R v Funaki [2025] TOSC 49; CR 51 of 2025 (8 July 2025)

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

CR 51 of 2025

REX
-v-
Manase Kaho ‘I Vailahi FUNAKI

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC

Appearances: Mr. A. Fisi’iahi for the Prosecution
Mr. S Vaipulu for the Defendant

Date: 08 July, 2025

The proceedings

1. On 13 May, 2025, the Defendant, represented by Mr Samiu Vaipulu, pleaded guilty to recklessly driving a motor vehicle, east on Hihifo Road, at an excessive speed whilst it had defective tyres, causing him to lose control of the vehicle, veer off the road, roll over and hit a fence, causing the deaths of Salesi Funaki and Dorothy Funaki who were passengers in the said vehicle, contrary to section 27(5) of the Traffic Act.

The offending

2. On 22 January 2025 at about 7:00 pm, the Defendant, his wife, their eldest son, 12 year old Salesi Funaki, and 9 year old Dorothy Funaki left their home at Sia'atoutai heading for church at Havelu. The Defendant, Manase Kaho 'i Vailahi Funaki, was driving.
3. The Defendant drove onto Hihifo Road and headed eastward. Initially, he attempted to overtake a white vehicle but was unable because the white vehicle accelerated. The Defendant’s wife told him to slow down.
4. The Defendant kept speeding and took over another vehicle near the turn to the village of Puke. After that he made another attempt to overtake a third vehicle near Hofoa. In doing so, the Defendant lost control of the vehicle, which veered left and rolled over onto the fence of Fale'aisi’s residence at Hofoa. The impact caused the deaths of his son, Salesi Funaki and daughter, Dorothy Funaki.
5. The passengers were rushed to Vaiola Hospital where Doctor Pafilio Tangitau confirmed that Salesi and Dorothy showed no signs of life upon arrival.
6. On 22 January 2025, the Defendant was arrested for reckless driving causing death.
7. On 27 January 2025, during his interview with the Police, the Defendant admitted he was driving at 80 kilometres per hour and that the accident was caused by a tyre detaching from the vehicle, which he had known to be faulty before the crash.

Crown’s submissions

8. The Crown submits that the aggravating features of the offending are:
   1. The seriousness of the offence; and
   2. The death of two children.
9. The Crown submits the following as mitigating features;
   1. early guilty plea;
   2. no previous convictions;
   100. lacked premeditation;
   4. cooperation with the Police; and
   5. remorse;

Crown’s Position on Sentencing

10. The Crown referred to the following comparable sentences:
    1. Rex v Tonga Leha’uli (CR129/22) – The Defendant was convicted for reckless driving causing death. The victim was standing by the roadside and just as the Defendant drove by, the victim stepped onto the road and was hit by the Defendant. A starting point of 4 years’ imprisonment was set, reduced by 1 ½ years for mitigation, resulting in a sentence of 2 ½ years imprisonment. The final 18 months were suspended for 2 years on conditions. The Defendant was disqualified from holding or applying for a driver’s licence for a period of 3 years.
    2. Rex v Tapa’atu (CR125/23)- The Defendant and the victim had been up all night preparing tutu for the market the next morning. The tutu was sold out quickly and they returned home to Kolonga. The Defendant, sleep deprived, drove them back. She fell asleep and woke up when one of her passengers screamed. The Defendant stepped on the accelerator and crashed into an electricity pole. She pleaded guilty. A starting point of 6 years was fixed, reduced by 2 years for Mitigation, leaving a final sentence of 4 years imprisonment. The final 3 years was suspended on conditions, including not applying or holding a driver’s license for a period of 3 years.
    100. Ikahihifo v R AC 14 of 2021 (CR 304 of 2020) – The Court of Appeal adopted the accepted approach in New Zealand in this category of cases, measuring culpability by reference to the following aggravating and mitigating factors.

The Aggravating factors were categorized into 4 namely:

1. highly culpable standard of driving at time of offence;
2. driving habitually below acceptable standard;
3. outcome of offence; and
4. irresponsible behaviour at time of offence.

The Mitigating factors included:

5. a good driving record;
6. the absence of previous convictions;
7. a timely guilty plea;
8. genuine shock or remorse; and
9. age of the offender.

The following starting points were considered appropriate:(under the statutory maximum penalty in New Zealand of 10 years’ imprisonment) in four categories

a) where aggravating factors are absent, a starting point of 12-18 months;

2. where the offence involves momentary dangerous error of judgment or a short period of bad driving aggravated by unacceptable driving, death of one or more victims or serious injury, two to three years;

100. when the standard of driving is more highly dangerous, four to five years; and

4. in cases involving extremely high level of culpability involving three or more of the aggravating factors, 6 years’ imprisonment.
4. R v Mofoa’aeata Latu, CR92/2018- The Defendant was intoxicated at time of offending. He drove with others to obtain more alcohol. On the way back he was excessively speeding, lost control of the vehicle, hit a lamp post, flipping the car onto its opposite side, skidded into a tree, flipping the car back to its normal state. A starting point 5 years and 6 months imprisonment was set, discounted by 12-months in mitigation plus a further 15 months for his early guilty plea. The Defendant was sentenced to 3 years and 3 months imprisonment. Paulsen CJ opined that a full suspension would not reflect the seriousness of the offending, its consequences nor the public interest in denunciation and deterrence to fully suspend his sentence. The final 15 months of his sentence was suspended on conditions, including not obtaining any driver’s license for a period of 3 years.

11. The Crown’s suggested sentencing formulation were:
    1. a starting point of 7 years’ imprisonment for each count;
    2. a discount of 2 ½ years in mitigation;
    4. resulting in 4 ½ years’ imprisonment for each count;
    5. 18 months from count 2 to be added to count 1 to be served cumulatively; and
    6. resulting in aggregate sentence of 6 years imprisonment with the final 3 years suspended on conditions.

Pre-sentencing report

12. The Defendant is 37 years old. He was raised by his paternal grandparents in Talau, Vava’u. He moved to Tongatapu to live with his father, step-mother and their children. That domestic arrangement did not work out and he moved out to live with friends.
13. He is married and lives with his family at Sia’atoutai, Tongatapu. They have three children, two boys and one girl.
14. The Defendant completed third form in Vava’u and is a member of the Tonga Bible Baptist Church of Haveluloto. He works for a rubbish collection company at Kolomotu’a and since 2010 he has been to Australia and New Zealand on the seasonal worker scheme.
15. According to the Defendant, he was rushing to their church service on the day of the offending and lost control of the car.
16. Since the offending, the Defendant has returned to work as he is the sole income earner for the family. He has apologised to his wife and she has forgiven him. She also relies on him for emotional support. He is also anxious about driving as a result of the accident.
17. The Defendant is healthy. He is deeply remorseful for his wrongdoing and is said to struggle with anger and depression from the loss of his children.
18. It was reported that despite the seriousness of the offending, the Defendant was in the “low risk” range of re-offending and is willing to accept any punishment. The Probation Officer recommended imprisonment with a partial suspension as appropriate but underlined the need for the Defendant to access to proper counselling.

Defendant’s submission

19. Mr. Vaipulu submitted that this was a tragically unique case. He argued that in this instant alcohol was not involved, there was a lack of aggressive driving towards others and no third-party recklessness – just the “irreversible consequences of a momentary lapse by a grieving parent now burdened with a lifetime of suffering far exceeding any punishment this Court could impose.”
20. It was submitted that the Defendant was already under enduring and immeasurable grief after the loss of his children which no sentence could exceed. Mr. Vaipulu argued, there was no risk to the public and the Defendant has exhibited positive hallmarks of rehabilitation. Therefore, in the interests of justice, mercy and proportionality a fully suspended sentence was appropriate and suggested:

a) a starting point of 4 years imprisonment;

b) to be discounted by 2 years in mitigation; and

c) the final 2 years be fully suspended on conditions.

Considerations

21. 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.”

22. In Gacitua, the Court of Appeal said that:

“sentencings in cases of death caused by dangerous or reckless driving.... as “highly fact-specific” and that much depends on the particular circumstances of the offending.”

23. Here, the offending involved, excessive speed, persistent and inappropriate attempts to overtake other vehicles, ignoring warning from a passenger, driving a vehicle with a faulty tyre and death of more than one person, unmistakeably demonstrating a flagrant disregard for the law and the safety of his passengers or other road users. Hence, a starting point of 6 years’ imprisonment is appropriate for each count.
24. 24. In R v ‘Asa^[1], Whitten LCJ cited Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624, McHugh, Hayne and Callinan JJ observed that a judge sentencing an offender for more than one offence:

“must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well of course, as questions of totality. Cumulation or concurrence is one thing; totality is another thing; and they interact.”

25. Generally, when multiple offending results from the same incident, sentences are more likely than not to be served concurrently. However, to do that here, will not reflect the level of culpability involved nor the degree of harm caused. Notwithstanding that, to make the sentences consecutive would result in a crushing first period of incarceration for the Defendant.
26. Therefore, to reflect the totality of the offending, the loss of two young lives, I deduct 2 years from count 2 and add to count 1, resulting in an aggregate sentence of 8 years’ imprisonment.
27. I note that any impact on the surviving child and the wife was not available and are therefore not addressed in these considerations.
28. For the Defendant’s early guilty plea, lack of criminal convictions, good driving record, shock and remorse for his loss, I consider a deduction of 3 years in mitigation appropriate, resulting in a final sentence of 5 years’ imprisonment.
29. Mr. Vaipulu for the Defendant, vigorously argued in favour of a fully suspended sentence on the premise that there was a lack of aggressive driving or third-party recklessness involved, and his son’s and daughter’s loss was punishment enough.
30. Respectfully, the evidence simply does not support these submissions although it is accepted that the Defendant’s guilt and regret for the fatalities suffered by his family cannot be denied. It is a regrettable set of circumstances with such unfortunate outcome.
31. However, the court must balance its exercise of leniency for good character, grief and guilt in a manner that does not excuse irresponsible behaviour that take lives and injure others^[2].
32. Here, the Defendant has a clean record, cooperated with the police, has demonstrated genuine remorse and has received his wife’s forgiveness, factors that demonstrate that some suspension in his sentence will likely be used positively for his rehabilitation.
33. For those reasons and after considering the offending, the Defendant and his dependents against the need for the court to impose a sentence that will serve to:

a) reflect the seriousness of the offending;

b) reflect the two lives lost;

100. reflect that good character will not indemnify irresponsible conduct that take lives;

d) deter others from driving recklessly causing death or injury to others;

5. reflect the public’s interest in denouncing and deterring this type of reckless behaviour; and
6. not allow subjective circumstances lead to inadequate weight given to the objective circumstance^[3].

I suspend the final 2 years of the sentence for a period of 2 years on conditions.

Result

34. The Defendant is guilty and convicted on two counts of reckless driving causing death and is sentenced to 5 years’ imprisonment.
35. The final 2 years of the sentence is suspended for a period of 2 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;

2. receive counselling inside prison if possible or by arrangement with the Probation officer while in custody;

100. report to the probation office within 48 hours of his release from prison; and

4. not apply or hold a driver’s licence for a period of 2 years from his release.

36. Failure to comply with those conditions may result in the suspension being rescinded and the Defendant will be required to serve the balance of his sentence.
37. In the result, and subject to those conditions and any remissions available under the Prisons Act, the Defendant will be required to serve 3 years in prison.
    

P. Tupou KC
JUDGE

Nuku’alofa: 8 July, 2025

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^[1] [2020] TOSC 72
^[2] Rex v Tonga Leha’uli (CR129/22), citing MacIntyre (1988) 38 Crim R 135 at 139
^[3] Ibid. citing R v Rushby [1977] 1 NSWLR 594 AT 598-599