R v To'ia [2022] TOSC 99; CV 60 of 2021 (13 December 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 111/2022

REX

-v-

TITALI TO’IA

SENTENCING REMARKS

Before: Justice P. Tupou KC

Appearances: Mrs. Tupou Kafa-Vainikolo for the Prosecution

Defendant in person

Date: 13 December, 2022

The charge

1. The defendant, Titali To’ia a.k.a Tevita To’ia on 24 October, 2022 pled guilty one count of dangerous driving causing death, contrary to s.27(5) of the Traffic Act.

The Offending

2. It was late evening on Saturday 18 June, 2022 when the defendant was driving east in a car on Taufa’ahau Road towards Veitongo. At the same time, the Victim was also travelling in a car on Taufa’ahau Rd to return to his home in Vaini after having seen his girlfriend at Fangaloto. Both men had consumed alcohol. They met on the main road, Taufa’ahau Rd, at Ha’ateiho where they began racing at a speed of 100km/hr or more.
3. At the Lopaukamea Petrol Station near Veitongo the defendant had driven onto the right side of the road placing his car parallel to the victim’s on the left side where they competitively drove side by side at high speed.
4. Shortly thereafter, in order to overtake vehicles on the left side of the road, the victim also drove onto the right side of the road with the defendant in the front and the victim behind him maintaining high speed.
5. When they drove back onto the left side of the road, the victim indicated and drove onto the right side of the road to overtake the defendant’s car. As he was about to overtake the defendant’s car, the defendant veered his car towards the right side of the road, hitting the left rear of the Victim’s car causing both to lose control of their respective vehicles.
6. As a result of the impact, the victim’s car skidded and spun sideways hitting an electricity pole on the right side of the road breaking it in half landing back on the road facing in the opposite direction towards Nuku’alofa.
7. Meanwhile, the defendant’s car hit a watermelon market (stall) on the right side of the road before stopping in front of the house next to the stall facing east.
8. The victim was rushed to the hospital and was pronounced dead upon arrival at approximately 12:30am 19 June, 2022.

Crown’s submissions

9. The Crown submitted that the aggravating factors were;
   1. this is a serious offence;
   2. a life was lost;
   100. the speed and manner of the Defendant’s driving;
   4. the effect of the death on the Victim’s family;
   5. recidivist offender in terms of violence in that he intentionally hit the rear end of the Deceased’s vehicle which caused the death.
10. The mitigation factors, the Crown submitted were;
    1. the defendant’s early guilty plea’
    2. remorse shown by his apology to the deceased’s girlfriend.
11. The Crown referred to one comparable sentence, namely:
    2. Ikahihifo v R [2021] AC14 of 2021 - the appellant had been drinking with friends for several hours before driving from Hihifo to Nuku’alofa. He was driving at a speed of 80-100km/h and was overtaking a vehicle in front of him, colliding head on with another vehicle travelling the opposite direction.

The driver of the other vehicle died instantly and his passenger, his daughter suffered grievous bodily harm. For the dangerous driving causing death, a starting point of 9 years was set with a resulting sentence of 7 years after mitigation in the Supreme Court.

In its considerations, the Court of Appeal referred to Gacitua v R [2013] NZCA 234 and adopted the sentencing principles established in that case.

Gacitua set out 16 aggravating factors and 6 mitigating factors to aid a sentencing court in determining the level of culpability and seriousness of the offence. They were;

1. the consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a “motorized pub crawl”;
2. excessive speed; racing; competitive driving against another vehicle; showing off;

100. disregard of warnings from fellow passengers;

4. a prolonged, persistent and deliberate course of very bad driving;
5. aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking)
6. driving while the driver’s attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held)
7. driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills;
8. driving when knowingly deprived of adequate sleep or rest;
9. driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns;
10. other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle;
11. previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excess alcohol before driving;

50. more than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable;

13. serious injury to one or more victims, in addition to the deaths;
14. failure to stop; falsely claiming the victim was responsible for the crash or trying to throw off the victim off the bonnet;
15. causing death in the course of an attempt to avoid detection or apprehension;
16. committing offence while on bail.

The 6 mitigating factors were;

1. a good driving record;
   2. no previous convictions;
   100. timely guilty plea;
   4. genuine shock or remorse (which may be greater if the victim was a close relation or friend);
   5. offender’s age (only where lack of driving experience contributed to the commission of the offence);
   6. if the offender was seriously injured also.

The court went on to provide the following guidelines for determining starting points;

1. where there is an absence of aggravating factors, 12 – 18 months;
2. an offence of involving momentary dangerous error of judgment or a short period of bad driving aggravated by other aggravating factors (j) or (k) or (i) or (m) or (n) or (p), 2-3 years;

100. when the standard of driving is more highly dangerous by the presence of 1 or 2 factors (a) –(i), 4-5 years;

4. where extremely high level of culpability involving 3 or more of the aggravating factors (a) – (i), 6 years.

12. The Court of Appeal reduced the starting point to 7 years and added one year from the grevious bodily harm sentence resulting in a starting point of 8 years. That sentence was reduced to 5 years in mitigation with the final 2 years being suspended for 2 years.
13. Here, the Crown suggests a starting point of 9 years setting out the high level of culpability involving three or more of the aggravating factors set out in Gacitua, namely,
    1. the consumption of alcohol;
    2. great excessive speed, racing; competitive driving against another vehicle; showing off;
    100. a prolonged, persistent and deliberate course of very bad driving; and
    4. aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking).
14. In addition, the Crown proposed that this court should activate and add the period of the Defendant’s suspended sentence in case CR80/22 which he is currently serving to the sentence for this offending.
15. Lastly, the Crown sought an order disqualifying the Defendant from holding and obtaining a driver’s licence for a time pursuant to s.27(5) of the Traffic Act.

Victim Impact Report

16. The report on the parents and siblings of the victim is one of a family broken by the sudden death of a son and brother. His mother said that their family is not the same anymore. She said she no longer has any joy in her life, just bitterness.
17. She said her son had returned after completing his studies just 3 months prior and she had not had spent sufficient time with him.
18. The Victim was the oldest of 5 children. The family invested in him by sending him to Fiji to get an education. He returned home to await his graduation on 18 November, 2022. Sadly, his family never saw him graduate, instead they stood in to represent and receive his degree.
19. Mr. Nimo is heartbroken and is concerned about the impact of his son’s death on his other children. He prays a lot to God to give them peace. He said that the Defendant had apologized to his son’s girlfriend but not to him and his family, something they would have appreciated.
20. The second daughter, already working, asked to go to Australia to help her recover. The third son was unable to attend his brother’s funeral due to the covid-19 restrictions. The fourth child is studying at the University of the South Pacific and the youngest is in 3^rd Form in High School.

Defendant’s Submissions

21. The Defendant at an emotional mitigation hearing yesterday told me that the time he has spent in custody has taught him a lot and he truly feels remorseful for what he had done. He said he recalled having drunk 3 beers between 11 -12 midnight and at one point said that he did not hit the victim’s car. Notwithstanding that he acknowledged his plea and having received a copy of the Crown’s sentencing submissions and said that there are a lot of charges against him and that he would accept this court’s decision. I understand him to be referring to his 7 previous convictions listed by the Crown.

Pre-sentence Report

22. On 24 October, 2022 a pre-sentencing report was ordered to be filed by 21 November, 2022. It is unfortunate that no such report was received.

Starting point

23. The maximum statutory penalty for dangerous driving causing death is imprisonment not exceeding 15 years.
24. I have considered the guidance and approach in Ikahihifo and agree with the Crown as to the four aggravating factors it has identified above.
25. Here, the defendant’s consumption of alcohol combined with excess speed and exhibitionism, racing the victim and overtaking other vehicles travelling on the same road in a residential area constitute a serious offending and demonstrates a disregard for the law and for the safety of other users of the road.
26. Having regard to the seriousness of the offence, the statutory maximum penalty, the comparable sentences and principles set out above and applying the guidelines provided by Ikahihifo, also bearing in mind the need to show denunciation to the alarming rise in this dangerous behavior and to signal public condemnation by imposing sufficiently severe punishment and deterrence, I find a starting point of 7 years’ imprisonment appropriate.
27. In R v Fifita – CR 113 of 2021, a starting point of 8 years was set by Cooper J. In that case the defendant had failed to stop after hitting the deceased and then drove back taking a different route to avoid the crime scene and getting caught. I find this more serious than the instant case.
28. However, I find the commission of this offence while on bail is a further aggravating factor against the defendant and I add 1 year to the starting point in line with AG v Teulilo [2022] TOCA, where the court of appeal said;

“....... offending while on bail should normally be regarded as an aggravating factor in cases such as this since it demonstrates a tendency to reoffend despite the intended deterrent threat of pending charges and punishment if convicted. It is also a factor that needs to be taken into account when considering suspension.”

Mitigation

29. I consider the Defendant’s guilty plea and remorse shown by his apology to the victim’s girlfriend. While a personal apology to the victim’s family would have been ideal, having observed him in court yesterday, I found his expressions of remorse genuine.
30. For the above reasons and his good driving record, I deduct 24 months from his sentence resulting in a sentence of 6 years imprisonment.
31. I have not accommodated any deduction for the participation of the victim in the race, he suffered the highest penalty.

Totality Principle

32. In view of the defendant’s current sentence in CR 80 of 2022 and serving an aggregate sentence of 3 years and 6 months imprisonment with the final 12 months suspended for a period of 2 years on conditions for possession of illicit drugs methamphetamine and cannabis and possession of utensils.
33. I accept the two lots of offending here are separate and constitute quite different and separate criminal activities. The courts in Tonga have taken both drug offences and the alarming rise in the death toll from road accidents seriously.
34. Therefore, in order to send a strong message of denunciation and condemnation for both offending, I believe the totality principle requires the sentence in this action should be made partially cumulative to the sentence in CR 80 of 2022 as further detailed below.

Suspension

35. None of the principles in Mo’unga [1998] TLR 154 at 157 favour the defendant and I decline to suspend any part of the defendant’s sentence.

Result

36. The defendant is convicted for dangerous driving causing death and is sentenced to 6 years imprisonment.
37. To give effect to the totality principle, I add 4 years and 6 months of this sentence to the head sentence in CR 80 of 2022 resulting in an aggregate sentence of 8 years imprisonment.
38. I am importing the period of suspension in CR 80 of 2022 here and suspend the final 12 months of the aggregate sentence for two years on the following conditions, namely, that during the said period of suspension, the Defendant is to:

(a) not commit any offence punishable by imprisonment;

(b) be placed on probation;

(c) report to the probation office within 48 hours of his release from prison and thereafter as directed by his probation officer;

(d) reside where directed by his probation officer;

(e) complete courses in alcohol and drugs awareness and life skills as directed by his probation officer.

39. Failure to comply with any of those conditions will result in the suspension being rescinded, in which case, the Defendant may be required to serve the balance of his sentence in prison.
40. The defendant is disqualified from applying and/or holding a driver’s licence for a period of 12 months from his release.
    

P. Tupou KC
JUDGE

NUKU’ALOFA
13 December, 2022