Tomasi v R [2025] TOCA 26; AC 11 of 2024 (20 November 2025)

IN THE COURT OF APPEAL OF TONGA AC 11 of 2024
CRIMINAL JURISDICTION [CR 52 of 2025]
NUKU’ALOFA REGISTRY
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BETWEEN FATAFEHI TOMASI

Appellant

AND REX

Respondent

Hearing: 10 November 2025

Court: Randerson, White and Dalton JJ

Counsel: Sunia Fili for the Appellant
Kapeni Tamo’ua for the Respondent

Judgment: 20 November 2025

JUDGMENT OF THE COURT
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1. This is an appeal against sentence. The appellant pleaded guilty to and was convicted of an offence against s 34(1) of the Traffic Act of driving a motor vehicle and causing bodily injury of a person while having an alcohol level as ascertained by a subsequent breath test exceeding 350 micrograms per litre. The maximum penalty for the offence is 15 years imprisonment.
2. The appellant was sentenced to two and a half years imprisonment with the final 20 months of the sentence suspended on conditions (R v Fatafehi Tomasi CR 52/25, Tupou J, 12/6/25).
3. The appellant appeals against the sentence on the grounds that:
   • (a) the sentence was excessive and inconsistent with like incidents and court precedents in Tonga; and
   • (b) he was completely remorseful and made full reparation to the victim, contrary to a finding of the primary judge.

The appellant did not seek an oral hearing. The appeal was dealt with on the papers.

4. For the reasons which follow the appeal should be dismissed.

The Offending Conduct

5. On the evening of Friday, 23 August 2024 the appellant was drinking with six others at the Ciora Bar in Taufa’ahau Road, Nuku’alofa. At about 1:00 am on Saturday, 24 August they all piled into the appellant’s car. The victim, Ms Vaka sat on the front passenger’s lap. 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. Ms Vaka was seriously injured. She was taken to hospital with a fractured right femur. The appellant was arrested shortly thereafter. According to the prosecutor’s summary of facts a breath test was conducted at 4:00 am. It showed that his breath contained 1040 micrograms of alcohol per litre of breath. This is more than four times over the legal limit (Traffic Act s 33(1)).
6. The appellant co-operated with the police investigation.
7. According to the Crown’s submissions on Ms Vaka’s Victim Impact Report, she 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 cannot perform hard physical labour, but is restricted to simple menial tasks.
8. The appellant was 21 at the time of the accident. He married in June 2022. He and his wife had three children, and she was pregnant with their fourth child at the time of the hearing. His wife and children live in Australia. The appellant had returned to Tonga in 2024, apparently in order to apply for an Australian partner visa or to collect documents for that purpose (Pre-sentence report).
9. 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.
10. The Crown referred the primary judge to Ikahihifo v R (AC 14/2021; 28 September 2021, [2012] TOCA 21); R v Tepi Angilau [2024] TOSC 7; CR 4/2024, 22 March 2024 (Tupou ALCJ); and Pulu v R (AC 22/2024, 11/11/24; [2024] TOCA 21).
11. Ikahihifo v R was the first decision of this Court that considered the approach to sentencing for reckless driving causing death under s 27(4), for which the maximum penalty is 15 years imprisonment. That is the same maximum penalty as fixed for an offence under s 34(1). There the offender was drunk, drove at an excessive speed, and collided head on with an approaching vehicle when trying to overtake, killing the other driver and severely injuring his front seat passenger. After noting the range of aggravating and mitigating factors identified in Gacitua v R [2013] NZCA 234, the starting points identified by the New Zealand Court of Appeal depending on the degree of culpability, and the higher applicable maximum penalty in Tonga, this Court held that the guidelines in Gacitua were instructive in Tonga. This was subject to two caveats. First, the starting points recommended in Gacitua needed to be modified to reflect the higher prescribed maximum penalties in Tonga. Secondly, the guidelines were not to be treated as inflexible or strict rules (Ikahihifo at [33]-[35]).
12. The aggravating and mitigating factors set out in Gacitua are extracted in Ikahihifo and need not be repeated here.
13. Having regard to the particular facts in Ikahihifo this Court set the starting point for dangerous driving causing grievous bodily harm at four years imprisonment (at [39]).
14. In R v Tepi Angilau concerned an offence under s 34(1) of the Traffic Act. The offender was drunk. She and her companions were refused admission to a bar. She drove at an excessive speed and ignored warnings from her passengers to slow down. She overtook four vehicles and resisted the front passenger’s attempts to stop the car. Tupou ALCJ set a starting point of five years imprisonment, citing the need for specific and general deterrence.
15. In Pulu the offender had a blood/alcohol concentration of 0.11. He drove on the wrong side of the road and collided with a car carrying a family and coming the other way. He caused serious injury to a child and relatively minor but ongoing difficulties to the child’s parents.
16. He was convicted of three offences of causing bodily injury whilst driving under the influence of alcohol contrary to s 34(1) of the Traffic Act. For count 1 the primary judge adopted a starting point of two and a half years, which he increased to three years for his high level of intoxication and high speed. An additional six months was added for each of counts 2 and 3.
17. This Court held that it may be accepted that dangerous driving causing grievous bodily harm is a more serious offence than causing bodily injury under the influence of alcohol (at [11]). It also “had difficulty” with the primary Judge’s increasing the starting point from two and a half years to three years to reflect the high level of intoxication and high speed of driving (at [15]). Nonetheless, it did not consider that that starting point was manifestly excessive (at [16]).
18. The Court allowed the appeal and reduced the sentence because it found the primary judge erred in his approach to cumulation of sentence for the two additional counts. No such issue arises in the present appeal.

Primary Judge’s Reasoning

19. After considering the above authorities, the primary judge identified seven aggravating factors:

“25. In applying the principles in Gacitua, the identifiable aggravating factors here are:

1. Excessive consumption of alcohol;
2. Driving at excessive speed;

100. Disregard of warning from Miss Vaka¹ to slow down ;

4. Aggressive driving² [hitting the rear of the first vehicle, reversing and overtaking it] ;
5. Driving a dangerously loaded vehicle [with Ms Vaka sitting on another’s lap without the required safety restraint];
6. Causing serious injury to Ms Vaka; and
7. 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.”

20. The primary judge adopted the Crown’s submission of a starting point of four and a half years, whilst indicating that but for the Crown’s submission, she would have adopted a starting point of five years (at [26]-[27]). Her Honour deducted two years for mitigation leaving a final sentence of two and a half years imprisonment. The final 20 months of the sentence were suspended on conditions having regard to the appellant’s youth, good record, co-operation with the police and prospects of rehabilitation.
21. The appellant did not challenge the primary judge’s identification of excessive consumption of alcohol and driving at excessive speed as aggravating factors. He was right not to do so. This is so notwithstanding the observations of this Court in Pulu referred to at [15] and [16] above. In Pulu it was common ground that the sentencing discretion should be exercised having regard to the approach in Ikahihifo. In Pulu the offender did not engage in aggressive risk-taking behaviour. In this case the appellant did.
22. Moreover, although the same maximum penalty of 15 years imprisonment is imposed for offences under s 27(5) (reckless driving causing death) and s 34(1), the ingredients of the offences are materially different. Relevantly, under s 34(1) the offence is committed if the offender’s driving causes death or bodily injury and he or she returns a breath test exceeding 350 micrograms of alcohol per litre of breath. This is so regardless of whether the driving was reckless or dangerous. Accordingly, reckless or dangerous driving is an aggravating factor under s 34(1). Moreover, the degree of intoxication may be a relevant aggravating factor. Here the appellant was more than four times over the limit prescribed by s 33(1) and three times over the threshold for an offence under s 34(1).
23. 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.
24. The reduction of two years for mitigating factors and suspension of two-thirds of the resulting sentence, was generous to the appellant.
25. In finding that two years should be deducted from the starting point of four and a half years the primary judge relevantly referred to the appellant’s early guilty plea, clean record, and partial reparation offered to Ms Vaka.
26. The appellant contended he had made full reparation to Ms Vaka because he had joined with his parents in visiting her in hospital to apologise and to make her a gift of $200.
27. The primary judge did not expressly address the question whether the appellant had shown remorse. Her Honour recorded (at [12]) that Ms Vaka had stated that it was the appellant’s mother who visited her in hospital and given her $200. The appellant accompanied his mother to the hospital.
28. 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. 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.
29. The ground of appeal that the appellant made full reparation should be rejected.
30. It may be accepted that the appellant showed remorse and co-operated with the police.
31. 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, they 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.
32. For these reasons the appeal is dismissed.
    

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Randerson J

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White J

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Dalton J