R v Tapa'atu [2024] TOSC 1; CR 125 of 2023 (30 January 2024)

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

CR 125 of 2023

REX
-v-
‘Ivako Tapa’atu

SENTENCING REMARKS

BEFORE: ACTING LORD CHIEF JUSTICE TUPOU
Appearances: Mrs T. Vainikolo for the Prosecution
Mrs F. Vaihu for the Defendant
Date: 30 January, 2024

The charge

1. On 9 October 2023, the Defendant pleaded guilty to one count of reckless driving causing death, contrary to section 27(5) of the Traffic Act.

The offending

2. On Saturday 17 December, 2022, at approximately 5am in the morning, the Defendant, the Deceased and their two daughters left Afa for Nuku’alofa. The Defendant had been up all night preparing tutu for sale at the Talamahu market. The Defendant is the Deceased’s niece and generally, they worked together in their crafts and in selling them. That morning, the Deceased drove them in her car to Nuku’alofa.
3. The tutu sold quickly and by 7:30am the Defendant had sold all of it. When she returned to the car, she found the Deceased asleep at the back while their daughters occupied the front seats.
4. When the Defendant woke the Deceased, the Deceased requested that she drive them back because she had been playing bingo the night before. The Defendant’s daughter got into the back seat with the Deceased and the Deceased’s daughter sat on the front passenger seat alongside the Defendant as they drove back to Afa.
5. As they drove through the village of Navutoka on Taufa’ahau road, the vehicle began to veer off to the side of the road. The Deceased’s daughter told the Defendant to wake her mother up to drive. The Defendant rejected the suggestion and said it was fine and drove on. The Deceased’s daughter fell asleep.
6. When they got to the area between the villages of Manuka and Kolonga, the car veered off the road again waking the Deceased’s daughter who screamed out a warning they were going to crash into the electric pole. That woke the Defendant, who, put her foot on the accelerator crashing the car into the said pole.
7. The Deceased’s daughter went to check on her mother and found her lying between the front and back passenger seat of the car. The Defendant’s daughter was crying at the back. Tevita ‘Asake was the first to arrive at the scene. He helped the Defendant’s daughter out of the car and then pulled the Deceased up onto the backseat. Others soon arrived at the scene and helped Mr. ‘Asake put the Deceased onto another vehicle on which he rushed her to the hospital.
8. Regrettably, the Deceased died at 6:50am on Sunday 18 December, 2022 from significant cardiac contusion that led to severe irregular heartbeats. The doctor that attended to her, reported that the cardiac contusion was caused by blunt force trauma causing fracture to the Deceased’s sternum and three left ribs.

Crown’s submissions

9. The Crown submitted the aggravating features were:
   1. Loss of life; and
   2. Reckless driving.
10. The Crown submitted the mitigating features were:
    1. the early guilty plea;
    2. remorse;
    100. financial assistance to the Deceased’s family;
    4. reconciliation with the husband and children of the Deceased.
11. The Crown referred to two comparable cases:
    1. Simione Ikahihifo v R [2021] TOCA 21 – in that case, 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. While overtaking a vehicle in front of him, he collided 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 court below.

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 which has since been adopted and applied in this court.

2. R v Paletili Afu [2017] TOSC 7 – the Defendant was charged with reckless driving causing death, reckless driving causing grievous bodily harm, and reckless driving causing bodily harm. The Defendant attempted to overtake a lorry in front of him. The lorry carried passengers at the back. As the Defendant tried to overtake the lorry, the lorry turned right colliding with the Defendant’s vehicle. The impact ejected the lorry’s passengers from the truck tray. The passengers included a one-year-old baby, who died instantly, two suffered serious injuries while four others suffered injuries of a lesser kind. For the head Count, a starting point of 4 years imprisonment was set, reduced by 18 months for his early guilty plea, first time offender, good character and reparations accepted by the victims’ families. For the second count, 18 months was imposed and 9 months for the third Count, to be served concurrently. His sentence was fully suspended by way of mitigation and he had three children to care for.

Victim Impact Report

12. The widower, Taniela Pepe, accepts that the offending and his wife’s death was an accident and unintentional. He earns a living through the seasonal fruit picking scheme which takes him abroad. He feels the loss of his wife but has forgiven the Defendant. He says that the Defendant’s help in looking after his children while he is abroad tend to console and minimize his children’s grief. He says she has given him money and time to help him and his children and seeks leniency on her behalf.
13. I must note that I am stunned that apart from the widower’s letter in support of the Defendant, there is nothing to report the impact of the offending and the loss of a mother to the 5 children of the Deceased. Regardless of one’s age, the loss of a parent is a traumatic event. For the 5 children involved, they will never see or get to experience having a mother. Their interests have been minimized to a certain extend in this matter.
14. The Crown suggested a custodial sentence is appropriate consistent with its indicative sentencing submission of 4 ½ years imprisonment with the final 3 years suspended on conditions.

Defendant’s submissions

15. Mrs. Vaihu submitted the mitigating features in favour of her client were that she:
    1. is a first-time offender;
    2. is remorseful and feels indebted to the Deceased’s family;
    100. is the breadwinner for her family by making tapa and sells them at the market;
    4. she acts as a mother figure for the Deceased’s children and provides for them when she can;
    5. pleaded guilty at the earliest opportunity;
16. Relying on R v Liku’ohihifo (2019) TOSC 29; CR 77 of 2019, Mrs. Vaihu submitted a fully suspended sentence was warranted based on the said mitigating factors and the familial connections.
17. In support of the Defendant’s good character, letters from the widower, town officer of Afa, Tongatapu 10 Member of Parliament and the Bishop of the Afa Ward of the Church of the Latter Day Saints were filed.

Pre-sentencing report

18. The Defendant is 42 years of age and is married with 3 young children of the ages of 12, 8 and 5. She grew up in a close and stable family with 4 siblings. She lost her mother in 2015 and her father currently resides in New Zealand.
19. She attended Liahona High School and completed 5^th form. She is healthy and is self-employed. She makes and sells handicraft, including tapa. Her husband is a fisherman; they earn an average of around $800 each per week from their respective trades.
20. The Probation officer reports that the Defendant is remorseful and still grieves the loss of her aunt. She accepts full responsibility for the offending and has reconciled with the Deceased’s family.
21. The Defendant has a previous conviction (10 years prior) for assault where she was fined $100.
22. The Probation Officer placed the Defendant in the range of “very low risk” in terms of re-offending and opined that a fully suspended sentence on conditions including 100 hours community work was appropriate.

Starting Point

23. Section 27(5) of the Traffic Act provide:

“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.”

24. The particulars of the offending to which the Defendant pleaded guilty were that, she “did recklessly drive motor vehicle C26166 east on Taufa’ahau Road, when you drove while you were tired, which caused you to fall asleep, causing the vehicle to veer to the side of the road and collide with an electricity pole, causing the death of ‘Ana Pepe who was a passenger in the vehicle you drove.”
25. When the parties appeared for sentencing yesterday, I requested they clarify points that were unclear from the material before me. That discussion revealed that the Defendant did not have a driver’s licence at the time of the offending, she had no sleep the night prior, the Deceased’s 20 year old child was married, the 18 and 14 year old were living with other relatives and not the Defendant or the widower, except, the 14 year old has recently moved back to live with the widower at Afa.
26. I gave counsel the opportunity to address me on this new information. Mrs. Vaihu submitted that it was never intended for the Defendant to drive but because the Deceased asked her, she obliged and drove the group back. Further, she said that despite the Defendant not possessing a driver’s licence, she knew how to drive. She further referred me to R v Poasi Ngaluafe. Mr. Fifita declined to make any further submissions.
27. I have considered the guidance and approach in Ikahihifo and on the evidence, I am satisfied that three aggravating features identified in that case arise here. That is:
    • (a) driving when knowingly deprived of adequate sleep;
    • (b) disregard of the warning of the Deceased’s daughter to switch driving with her mother;
    • (c) commission of another offence at the same time, i.e., driving without a licence.
28. It is possible that there was also a “a prolonged, persistent and deliberate course of very bad driving”^[1] but apart from the vehicle veering off the road at Navutoka and the last but fatal departure from the road between Manuka and Kolonga, the evidence on the nature of the Defendant’s driving is scant. Perhaps, due to her passengers’ slumber. As a result, to make such finding would be speculation on my part.
29. Nevertheless, the Defendant willingly got behind the wheels of a vehicle with 3 passengers inside to drive a considerable distance without a licence while seriously deprived of sleep.
30. When the vehicle veered off the road the first time, she ought to have considered it a form of warning from her own physiology that this was something that will happen unless she stopped.^[2] She failed to stop and further ignored the warning from a passenger. Her conduct on this day, in my view, demonstrates a blatant disregard for the law and the safety of her 3 passengers and other users of the road.
31. The maximum penalty of 15 years imprisonment increased in 2012; clearly indicate the premium placed by Parliament on human life. To take a life by driving a motor vehicle dangerously (in this case recklessly) is to be regarded a crime of some seriousness.^[3]
32. In light of the new evidence that was not privy to either party when filing their sentencing submissions and having regard to the seriousness of the offence, the statutory maximum penalty, the comparable sentences and applying the guidelines provided by lkahihifo, the need to show denunciation of this dangerous behavior and to signal public condemnation by imposing sufficiently severe punishment and deterrence, I find a starting of 6 years' imprisonment appropriate.

Mitigation

33. For her early guilty plea, lack of relevant record, a long period free of any criminal activity and her genuine remorse for the loss of her aunt and the Deceased’s children’s loss of their mother, I reduce the starting point by 2 years resulting in a final sentence of 4 years imprisonment.

Suspension

34. Mrs. Vaihu referred me to Liku’ohihifo and Ngaluafe in support of her submission for a fully suspended sentence.
35. Liku’ohihifo is distinguished for two reasons. Firstly, the court took into account the fact that the Defendant was remanded in custody for a month while awaiting sentence and secondly, that the Deceased, while intoxicated, stepped out onto the road as the Defendant approached.
36. Ngaluafe is also distinguished in that the court acquitted the Defendant from the charge of causing death while driving under the influence of alcohol, and, instead convicted him of the alternate charge of driving a motor vehicle while under the influence of alcohol, for which he was fined $1000. In that case, the Deceased placed himself on the road the Defendant was travelling on.
37. Here, the Deceased was a passenger in the vehicle, putting her trust and tragically her life on the Defendant to drive her and their children home safely.
38. Most of the principles in Mo’unga v R [1998] TLR 154 at 157, favour the Defendant with the exception that she is not young. She has demonstrated genuine remorse and feels that she too has lost not only an aunt but a supporter and co-worker. She has been doing what she can in terms of her money and time to help the Deceased’s family, demonstrating an inclination towards rehabilitation.
39. The Defendant pleaded guilty at the earliest opportunity and cooperated with the police. I have also considered all of the complimentary references in her favour and I remind myself of the principle that:

“The courts must tread warily in showing leniency for good character in these cases to avoid giving the impressions that persons of good character may, by their irresponsible actions, take the lives of others and yet receive lenient treatment: MacIntyre (1988) 38 Crim R 135 at 139.

The sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to the objective circumstances: R v Rushby [1977] 1 NSWLR 594 AT 598-599.”^[4]

40. On the evidence, I am satisfied that there was no premeditation or deliberateness in this instant. In fact, the Defendant’s shortfall was in her failure to envisage the risk she was taking as described in Ikahihifo. There, the Court of Appeal described the mental element of recklessness as:

“involves knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk: Rv G [2003] UKHL 50; [2003] 4 All ER 765 at 766.”

44. The Court of Appeal, further on said this on the question of whether to suspend all or any part of a sentence:
    

“..... considerations of the serious nature of the offending, and the need for general and specific deterrence are to be reconciled with the community’s interest in a sentence which will encourage the appellant in his rehabilitation. Ultimately, ‘the major consideration is whether a suspension is likely to aid in the rehabilitation of the offender.”

45. In Australia^[5], exceptional circumstances may deem a non-custodial sentence appropriate. In Pyritz (Diane Catherine) (unreported, NSW CCA, 23 November, 1998) per Simpson J, His Honour said:
    

“Where the offender’s driving behaviour amounts to little more than momentary inattention or misjudgment, involves carelessness rather than deliberateness and involves no sustained pattern of driving that could be described as dangerous, a court may be entitled to conclude that the offence falls within the exception of dangerous driving cases for which a non-custodial sentence is appropriate.”

46. And further, in Dhanhoa (Kanaljeet Raju [ 2000] NSWCCA 257, 20 July 2000) per Priestley JA at [34] and [45] said:

“In dangerous driving offences the degree of self-punishment already suffered by the offender, as a consequent of having committed the offence is a relevant consideration in sentencing and constitutes a finding of special circumstances.”

47. I have given considerable thought to Mrs. Vaihu’s arguments and the Probation Officer’s report in favour of a fully suspended. In balancing the seriousness of the offending against the need for the Defendant’s personal deterrence, general deterrence and the public interest in a sentence that will encourage the rehabilitation of the Defendant, I am persuaded that the Defendant is entitled to some suspension.
    
48. Therefore, bearing in mind the principles in Mo’unga and those discussed above, acknowledging the self-punishment the Defendant must feel and the steps she has taken towards rehabilitation, I consider it appropriate to order that the final 3 years of the Defendant’s sentence be suspended on the conditions set out below.
    

Result

41. The Defendant is convicted for reckless driving causing death and is sentenced to 4 years imprisonment.
42. The final 3 years of the Defendant’s sentence is suspended on the following conditions, namely, that during the said period of suspension, the Defendant is to:
    1. not commit any offence punishable by imprisonment;
    2. report to the probation office within 48 hours of her release from prison; and
    100. not apply and/or hold a driver's license for a period of 3 years from her release.
46. Failure to comply with those conditions may result in the suspension being rescinded and the Defendant being required to serve the balance of his prison term.
    
47. In the result, and subject to those conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 12 months in prison.
    

NUKU’ALOFA	P. TUPOU KC
30 January, 2024	ACTING LORD CHIEF JUSTICE

---

^[1] Aggravating factor (d)
^[2] R v Lang[2001]EWCA Crim 2570
^[3] Murnin(Patrick James) unreported, NSW CCA, 16 August 1985) per Street CJ, cited in R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287 at 294, refer Sentencing Manual, Law Principles and Practice in New South Wales, Potas 2001.
^[4] Sentencing Manual, Law Principles and Practice in New South Wales, Potas 2001.
^[5] Refer “Sentencing Manual: Law, Principles and Practice in New South Wales”: Potas,2001