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R v Leha'uli [2023] TOSC 5; CR 129 of 2022 (27 January 2023)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY


CR 129 of 2022

REX
-v-
TONGA LEHA’ULI


SENTENCING REMARKS


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: Mr J. Fifita for the Prosecution
Mrs S. Ebrahim (for Mr H. Tatila) for the Defendant
Date: 27 January 2023


The charge

  1. On 14 December 2022, the Defendant pleaded guilty to reckless driving causing death, contrary to ss 27(5) of the Traffic Act which provides that:

Every person who drives a motor vehicle on a road recklessly, or at a speed and in a manner which, having regard to all the circumstances, is or might be dangerous to the public, and who causes death to any person whilst so driving, commits the offence of reckless driving causing death and is liable on conviction to imprisonment for not more than 15 years, and the Court may order that the convicted person be permanently disqualified from holding or obtaining a driver’s licence.

The offending

  1. Tevita Samita Tu’alau Jr (also known as Mita Leka) used to reside with his family at Talafo’ou. He was 21 months old.
  2. On 26 August 2022, at approximately 5 p.m., Tevita and members of his family returned home from Nuku'alofa. Their home is on Taufa’ahau Road facing the ocean. Inside the house, the adults talked while Tevita and other children played.
  3. At one point, Tevita went outside to the front of the house directly in front of the main road. Across the road at the seaside, his uncles, Sione and Funaki Fifita, were pulling in their boat.
  4. At that moment, the Defendant was driving a dual cab truck with three passengers heading towards Makaunga[1] to drop off his sister and her neighbour. As the truck approached, Tevita was standing on the side of the road and about to step out onto it when his Uncle Sione called out to him to stop because there was a vehicle coming. The Defendant’s vehicle then struck Tevita. The force of the impact flung his body about five metres before the truck then ran over him. The Defendant stopped his truck some distance from where the collision took place. Funaki Fifita approached the Defendant and asked him where he was looking and why he was driving so fast. The Defendant apologised and stated that he did not see the child.
  5. Tevita Snr rushed his son to the hospital where he received emergency treatment, and his condition was initially stabilised. However, later that night, his condition, marked by head injury, hypoxia (low oxygen levels) and fractures to both his legs, rapidly deteriorated. The tragedy and heartbreak of what followed can only be conveyed by the following passage from his father’s statement:
“... At approximately 2400hrs or about, the doctors were still working on my son but Tevita [member of the medical staff] spoke out and asked if he and I could talk. He informed me that they are trying to keep my son alive but there aren’t any positive signs because the only reason why his heart is still beating is because they are pumping him, when they stop that’s it. I felt how they were trying and also the conversation I had with Tevita. I then informed Tevita to let my son go and be with Our Heavenly Father in peace. At that moment, it was clear to me that my son has passed away.”
  1. The Defendant was arrested and voluntarily agreed to conduct a demonstration at the scene the next day. Photographs of the scene[2] included the Defendant pointing at a marker denoting where Tevita was standing when the
    collision occurred which may be best described as the junction between the driveway and the edge of the road. The area of the road in question was dual lane marked by a broken centre white line.
  2. The photographs also depicted that the sides of the road in question were clear to a width of at least two metres and much wider at the front of the family’s residence. Those clearances extended for what may be estimated from the photographs as at least 100 metres either side of the residence, thereby providing a clear view of Tevita on the roadside. The photographs did not contain any evidence of skid marks from heavy braking or of the vehicle swerving away from Tevita before colliding with him.
  3. When questioned by police, the Defendant denied that he was speeding and said that he only noticed Tevita about one metre away from where the boy was about to cross the road. Notwithstanding, the Defendant accepted the charge and expressed remorse in his voluntary statement.
  4. The Crown contends that the features of the Defendant’s driving which constitute the charge, that is, at a speed and in a manner which, having regard to all the circumstances, is or might be dangerous to the public, were excessive speed and driving too close to the side of the road on the pedestrian walkway where Tevita was standing instead of closer to the centre of the road.
  5. In his statement to police, Funaki Fifita recalled:
“... a light blue double cap [sic] vehicle I note that it was running at high speed and it didn’t break and then hit the child but rather the vehicle collided with the child and then the vehicle slowed down and came to a stop. The front left light of the vehicle hit the child and the child flew. The vehicle drove over the child and the child rolled to the grass. The distance of where the child was hit and the area where the vehicle came to a stop was between one streetlight pole or 50 meters. ...”
  1. Sione Fifita stated that:
“... The child stood at the side of the main road. The speed of the vehicle as I estimated was fast, it sped between 60 to 70. The vehicle approached from the south of the coastal road and the child stood from the left side of the road. The moment the vehicle collided with the child, the child flew and landed on the road and the front wheels of the vehicle drove over the left side of the child, it was obvious the vehicle went up and down from my standpoint. I ran to the side of the road where the child is positioned on the grass. I can approximate the position of the child to be five meters from the main road. ... The area where the incident occurred in the front of our yard and the distance of the vehicle was one streetlight pole. ...”

Crown’s submissions

  1. The Crown submits the following as aggravating features of the offending:
  2. The Crown submits the following as mitigating features:
  3. The Crown relies on the decision in Ikahihifo v Rex (unreported, Court of Appeal, AC 14 of 2021, where the Court of Appeal adopted the guidelines set out by the New Zealand Court of Appeal in Gacitua v R [2013] NZCA 234 (“Gacitua”), which will be discussed further below.
  4. The Crown submits the following as an appropriate sentencing formulation:

Victim impact statement

  1. The following is a summary of the impacts of the loss of her son from Tevita’s mother, Kalisi.
  2. At the time of the incident, she was six months pregnant. Although she was devastated, she had no choice but to try and keep herself together for the sake of her unborn child. She and her family have suffered emotionally. Her husband acted differently, sitting by himself at the beach, keeping to himself. Since taking work at the wharf, he is returning to normal. Tevita was a very active boy, and his absence is strongly felt. His older brother, Punefu, who is 4 years of age, is now very quiet. Sometimes he asks about Tevita and cries when looking at his photograph. When they eat, Punefu asks for food to put out for Tevita and when they pray, Punefu always blesses Tevita. She feels that she and her husband were also careless in not taking better care of Tevita.
  3. The day after the incident, the Defendant’s family apologised to them. The next week, after he was released from Police custody, the Defendant, his wife and child apologised to them. They have accepted the apologies and have no ill feelings towards the Defendant. Their son cannot be brought back to life. The Defendant’s family assisted with the funeral by providing root crops, preparing the burial site, paying for the portable freezer box for the body during the wake and other gifts of money for anything else needed.
  4. The two families have remained in contact. The Defendant and his family continue to visit and bring food.

Presentence report

  1. The Defendant is 27 years of age. He is the youngest of eight children. He is said to have been raised in a ‘decent family’. He left school during Form 5 and has no other formal qualifications. He married in 2020 and now has an 18-month-old child. His wife is pregnant with their second.
  2. The Defendant is an active member of his church in which he is a Pastor, Youth Leader and Band Leader. The church had plans for him to attend Pastoral training in Fiji this year following his appointment as a Senior Pastor.
  3. In relation to the offending, the Defendant did not seek to offer the probation officer any excuse. Rather, he expressed guilt, blame and regret.
  4. The probation officer described the Defendant as a ‘good citizen’. That assessment is consistent with the views expressed in letters of support from the Pastor in charge of his Parish and his Town Officer. The probation officer concluded by noting that the Defendant now knows that given the seriousness and consequence of this type of offending, ‘imprisonment is inevitable’.

Defence submissions

  1. Mr Tatila’s submissions on behalf of the Defendant may be summarised as follows.
  2. In relation to the offending:
  3. In relation to the Defendant’s antecedents and personal characteristics (other than those already stated in the presentence report):
  4. In relation to the Defendant’s demonstrated remorse:
  5. In relation to other mitigating factors:
  6. Mr Tatila referred to the following decisions, in summary:
  7. For those reasons, Mr Tatila submitted that in the present case:

Starting point

  1. As noted above, the maximum statutory penalty for reckless driving causing death is 15 years imprisonment.
  2. As the Crown submitted above, the Court of Appeal has recently reviewed the approach and considerations relevant to sentencing for this type of offence. In Ikahihifo v R [2021] TOCA 21, the appellant had spent several hours drinking spirits with friends. Later that evening, when the appellant was described by one of his friends as ‘drunk’, he drove his vehicle with a passenger along Hihifo Road towards Nuku'alofa. The vehicle was estimated to be travelling between 80 and 100 km/h (in a 70 km/h zone) when the appellant decided to overtake a slower vehicle in front. In doing so, the appellant’s vehicle collided head-on with a smaller vehicle travelling in the opposite direction. The collision occurred at a point approximately parallel to the vehicle the appellant was overtaking. The driver of the other vehicle died instantly. His front seat passenger suffered serious fractures to both legs which required surgery and resulted in some residual disability. The appellant lost consciousness at the scene. Due to the appellant’s condition, the police were unable to conduct a breathalyser test. Later, when questioned, the appellant chose to remain silent.
  3. Niu J sentenced the appellant to 7 ½ years imprisonment for the dangerous driving causing death and 4 years for causing grievous bodily harm to be served concurrently. His Honour refused to suspend any part of the head sentence.
  4. On appeal, the Court of Appeal noted that the decisions referred to by counsel below[3] almost consistently suggested a settled primary starting point for dangerous driving causing death in Tonga of four to five years imprisonment. The genesis of that range was found in the decision in R v Fanua [2016] Tonga LR 208, in which Cato J considered that the Courts, in such cases, must impose sentences which deter others from driving in the proscribed manner and causing death or injury to other members of the public and that sentences must serve as an example to others to ensure the security or safety of the public and to properly reflect the fact that a person has died or suffered injury.12
  5. However, the Court of Appeal did not agree with his Honour’s comparative analysis with the established starting point for rape, of five years, as being instructive in sentencing for offences such as the present, which result in death, and where the mental element of recklessness involves knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk.[4]
  6. The Court opined that a general starting point of four to five years imprisonment for reckless driving causing death, is unlikely to consistently reflect, or effect, the statutory imperatives enacted by the 2012 amendments to the Traffic Act which increased the maximum penalty from 10 to 15 years imprisonment, including to provide greater deterrence to reduce the alarming rise in the incidence of such driving and its tragic consequences.
  7. The Court of Appeal then considered the decision of Gacitua in which the New Zealand Court of Appeal referred to sentencing in cases of death caused by dangerous or reckless driving or driving under the influence of alcohol or drugs as ‘highly fact-specific’ and that much depends on the particular circumstances of the offending. Their Honours then explained the accepted sentencing approach in New Zealand in cases in this category of measuring culpability by reference to the following aggravating and mitigating factors:20

Aggravating factors, in four categories:


Highly culpable standard of driving at time of offence


(a) The consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl’.
(b) Greatly excessive speed; racing; competitive driving against another vehicle; ‘showing off’.
(c) Disregard of warnings from fellow passengers.
(d) A prolonged, persistent and deliberate course of very bad driving.
(e) Aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking).
(f) Driving while the driver’s attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held).
(g) Driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills.
(h) Driving when knowingly deprived of adequate sleep or rest.
(i) Driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns.

Driving habitually below acceptable standard


(j) 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.
(k) Previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving.

Outcome of offence


(l) 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).
(m) Serious injury to one or more victims, in addition to the death(s).

Irresponsible behaviour at time of offence


(n) Behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash or trying to throw the victim off the bonnet of the car by swerving in order to escape.
(o) Causing death in the course of dangerous driving in an attempt to avoid detection or apprehension.
(p) Offence committed while the offender was on bail.

Mitigating factors:


(a) a good driving record;
(b) the absence of previous convictions;
(c) a timely plea of guilty;
(d) genuine shock or remorse (which may be greater if the victim is either a close relation or a friend);
(e) the offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence), and
(f) the fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving.
  1. The Court of Appeal then identified starting points for sentences (under the statutory maximum penalty in New Zealand of 10 years imprisonment) in four categories:
  2. The Tongan Court of Appeal saw no reason why the above Gacitua guidelines should not be instructive in Tonga, with the recommended starting points or ranges necessarily modified to reflect the higher prescribed maximum penalties. However, the Court cautioned that such guidelines do not represent strict or inflexible formulaic rules to be applied in every case. As stated in Fallowfield,[5] the initial task is to place the offending in its proper position in the scale of seriousness of offending. The Gacitua guidelines may assist in that task. By the same token, it may be necessary to depart from such guidelines, up or down, in determining the appropriate starting point for the particular offending in a given case.[6]
  3. After applying the above guidelines, the Court of Appeal adopted a starting point for Ikahihifo of 7 years imprisonment for the dangerous driving causing death count, and 4 years for the dangerous driving causing grievous bodily harm count. To reflect the totality principle, 1 year from the 4 years was added to the head count of 7 years, making that a head sentence of 8 years imprisonment. For the appellant’s early guilty plea, good previous record, remorse demonstrated by very meaningful reparations to the family of the deceased and the other victim, and their forgiveness, the starting point was reduced by 3 years, resulting in a sentence of 5 years imprisonment. As the appellant was 55 years of age, with no previous convictions, and he had already taken steps towards rehabilitation by attending an alcohol and drugs awareness program prior to sentencing, the final 2 years of his head sentence were suspended on conditions.
  4. Before turning to assess culpability and apply the above principles to the instant case, there are a number of factual controversies on the material filed to be resolved. As neither party called for a Newton hearing to adduce further evidence on these issues, I must assess them as best I can on the available information bearing in mind that the Defendant has pleaded guilty to the charge as particularised in the indictment and summary of facts.
  5. The first is the direction in which the Defendant was travelling at the time of the incident. The Crown stipulated that he was heading north. By his counsel’s submissions, the Defendant says he was heading south. There is significance in the difference.
  6. In responding to this part of Mr Tatila’s submissions, the Crown notes that the Defendant’s contention is contrary to the allegation in the indictment and summary of facts, to which the Defendant pleaded guilty and is therefore taken to have admitted.
  7. The Crown says further that the Defendant’s contention is inconsistent with the photographs and the statements of the uncles who witnessed the incident. Having reviewed the photographs supplied by the Crown, which do not contain any captions or narratives, I am unable to ascertain from them alone the direction in which the Defendant was driving. However, Sione Fifita stated that the vehicle ‘approached from the south’ which I interpret to mean it was heading north. Funaki Fifita did not state the direction in the vehicle was travelling but he did state that ‘the front left light of the vehicle hit the child’.
  8. If the Defendant was travelling north, as contended by the Crown, and assuming in the absence of evidence to the contrary that he was driving in his lane (i.e. the left side of the road) and did not swerve out of it, then the child would have to have walked from the right hand side (or west) of the roadway in front of his residence across that lane towards the seaside (west) and into the path of the Defendant’s truck. If that is correct, then on Funaki’s version, the child would had to have walked across almost the entire width of the roadway before being struck by the left headlight of the vehicle being closest to the seaside. If so, one would expect the body to have been flung in that direction which is not consistent with other accounts.
  9. In circumstances where, as noted above, the sides of the roadway were quite clear, and even moreso at the front of the Tu’alau residence, it is inconceivable, in my view, that on the above (travelling north) hypothesis, the Defendant did not see the child well in advance of the collision point. It is also inconsistent with the Defendant telling police during the demonstration that he first saw the child at the junction of the driveway and the road.
  10. Reference to Google maps shows that if, as he has stated, the Defendant was driving from Manuka (in the north) to Makaunga (in the south) through Talafo’ou where the collision occurred, he had to be travelling in a southerly direction. His version, in that regard, is consistent with paragraph 11 of the summary of facts in which the Crown alleged that he was “heading to Makaunga” which is the next village south of Talafo’ou.
  11. For those reasons, I am satisfied that the Defendant was driving in a southerly direction. That finding is also consistent with universal accounts of the suddenness between seeing the child on the edge of the roadway and the collision.
  12. The second issue is the speed at which the Defendant was driving immediately prior to the collision. The uncles described it as “high speed” and “60 to 70” respectively. The Defendant told police it was approximately 48 km/h. I have reservations about that. In circumstances in which an indubitable cause of the collision was the Defendant not paying proper attention to the road ahead where, by all accounts, the child had approached the road from his open front yard and stood at the edge, it is very difficult to accept that the Defendant at the same time was looking at his speedometer to record his speed.
  13. Speed is also not to be viewed solely by reference to the prevailing speed limit in a given area, but also other features of the road in question and users of it. For instance, in a situation where an accident has occurred and vehicle debris and people attending those who may be injured create potential danger to themselves and others on the roadway, a following vehicle cannot automatically expect to maintain the speed limit and drive right through or around the accident site without due regard to the safety of others and the risks posed by the situation. That will normally require a reasonable and prudent driver to exercise greater care including by reducing his speed. Similarly, where a very young child comes out near the edge of a roadway, a motorist in the position of the Defendant is reasonably expected to exercise caution, which at the very least will usually require reducing his speed and braking heavily, if necessary; and/or, if safe to do so, to steer closer to the centre of the carriageway. That, of course, assumes the driver is keeping a proper look out and sees the child at a distance which permits those precautions to be taken in a safe manner.
  14. Here, the Defendant took none of those measures. On the available evidence, I do not accept that the child mysteriously and suddenly appeared from nowhere so that the Defendant genuinely had no reasonable opportunity to take evasive action. Had the Defendant been paying attention and keeping a proper lookout, he could have taken any of the above measures to avoid the collision. That he did not do so is also consistent with him travelling at excessive speed in the circumstances.
  15. The third issue is the location at which the truck collided with the child. The Defendant’s reference in submissions to the photographs showing that the child impacted with the centre of the front of the vehicle (“between the two front lights”) is of limited assistance. The photographs show the truck as being of some age with various dents and signs of wear on the front of its body. There is no apparent sign, for instance, of any blood at any particular point on the front. A comparative photograph of the truck before the incident may have been more instructive. Of the damage to the front that is visible in the relevant photographs, there is a part of the body which has the Nissan badge in the middle just above the radiator vent, and above the left front headlight, which appears more damaged than the rest and is in fact bent outward away from the chassis. That location is consistent with Funaki Fifita’s statement that “the front left light of the vehicle hit the child”. It is also consistent with the above analysis of the vehicle heading in a southerly direction so that the child was standing very close to the edge of the roadway and the left side of the Defendant’s vehicle.
  16. The fourth and related issue is whether the child stepped out suddenly into the path of the truck or whether he was standing on the edge of the roadway when the truck hit him. If the former, then the Defendant should have seen the child approaching the roadway from a sufficient distance to have slowed down and/or swerved away from the left-hand edge of the carriageway. If the latter, then the left-hand wheels of the truck must have been partly off the road and on the grass footpath. Neither of the uncles referred to the child stepping out onto the roadway. By the account of the Defendant and his passenger, the child would have had to have walked more than a metre onto the roadway. In either case, the manner of the Defendant’s driving, in those circumstances, was dangerous.
  17. Ultimately, on those findings and observations, I am satisfied that the Defendant’s plea of guilty is legally sound. Mr Tatila’s references in his submissions on mitigation to the case involving “inevitable accident” were legally misplaced. Had that been the proper analysis, one would expect the Defendant to have pleaded not guilty on the basis of what is a common law defence. At best, the decision may be regarded as marginal. However, the Defendant has repeatedly maintained his plea of guilty on the basis that the child’s death was due to some fault on the Defendant’s part. While the material before me does not specify the nature of the fault or reckless driving admitted by the Defendant, I am of the view that the most reliable and logical version of the relevant facts is as set out in the analyses above. I am fortified in that view by the fact that the Defendant is represented and has been advised by experienced counsel (including in similar previous cases).
  18. In considering the Defendant’s conduct in light of the factors discussed in Gacitua, I am satisfied of the presence of the aggravating factor of driving while the Defendant’s attention was avoidably distracted. In terms of categories of starting points described in that case, I consider the present falls within the second being an offence involving a momentary dangerous error of judgment or a short period of bad driving.
  19. Taking the starting point or range in Gacitua for that level of culpability and adjusting it by reference to the Tongan statutory maximum penalty and the other comparable sentences referred to above, I consider the appropriate starting point to be 4 years imprisonment.

Mitigation

  1. For the Defendant’s early guilty plea, good previous record, demonstrated remorse, substantial compensation to the victim’s family and reconciliation with them, I reduce the starting point by 18 months, resulting in a sentence of 2 ½ years (or 30 months).

Suspension

  1. It is common ground that, on a consideration of the factors discussed in Mo’unga [1998] Tonga LR 154 at 157, the Defendant qualifies for some suspension of his sentence. He is still relatively young, he has a good previous record, he co-operated with the police (notwithstanding Mr Tatila’s submission about the Defendant recanting his demonstration about where the victim was standing when the Defendant first saw him) and he pleaded guilty at the earliest opportunity. I also take into account that he is highly regarded in his church and community; his remorse and that the victim’s family have forgiven him.
  2. The issue therefore is whether the sentence should be fully suspended, as Mr Tatila submits, or only partially, as the Crown submits.
  3. Recently, in Losalu v R [2022] TOCA 24, the Court of Appeal stated that:
[9] Where the considerations for suspension in Mo’unga are met (which may be assumed here), it does not automatically follow that a sentence must or should be fully suspended. Those considerations are not the only factors. Also relevant may be the seriousness of the offending, the need for an effective deterrence, the effect on the complainant, and the personal circumstances of the offender or those dependent on him or her: R v Motulalo [2000] Tonga LR 311; Vake [2012] TOCA 7, referring to Misinale [1999] TOCA 12.
  1. In the present case, while one may have every sympathy for the Defendant and the effect any period of imprisonment is likely to have on him and his family,[7] I am not persuaded that full suspension would strike the appropriate balance between the Defendant’s rehabilitation on the one hand and the sentencing imperatives of punishment, denunciation and particularly deterrence for an offence of this kind, on the other. Nor do I consider that full suspension would meet with the community’s expectations or reflect Parliament’s intention when it increased the statutory maximum penalty for a crime that, sadly, remains all too prevalent and which results in the loss of human life, especially that of a very young child.

Result

  1. The Defendant is convicted of reckless driving causing death and is sentenced to 2 ½ years imprisonment.
  2. The final 18 months of the sentence are to be suspended for a period of 2 years from the Defendant’s release from prison on condition that during the said suspension period, he is to:
  3. Failure to comply with the said conditions may result in the suspension being rescinded, in which case, the Defendant will be required to complete the balance of his prison term.
  4. Subject to compliance with the above conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 12 months in prison.
  5. Finally, the Defendant is disqualified from holding or applying for a driver’s licence for a period of 3 years from the date hereof.

NUKU’ALOFA
M. H. Whitten KC
27 January 2023
LORD CHIEF JUSTICE

[1] There is a dispute between the parties as to whether the Defendant was traveling north or south which will be addressed further below.
[2] Numbers 4 to 8.
[3] Which included Mafoa’aeatu Latu (CR 19/18) and Liku’ohihifo, ibid, although that decision was regarded as highly distinguishable.
[4] At [28], citing R v G [2003] UKHL 50; [2003] 4 All ER 765 at 766.
[5] [1996] 3 NZLR 657
[6] At [35].
[7] In relation to the so-called ‘breadwinner plea’, see the Court’s repeated stance, as recently reiterated in R v Fonokalafi [2022] TOSC 92.

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