R v Mafi [2024] TOSC 49; CR 69 of 2023 (2 August 2024)

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

CR 69/2023

REX

-v-

Kepueli Christopher MAFI

Sentence

BEFORE : THE HONOURABLE COOPER J
Counsel : Miss Kafa for the Prosecution
Mr. Edwards for the defendant

Date of
Sentence : 2 AUGUST 2024

ORDER OF COOPER J
DATE OF ORDER 2 AUGUST 2024

SENTENCE : 1. 4 ½ years’ imprisonment for causing death by dangerous
driving. The last year suspended for 2 years.
2. Mr. Mafi is disqualified from driving for 3 years from his
release from prison.

REASONS

1. On the night of 20 November 2022 at approximately 0400 hrs, Mr Mafi was driving along the Taufa ‘ahau road in an easterly direction approaching Nualei. He was the sole occupant of that car; a blue Toyota Ractis registration C27580.
2. Moments later his car struck Mr. ‘Ahotau Taufu’i, when he, Mr. Taufu’i, who was walking towards Veitongo, was in Nualei, in front of Samipeni’s bus park.
3. His left leg was fractured as was his skull and pelvis, he was bleeding from his ears, mouth and nose, gasping and unconscious when the bystanders who found him moments after he was hit, brought him to Vaiola hospital.
4. Tragically he died less than an hour after arriving at the hospital. The cause was the massive bleeding from the fractures he had sustained.
5. The day before Mr. Taufu’i had been with his family, they had all been working together at Fu’uamotu harvesting watermelons. That evening, the family returned to their ‘api in Pelehake. At some time around 11 pm, Mr. Taufu’i wanted to go out for a drive, just to cruise around and forget about the cares of a hard day’s work. His father took away the car keys, as it was his vehicle and he did not want his son to take it. The two ended up arguing. Then Mr Taufu’i decided he would walk into town.
6. He had walked all the way from Pelehake, past Vaini and was at the Samipeni residence shortly before the bend in the road leading towards Veitongo, when Mr. Mafi came around the corner first.
7. Mr. Mafi had spent his afternoon, the day before playing rugby. From there he had gone to Ha’atea for some drinks with his friends and team mates, including Kevini Penitani.
8. I pause to note that at the trial there was no evidence of Mr. Mafi having been intoxicated. Mr. Penitani did not know how much Mr. Mafi had to drink that evening and there was no evidence that suggested he was in any way over the legal limit.
9. In any event, after spending his time socialising, Mr. Mafi went to Vaiola hospital where his sister-in-law was due to undergo surgery. As he told police some time later, the operation could not go ahead and he drove home, at what was late at night, or perhaps more rightly described as the early hours of the morning of 20 November 2023.
10. There was no evidence of excessive speed. But his account to the police, which he gave some weeks later, was that he simply fell asleep at the wheel. That was how their Crown put their case at trial.
11. They called evidence of the people soon at the scene, including Mr. Semisi Telefoni, who followed a vehicle which must have been Mr. Mafi’s, moments after he drove off from the scene of accident.
12. The Crown never sought to portray it so, nor was there any evidence before me to suggest Mr. Mafi knew what had happened and that he had struck a person.
13. He made a number of confessions to police. In each he stated he fell asleep and that he came to as his vehicle was “climbing over something in the middle of the road.”
14. In his police interview he stated

I feel remorseful as I am aware that it has led to a loss of life. I feel guilty because it was me that caused the death.

15. In his statement following the interview he wrote out his confession, stating

I am truly remorseful for I know I was responsible for the accident that caused the death. In truth I did not expect such a thing to happen. I apologise to all the family, acquaintances and relatives who mourned. I thank the police for the work they do. Thank you.

16. Then he signed that document.
17. That was on 1 January 2023 at 7.32 pm. He had been arrested on 30 December after telling the police about how he had fallen asleep at the wheel and having driven over something at the location where Mr. Tauf’i was killed.
18. His arrest came about in this way. The day before, 29 December, Officer Lea’aemanu had driven past a funeral.
19. He was the officer who took over the investigation of who had killed Mr. Taufu’i. In doing so, he had seized CCTV from the Nualei Cargo building on Taufa’ahau road. That location was just a few hundred meters east of where the accident happened. The footage from 20 November 2022 had captured the image of Mr. Taufu’i walking west, timed at 4:00:5 3 and at 4:09:30 a small blue car heading east.
20. Left at the scene of the accident was the inner fender of a car. That revealed a serial number, which gave the officer the make and model; a Toyota Ractis. From the CCTV Officer Lea’aemanu believed that car was likely to be the blue car he had seen in the footage.
21. The witness, who had driven past the scene shortly after the accident, Mr. Semisi Telefoni, remembered a small blue car parked at the Vaini medical centre and he recalled the driver leaving his car to inspect the front bumper. He remembered some of the number plate to that vehicle; C-2580
22. Armed with these pieces of information Officer Lea’aemanu went to the Ministry of Infrastructure and searched all their records until they led him to one particular registration plate, for a blue Toyota Ractis; C 27580.
23. That was the number plate of a vehicle, parked at the funeral, on 29 December 2022, that Officer Lea’aemanu spotted as he drove past; the vehicle he was searching for. He and the colleagues he was with stopped their vehicle and spoke to Mr. Mafi. They left their number and asked him to call as they were investigating the death of Mr. Taufu’i.
24. Mr. Mafi called them not long after, that same day, met them at the airport and gave them a sworn statement.
25. In it he told them he was away in Vava’u on work at that time. His brother was in Tonga, visiting from Japan and the damage to the car was caused by his brother.
26. The next day Mr. Mafi telephone Officer Lea’aemanu and told him he had to talk.
27. It was at 0957 the morning of 29 December 2022 that Mr. Mafi explained to officer Lea’aemanu how he had fallen asleep and driven into “something in the middle of the road”. The officer took a full note and Mr. Mafi signed it off as true.

Pre-sentence report

28. Mr. Mafi is 32 years old. He has never been in trouble before, got no convictions and everything I have read of him makes the point, repeatedly, he is a good man, from a good family and has a good job with Tonga Power, a loving husband and father; a pillar of his community and church.
29. He trains new members of the company, works well with his colleagues and is respected and liked.
30. The probation report stated twice that Mr. Mafi has shown very little remorse. He did not apologise to the victim, on account of his lawyer’s advice and states that he will appeal his conviction.
31. This, as we shall see, stands in contrast to the full confession Mr. Mafi gave the police which Mr. Edwards, his lawyer, encourages the Court to consider as a sign of his, Mr. Mafi’s remorse.
32. The report’s author assessed Mr. Mafi as being at a “low risk” of re-offending.
33. The report was accompanied by letters of reference from his wife that underscores the comments, I have made in summary, of his character and stressed his work for his village rugby team, church and that he provides for their family.
34. His Parish Priest, Father Paea-‘i’Muli Vainikolo, spoke of his work at the Education for Christian Living he has done, the work improving the infrastructure of their village, his good character and devotion to his family.
35. His Town Officer Mr. Sivesta Fiva, said the same and more, noting his work as a farmer and his consistent integrity, as he put it.
36. The reference from Mr. ‘Aisea ‘Aholelei from Tonga Rugby Union, how Mr. Mafi has given so much to the teams he played with in his late teens and 20’s.
37. Mr. Timote Tu’ipulotu wrote setting out what a dedicated worker Mr. Mafi has always been; “good natured and works steadily” he stands by Mr. Mafi as diligent and of ethical The Principal of the School of Science and Technology, Mr. Tavite Tonga recognised what a determined student Mr. Mafi was, hardworking and successful at his studies. These comments were reflected in the letter the Deputy Principal of Tonga College gave Mr. Mafi noting his contribution to the school teams was immeasurable.

Crown’s submissions

38. The submitted comparable cases are the following, each involving death by dangerous driving.
    • Ikahihifo v R, AC 14 of 2021 (CR 304 of 2020)

The application of the Gacitua guidelines to arrive at a starting point of 7 years.

• Attorney General v Falakiko ‘Asisi Mafi, 132 of 2023

The use of the Gacitua guidelines a starting point of 6 years. The defendant was intoxicated and crashed his car, killing his wife and injuring his three children, two grievously.

• R v Mafoa‘aeata Latu, CR 92 of 2018

This case, like the two before, involved driving under the influence of alcohol, but was before the implementation of the Gacitua guidelines. Paulsen LCJ imposed a 5 ½ year starting point where the driver crashed into a tree, killing the passenger and seriously injuring another.

Victim impact statements

1. Veisinia Taufu’i is a 38-year-old female. She is the wife of the Deceased and she lives with the Deceased’s parents at Pelehake where she and the Deceased had also lived. The Deceased’s parents are both elderly.
2. There were no children of her marriage with the Deceased. They married in 2013. They had been dating 3 years prior to their marriage. Altogether, they had been together for 10 years and married for 7 years.
3. She cried as she explained that since the Deceased’s death, life has not been the same, and everything has been impacted by the Deceased’s loss. She said the following:
4. She and the family do not feel safe at their home anymore. They live in Pelehake which is on the way to the airport. They are situated on the main road, but have no immediate neighbours. They are surrounded by bush area. When the Deceased was still alive, no one would dare enter their property, but since he passed away, there have been several incidents of trespass. They’ve asked the Police Officers at Ha’asini Police Station to patrol by their property at night.
5. She and the family relied on the Deceased a lot as he would go to the plantation and get some root crops for them. However, since he passed away, they do not eat root crops from the plantation anymore. They have to buy their root crops.
6. They depend a lot on any gifts given by the Deceased’s mother’s older children. These are children she had before marrying the Deceased’s father. She also asks her own family for assistance at times. Additionally, the Deceased’s father will go fishing.
7. Before the Deceased passed away, she weaved fine mats and would sell one each month. Since the Deceased passed away, she has struggled with weaving, as she finds herself distracted and not motivated to do anything. Last year she was only able to sell 1 mat. This year she has not finished 1 mat.
8. Food is scarce now. There is no joy in eating with very little.
9. She perceives the Deceased’s mother has lost a lot of weight since her son’s passing. She developed heart issues. She was very close with the Deceased.
10. The Deceased’s father is still strong, but has displayed early symptoms of dementia since the Deceased’s passing.
11. She and the Deceased were the ones who lived with the Deceased’s parents and looked after them. Since he passed away, she has continued to do this. However, now Hola Vanisi (the Deceased’s half-sister) helps a lot with looking after them.
12. She misses her husband a lot. When she does not have the motivation to work, she will go to her room and sleep, sometimes even without eating. She has considered even taking her life because life is no longer worth living without her husband.
13. Neither the Accused or his family have apologised to them since her husband’s death. Even if an apology is made, it will not change what has happened. However, she believes that an apology would help with her grieving. She has love in her heart for the Accused and his family.
    

Hola Vanisi – older sister of Deceased

1. Hola is the older half-sister of the Deceased. She and the Deceased have the same mother, but different fathers.
2. After the Deceased passed away, she moved to live with her parents, her younger brother, and the Deceased’s wife. She is divorced and has two sons of her previous marriage. They too live with them at Pelehake.
3. The Deceased’s death has had the following effect on her and the family:
4. She explained that she was like a mother to the Deceased, and that the Deceased passing away has been like losing her own son. She really misses her brother and thinks of him often, especially because the way in which he passed away was very sudden and unfortunate.
5. She has observed that her step-dad (the Deceased’s father) and her mother are heart-broken by his death. She has observed that her step-dad is more easily annoyed and her mother dreams of the Deceased often. Her mother and the Deceased were very close, and whenever the Deceased got anything good, he would bring it home to their mother.
6. She also feels their home is no longer safe without the Deceased. She acknowledges that she has another brother who lives with them, but he is not as reliable as the Deceased was in protecting them. People were afraid of trespassing on their property before when the Deceased was still alive. However, now there have been instances of trespass and even evidence of housebreaking and theft (thankfully no one was at home at the time).
7. She and the family relied on the Deceased to go to the plantation and provide root crops for them. He would often provide them with sweet potatoes and taro. She explained that the Deceased’s father is a fisherman, and that when he did not go fishing, the Deceased would help by going to the plantation.
8. She used to travel overseas on the seasonal workers scheme, but she is unable to go since the Deceased passed away, because she is needed to stay with her mother and step-dad as they are elderly. The Deceased and his wife Veisinia used to take care of them.
9. She confirms that there has been no apology by the Accused to her or their family for causing the death of the Deceased. She is more hurt with the lack of apology by him or his family (as in the Tongan custom) because they are actually family. The Accused is a blood relative of their mother. If they do apologise, she will forgive them. However, she knows it will not solve or restore them to the place they were in before. Had they apologised early on, it would have given them some peace and consolation.

39. The Crown have relied upon a submission that the following are the aggravating features.
    • consumption alcohol, and
    • driving when knowingly deprived of sleep.
40. They submit a starting point in the range of 5-6 years, a 10 % discount for mitigation.
41. They submit the final 2 years be suspended for 3 years on conditions, including an alcohol abuse course.

Defence submissions

1. The Defendant is the main provider for the family and has been an employee for Tonga Power Limited since 2018. The letter of reference for Mr Mafi speaks for itself.
2. The Defendant is of good character and has provided this Honourable Court with a reference from his Church, a letter from the Town Officer of his village, letters from his school and letter from the rugby union. Not only has Mr Mafi as the Defendant been a person of good character, he has contributed to the community in particular his village.
3. In terms of the offending, it is accepted that Mr Mafi did give various accounts of his story to the Police. However, in correcting the story, we submit that it was not by any demand from the Police, where his final statement was given voluntarily.
4. In his Police statement given at the station, the accused stated: “I state that I am truly remorseful for I know I was responsible for the accident that caused the death. In truth is that I did not expect such a thing to happen. I apologise to all of the family, acquaintances and relatives who mourned. I thank the Police for the work they do. Thank you.”
5. It is this statement that was given voluntarily and without any legal counsel being present, which we say distinguishes the position from the Probation Report. It shows remorse from the Defendant, where it was given voluntarily to the Police and he was not asked to make such a statement. For this reason, we cannot accept the findings of the Probation Report that the Defendant lacked empathy or remorse toward the deceased or his family.
6. The Defendant has no previous convictions and is a first time offender.
7. The Defendant is grateful to the Probation Office for the finding that the Defendant is at low risk of re-offending.
8. The Defendant is aware that a term of imprisonment is likely, given the circumstances of the offending and the nature of the offence. In seeking mercy from the Court, we submit the following in terms of the sentence:
   • The term of imprisonment for similar circumstances and convictions has commenced with a term of between 4-5 years imprisonment and we rely upon the decision of Hon Justice Cato in Rex v Vaka Fanua Cr 108/2015 (at paragraph 5);
   • In terms of the sentence to the accused in Rex v Fanua there were aggravating factors, such as driving without a licence and he made off without rendering assistance;
   • However, due to the favourable consideration of factors such as character the learned Trial Judge in Rex v Fanua gave a reduction of 16 months with starting point at 4 ½ years in terms of mitigating factors. His Honour then imposed a term of imprisonment of 3 years. His Honour then reduced the time in prison by suspending the final 18 months in prison for Vaka Fanua’s sentence leaving his term of imprison at 18 months;
   • In the cases of Rex v Sau’iluma Guttenbeil AC 1 of 2015 the Court of Appeal refused to set aside the sentence where the whole sentence of 2 years 9 months imprisonment was fully suspended where the Defendant was charged with murder for running over her husband and the husband’s brother with a vehicle;
   • In the case of Rex v Paletili Afu Cr 10 of 2017 the Defendant was charged with a number of offences, where there were a number of victims in his dangerous driving charge. For the reckless driving causing death charge, his sentenced was fully suspended, however, he had to serve a term of imprisonment for the reckless driving causing grievous bodily harm and the four counts for reckless driving causing bodily harm.

42. They conclude by stating:

In closing we cannot accept the starting point range for this type of offending as stated in Ms Vainikolo’s indicative sentence dated 16 May 2023. It does not follow the range and starting point that Hon Justice Cato referred to in his decisions, where Hon Justice Cato followed the Court of Appeal’s views on the matter. Justice Cato said that the starting point was 4-5 years, not 6-7 years as Crown Counsel has stated.

43. Thereby it appears to me their submission is that a starting point of between 4 and 5 years is appropriate before any adjustment for mitigation.
44. I note, that is what the prosecution ultimately submitted.

Maximum sentence

45. The statutory maximum sentence for causing death by dangerous driving contrary to section 27 (5) Traffic Act is 15 years.

Approach to sentence

46. In considering what the correct starting point is, I have turned to the guidance given by the Court of Appeal in Ikahihifo v R AC 14/2023. The Court of Appeal adopted the approach taken in Gacitua v R [2013] NZCA 234; they stressed the importance of putting the offending in its proper position in the scale of seriousness of offending.
47. Of the aggravating factors referred to in Gacitua, within the ‘highly culpable standard of driving at the time of the offence’ category, one is present, (h) Driving when knowingly deprived of adequate rest.
48. It must be the case that following an afternoon of rugby, socialising and then going to and from the hospital up to and after 0300 hrs, Mr. Mafi knew he was tired. I note that nowhere in any account he gave the police or from Mr. Penitani, of the hours proceeding the accident was there mention of Mr. Mafi resting or sleeping.
49. Against that, the mitigating factors include that Mr. Mafi has no previous convictions.
50. In Ikahihifo, the Court of Appeal made an adjustment from the starting point in Gacitua of 4-5 years where one or more of the aggravating factors was present; seen as fundamentally necessary given the statutory maximum sentence In Tonga is 15 years.
51. In Ikahihifo, a 7 year starting point was considered correct where the defendant was drunk, drove both aggressively and at excessive speed before the “ill fated” manoeuvre in overtaking a vehicle, only to crash head on into the victim’s car, driving in the opposite carriageway.
52. This Court must acknowledge there were more Gacitua aggravating features in that case than in the instant one.
53. I have stressed that potential aggravating factors, alcohol and excessive speed have been eliminated from my assessment of this case.
54. The Court is keenly aware that Mr. Mafi being sent to prison will leave a hole in the lives of his family and community. All the good things he has done stand testament to him.
55. Yet, not as big a loss nor for as long, nor reverberating any the less is the death of Mr. Taufi, which can never be undone. He will not come back to his loved ones.
56. Taking all those matters together I conclude a starting point of 5 ½ years is correct, when I take into account the single aggravating feature.
57. I have not lost sight of the fact that Mr. Mafi gave police a false account on 29 December 2022 when they first found him with the vehicle they had identified as being responsible. But, the very next day he admitted responsibility. So I do not consider that an aggravating factor. Though his admissions and any remorse to be attached to it is tempered by his taking the case to trial.
58. He did not plead guilty and so his actions after the confession, that his lawyer has pleaded I take into account, tends not to demonstrate the remorse that has been urged upon me. For the mitigating factors and the personal mitigation, I deduct 1 year.
59. That makes a 4 ½ years sentence.

Suspension

60. The Court knows well the often quoted case of Mo’unga v R [1998] Tonga LR 154. Mr. Mafi is still relatively young and has not been in trouble with the law before.
61. Taking into account the low risk of reoffending and his good character, a portion of his sentence deserves to be suspended.
62. In keeping with ACJ Tupou KC’s approach in CR VAV 1 / 2023, R v Pese, and so as to give effect to proportionate sentencing in cases as serious as this, as well as consistency, I conclude no more than 1 year ought to be suspended.
63. The final 12 months of the sentence is to be suspended for a period of 2 years on condition that during the said period of suspension, the defendant is to:

(a) not commit any offence punishable by imprisonment;

(b) complete a life skills course

(c) be placed on probation; and

(d) report to the probation office within 48 hours of his release from prison and thereafter as required by his probation officer.

Conclusion
64. 4 ½ years’ imprisonment, the last year suspended for 2 years on the above
conditions.

65. Mr. Mafi is disqualified from driving for 3 years from his release from prison.

SUPREME COURT	2 AUGUST 2024
NUKU ‘ALOFA	COOPER J