years imprisonment.

[2]      The facts in relation to that offending are that late on 5 December 2010 you were stopped by police.  You had three passengers in the vehicle you were driving. You were found to be intoxicated (later found to be over three times the legal youth limit), an unlicensed driver and driving a stolen car.   You escaped the police by driving dangerously and at speed.  You drove erratically, at times in heavy traffic. The police called the chase off as it was too dangerous and they laid down road spikes for you.  You drove over the road spikes, continued driving, losing control of the vehicle and crashing.  You and your passengers were thrown from the car.  One passenger, Ms Georgina Stone-Tehaara, was trapped under the vehicle and died as a result of injuries sustained in the crash.  Your two other passengers were seriously injured.

[3]      You are also to be sentenced on one count of male assaults female for which the maximum sentence is two years imprisonment, two counts of failing to answer District Court bail for which the maximum sentence is one year imprisonment, and one count of breach of community work for which the maximum sentence is three months imprisonment.

[4]      The male assaults female offending related to events on 4 June 2010.  During an argument at a house you shared with your partner you punched her to her body, grabbed her and prevented her from leaving the room.  You threw her around the room when she tried to escape, and you punched her mouth causing it to split and her to bleed.

[5]      The third set of offences for which you are to be sentenced relate to events in October 2010.  You have pleaded guilty to one count of unlawful interference with a vehicle for which the maximum sentence is two years imprisonment, and one count of theft with a value of less than $500.  That relates to your stealing a GPS device from the vehicle that you smashed the window of.  That offending occurred whilst you were on bail in relation to the assault on your partner.

[6]      In sentencing you I have to take into account information provided to me concerning  the  effect  of  your  offending  on  the  victims.     In  relation  to  the manslaughter and driving with excess blood alcohol causing injury counts, I have heard  today  from  the  family  of  Georgina  Stone-Tehaara.    Georgina’s  mother, Ms Tehaara, has filed a victim impact statement which she read in Court.   She describes Georgina as a vibrant, caring, sensitive and talented young woman.  She told us about the terrible impact on Georgina’s family of the loss of Georgina and the difficulty that they are all having, but particularly Ms Tehaara in coming to terms with the fact that Georgina is no longer in their lives.

[7]      I have also heard from Mr Stone, Georgina’s father.  He spoke to the Court about the effect of the loss of Georgina and about Georgina.  He made clear to you the terrible grief that he feels in respect of the loss of his daughter, and the loss of the ability to participate in and share her life in future.

[8]      I also had read out for me the victim impact statements of the other two occupants of the vehicle, Ms Menary-Colley and Ms Ngaheu.  Both of these young women were badly injured in the crash.   They sustained injuries which are life changing.   The crash fractured Ms Ngaheu’s spine and required that she have a titanium rod and bolts inserted in her back.  She was in hospital for four weeks and took many months to recuperate.  She is a young mother who finds it difficult now to care for her toddler.  She continues to suffer pain and will do so for the rest of her life.  She was emotionally traumatised by both the accident and the loss of her friend, Georgina.

[9]      Ms Menary-Colley suffered a tear in her main aorta valve in the accident which  has  left  her  with  a  permanent  disability  which  means  that  she  cannot

undertake any activity that will cause her heart to beat faster.  She also suffered a fractured right pelvic bone and right hip, and serious internal injuries, the full impact of which on her life are as yet unknown.  Her right shoulder was dislocated and she has suffered significant damage to her right wrist which causes her ongoing pain. She has had to undergo rehabilitation after the crash so that she could walk properly. As a consequence of all of the injuries and their ongoing effect on her, she has had to give up her job.  The trauma of these offences had an effect on her relationships and upon her confidence and she continues to grieve for her friend Georgina.  She says that her life is to some extent dominated by thoughts of the crash.

[10]     I have also received a victim impact statement from Mr McLean, who was the owner of the vehicle that you stole and destroyed.  He details the financial cost to him of your offending, but he also says that the knowledge that someone died in the car that was stolen from him is very sad for him.

[11]     Finally, I have also received a victim impact statement from your former partner who describes the physical injuries that you inflicted upon her when you assaulted her.  She says that she suffered a split lower lip, a bruised left eye and pain in her arm and shoulder.  She said that she was very scared and concerned for her safety when you assaulted her, and that the violence against her had been going on for the previous two years.

[12]     Mr Tonga, I have to sentence you in respect of three separate groups of offending.  The approach I intend to take is to impose concurrent sentences within each group of offences, selecting a lead offence for each group.  That lead offence will be the most serious offence.   Those lead offences will be cumulative.   That means the starting point of each lead offence will be added together.  Once that total starting point is reached I then have to consider the effect of the totality of the sentence.   That means determining whether the accumulated starting points would result in a total period of imprisonment which is wholly out of proportion to the gravity of the overall offending. That is the approach I intend to take.

[13]     The Crown submits that on the manslaughter charge I should use a starting point of seven to seven and a half years imprisonment when I have regard to the

many  aggravating  present  in  the  offending  and  comparable  cases.    The  Crown submits that cumulative sentences are appropriate for the other two groups of offences.   It identifies no aggravating factors personal to you, but in terms of mitigating factors it accepts that a discount of six to eight months is appropriate for your youth.   For the early guilty plea the Crown submits a range of 20 to 25% discount is appropriate, noting the strength of the prosecution case against you in respect of the manslaughter charge.  The Crown also seeks a disqualification period of five to seven years.

[14]     Although indicating that a reparation order of $8,400 would be appropriate in respect of the stolen vehicle, Crown counsel responsibly acknowledges that there is simply no point to imposing such an order upon you since you have no means of reparation, and indeed already there are outstanding fines and reparation orders and also you are likely to serve a lengthy period of imprisonment.

[15]     Today we have the unusual situation that you are represented by two counsel; Ms West represents you in respect of the manslaughter offending and in respect of the remaining summary charges Ms Northwood is here to speak for you.  That has occurred because you have expressed a wish to deal with most of the offences that you have had outstanding against you on this one occasion.

[16]     In respect of the motor manslaughter charges Ms West accepts the summary of facts although disputes two points.  Firstly, the summary of facts stated that you told your passengers to take off their seatbelts and to close the windows so the car would go faster.   You also say that your passengers encouraged you to evade the police, which is not accepted by the Crown.  I do not consider either of these points material to the sentence that I intend to impose upon you, so I do not propose to resolve those factual issues.

[17]     Ms West submits that a starting point of five to six years imprisonment is appropriate on the manslaughter charge on the basis that this is not offending of the most serious kind.  She submits that a discount should be made to reflect your guilty plea and your youth at the time of the offending.

[18]     In  respect  of  the  assault  and  motor  vehicle  charges,  Ms  Northwood emphasises your youth and your early guilty pleas.   Both counsel accept that cumulative sentences  are appropriate but emphasise the need  to  ensure that the sentence imposed is proportionate to the totality of your offending.

[19]     In sentencing you I first have to consider the culpability of your offending and any aggravating or mitigating factors relevant to your offending.  In relation to the first group of offences, which I have characterised as the manslaughter offending, the lead offence is plainly the manslaughter offence. That is the most serious.

[20]     I am unable to accept your counsel’s submission that this is not the most serious kind of offending.   I consider that it is amongst the most serious type of offending of its kind.  I propose to adopt a starting point of seven years, six months imprisonment in line with the authorities referred to me and the aggravating factors which have been identified by the Crown.[1]   These are the consumption of alcohol, a persistent and deliberate course of, frankly, appalling driving, excessive speed, estimated to be up to 180 kph at one point by one of your victims, the extent of the recklessness with driving in traffic at times, and the extent of the harm caused by the

offending. Although it is necessarily implicit in the charge you pleaded guilty to that your driving caused death, I do consider it is relevant that your offending also has permanently damaged the lives of the surviving two victims who were occupants of your vehicle.  It is a further aggravating factor that at the time you were driving you were an unlicensed driver and only approximately six weeks earlier had been warned not to drive because you were unlicensed.

[1] R v McSwain HC Auckland CRI-2004-292-91, 6 December 2004; R v Paikea HC Tauranga CRI-2009-019-5625, 29 September 2009; R v Forbes HC Invercargill CRI-2010-025-2061, 30 August 2010.

[21]     A fact present in this case which is not present in many of the motor vehicle manslaughter cases is that you were driving a stolen vehicle at the time, and were evading apprehension by the police when you crashed.  This was not an isolated act of idiocy by a young man as we so often see in our courts in relation to motor

vehicle manslaughter.

[22]     On  the  charge  of  conversion  of  a  vehicle  which  is  connected  to  this offending, I adopt a starting point of 12 months imprisonment.  Although the act of conversion did not involve threats of burglary, it did result in the vehicle being wrecked.

[23]     On the two charges of driving with excess blood alcohol causing injury I adopt a starting point of three years, four months imprisonment on the basis that the harm caused by this offending was very serious.

[24]     Turning to the second group of offences which are the assault charges.  The lead offence is male assaults female.  I have been most assisted by a consideration of the cases of Yeo v Police[2], Stacey v Police[3] and Poata v Police[4].

[2] Yeo v Police HC Auckland CRI-2006-404-283, 14 September 2006, Asher J.

[3] Stacey v Police HC Tauranga CRI-2009-470-2426, 30 June 2009, Heath J.

[4] Poata v Police HC Rotorua CRI-2010-470-23, 5 July 2010, Joseph Williams J.

[25]     I consider that your offending is most comparable to that in Yeo, although more serious.  I propose to adopt a starting point of nine months imprisonment for the male assaults female charge.  In relation to the two counts of failing to answer bail and one count of breach of community work, I will convict and discharge you.

[26]     Finally, I come to the third group of offending, which I refer to as the motor vehicle charges.   The lead offence in the motor vehicle charges is unlawful interference with a motor vehicle.  I have had regard to the cases referred to me in relation to this.[5]   I adopt a starting point in relation to the unlawful interference with a vehicle of six months imprisonment.  On the other charge of theft of a GPS device, I convict and discharge you.

[5] Gibson v  Police HC Rotorua CRI-2007-470-20, 18 May 2007, Lang J; Hall v  Police HC Christchurch CRI-2003-409-97, 18 December 2003, Panckhurst J.

[27]     I then consider the overall starting points calculated by adding together the starting point of each cumulative lead offence.  In this case the provisional overall starting point I arrive at when I do that mathematical exercise is eight years, nine

months imprisonment.  That is arrived at by adding together seven years, six months

for manslaughter, nine months for male assaults female and six months for the unlawful interference with a motor vehicle.

[28]     I then must consider whether the starting point should be adjusted downward to reflect the totality principle.  I do consider that an adjustment downward needs to be done.   I do this by adjusting the two more minor charges so that their starting point is lesser, to arrive at a final starting point of eight years, two months imprisonment.

[29]     I then must take into account factors personal to you, which in your case really are only going to be taken into account by way of mitigation.

[30]     I have a pre-sentence report in respect of you.  You are currently 18 years of age but were 17 years at the time of all of the offending.  You describe yourself as having come from a secure home situation.  You left school at 16 years of age and really have found no long term employment.  You have a substance abuse problem and you drink most days.  You do not have any income and you have outstanding fines.

[31]     The key rehabilitative need identified for you is to address your problematic use of alcohol.   You are assessed as being motivated to attend interventions to address your offending and your alcohol abuse problems.  You are assessed as being at medium risk of reoffending, and this risk is particularly present if you continue to abuse alcohol and associate with your anti-social peers.

[32]     I note that you are supported in court today by your mother and your two sisters.  I have also received and read the letter that you have offered to the family of Georgina, and also the letter that you have written to the court.   In those you do express remorse.  You also expressed remorse to the pre-sentence report writer.   I accept that that remorse is genuine.  You are obviously an immature man who has difficulty in expressing himself and these really are huge events that you somehow must try to deal with.  You are going to have to come to terms with the fact that through the offending that I have described you have damaged so very many lives.  It

really does make terrible reading when one describes the impact on your victims of this series of offences.

[33]     The pre-sentence report also reveals that you have previously been sentenced on a total of 13 convictions, although all but two were in Youth Court.  All of your convictions are in some way relevant to the offences you are being sentenced on. They include six counts of burglary, robbery by assault and unlawful interference with a motor vehicle.  I also note that the manslaughter and motor vehicle offences were committed whilst you were on bail for assaulting your partner.  Those matters could justify an uplift in your sentence, but the Crown does not seek that.   I have reflected  carefully  about  that  and  I  consider  that  the  Crown  is  correct  in  that approach because some of the factors are effectively taken into account by way of aggravation in relation to the manslaughter charge.   Also, you are young and the sentence that you are going to have imposed upon you will be a lengthy sentence of imprisonment.  I do not consider that it is necessary to uplift the sentence for those matters.

[34]     In terms of mitigating factors, there is your youth.  You were 17, two days short of your 18th  birthday.  If you had been two days older Mr Tonga, you would have qualified under the three strikes legislation which would have meant that I would  have  been  giving  you  a  warning  about  the  potential  effects  of  further offending again upon you.  In a sense you were lucky that you were those two days short of that date because if that were not the case the effect for you of the sentence would be much more considerable.

[35]     I propose to give a discount of 10 months on account of your youth, which takes the sentence down to seven years, four months.  Your counsel does not seek any discount on account of remorse in addition to the discount for guilty plea and I consider that is appropriate.  You did plead guilty to all of the offending at the first reasonable opportunity, but as the Crown says, the Crown case on the manslaughter was really irresistible.  I therefore allow a 20% discount from the sentence.  If I take the 10 months for youth from that sentence I arrive at seven years, four months.  If I take a further 20% it gives a final effective sentence of five years, ten months.  So that will be the sentence that is effectively imposed upon you.   I do not intend to

impose orders for reparation as you have no means.  I also note the Crown does not seek a minimum period of imprisonment in light of your youth and the length of the sentence.  I also accept that it is not necessary to impose one upon you to achieve the purposes identified in the Sentencing Act.

[36]     Mr Tonga, please stand.  You are sentenced as follows.  On the one count of manslaughter you are sentenced to five years, four months imprisonment.   On the one count of male assaults female you are sentenced to four months imprisonment. On the one count of unlawful interference with a motor vehicle you are sentenced to two months imprisonment. The sentences for these three offences are cumulative.

[37]     The following sentences I impose are concurrent on the above sentence, that is they will not be added to that sentence.  On the count of conversion of a motor vehicle I sentence you to nine months imprisonment.  On the two counts of driving with excess blood alcohol causing injury I sentence you to two years, four months imprisonment.  On the two counts of failing to answer bail you are convicted and discharged.  On the one count of breach of community work I convict and discharge you.  On the one count of theft I convict and discharge you.

[38]     You are also disqualified from driving for seven years from today’s date.

Winkelmann J