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R v Kauvaka [2025] TOSC 17; CR 161 of 2024 (18 March 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA REGISTRY
CR 161 of 2024

REX
-v-
Petelo Luka KAUVAKA

SENTENCING REMARKS

BEFORE: JUSTICE TUPOU KC
Appearances: Mr A. Fisi’iahi for the Prosecution
Defendant in Person
Date: 18 March, 2024

The Proceedings

1. On 20 January, 2025, the Defendant pleaded guilty to one count of reckless driving causing death, contrary to section 27(5) of the Traffic Act.

The Offending

2. At around 7am on or about 6 June 2024, the Defendant, the deceased, his wife and his father were travelling to work from Lavengatonga. The intention was to drop off the deceased’s wife at Veitongo before they continued to their work place. They all worked for South Seas Constructions Ltd, located at the Weslyan Church residence on the Railway Road Kolofoóu.
   
3. The defendant was driving and the deceased was seated directly behind him. The deceased father was seated on the front passenger seat and the deceased’s wife was seated at the back behind her father-in-law.
   
4. The defendant was driving at excessive speed. They overtook a vehicle at the intersection of the road from Lavengatonga and the road to the airport. The deceased’s wife whispered to her husband to ask the defendant to slow down. The deceased told her that was the usual speed they travelled at to work. His wife was scared and closed her eyes for most of the way.
   
5. At the bush area between Pelehake and Malapo, they overtook another car and ended up on the grass to the right side of the road. Despite his attempts to get back onto the road, the defendant lost control of the car, swerving to the right side and hitting a coconut tree. The impact flipped the car landing on its left side.
   
6. The defendant crawled out through his window and the deceased father followed after him. The deceased’s wife was stuck as she was seated on the left side of the car. Her husband, the deceased was on top of her. The deceased told her he could not move and his hands and feet were numb.
   
7. Passersby were able to remove the deceased from the vehicle. Then they pushed the vehicle upright before the deceased’s wife could be rescued. The deceased was laid down on the grass. He expressed that his spinal cord may have been damaged and he was numb and could not feel his legs.
   
8. The police arrived shortly after and transported the deceased to the hospital. Unfortunately, he succumbed to his injuries and died on 8 June, 2024.
   
9. The defendant was arrested and interviewed on 12 June, 2024. He told the police he was driving over 70kmph when he was overtaking the vehicle and was unable to control and bring the vehicle back onto the road causing the accident.
   
10. Dr. Ísileli Tuípulotu reported the deceased’s cause of death as respiratory failure secondary to transection of the spinal cord injury where the phrenic nerve is located.

Crown’s submissions

11. The Crown submitted the aggravating features of the offending were:
    1. the seriousness of the offending;
    2. driving at excessive speed, with 3 other passengers inside the vehicle;
    100. overtaking of another vehicle at excessive speed;
    4. losing control causing the vehicle to flip;
    5. causing the death of Mr. Tevita ‘Afa Fasi; and
    6. driving without a driver’s licence.
       
12. The Crown submitted the following as mitigating features, the defendant;
    1. is a first-time offender;
    2. cooperated with the Police;
    100. pleaded guilty at first available opportunity;
    4. is remorseful; and
    5. apologized to the family.
       
13. The Crown referred to the following comparable sentences in the case of:
    1. R v Leha’uli [2023] TOSC 5- the defendant pleaded guilty to a charge of reckless driving causing the death of a 21 month old toddler. He had no previous convictions and presented an apology and compensation to the family of the toddler. A starting point of 4 years was set and reduced by 18 months resulting in a sentence of 2 ½ years imprisonment with the final 18 months suspended for 2 years on conditions.
    2. Ikahihifo v R, AC 14 of 2021 (CR304/2020) – the appellant had been drinking alcohol with friends to the point of being intoxicated. He then drove his vehicle with a passenger from Hihifo to Nukuálofa. He was driving at a speed between 80 and 100 km/h when he overtook a vehicle in front of him. In the process, he collided head-on with an oncoming vehicle causing the death of the driver of that vehicle and serious injuries to the Appellant’s passenger. For the dangerous driving causing death, Niu J adopted a starting point of 9 years. It was reduced to 7 ½ years imprisonment in mitigation without suspension. Ikahihifo appealed. The Court of Appeal adopted the approach of the New Zealand Court of Appeal in Gacitua v R [2013]NZCA 234, and allowed the appeal and resentenced the Appellant. A starting point of 8 years imprisonment was fixed and reduced to 5 years imprisonment in mitigation with the final 2 years suspended on conditions.
    100. R v Mofoa’aeata Latu CR 92/2018 – the defendant had been drinking alcohol with others when he drove with 4 passengers to obtain more alcohol. On their return the defendant was driving at excessive speed and lost control of the vehicle, hitting a lamp post on its right side, flipping onto its left side, skidded onto a coconut tree which flipped the car back into position. One passenger was thrown out of the car who died a few days later while another suffered a fractured cervical spine and soft tissue injuries. He spent 6 weeks in hospital.

The starting point was 5 years imprisonment with an added 6 months for driving without a licence. It was reduced in mitigation to a final sentence of 3 years and 3 months imprisonment with the final 15 months suspended on conditions.

14. Here, the Crown submitted the following sentencing formulation:
    1. Starting Point- 5-7 years imprisonment
    2. Mitigation- 2 years deduction resulting in 3-5 years imprisonment
    100. Suspension- eligible for part of his sentence to be suspended
    4. Final Sentence- 5 years imprisonment, with the final 2 years to be suspended, conditions applied.
       

Defendant’s submissions

15. Ms. Aleamotu’a appeared this morning and advised the court that she had nothing to add on behalf of her client.
    

Pre-sentencing report

16. Mr. Petelo Luka Kauvaka is 28 years of age. He is the youngest of 4 children but was adopted and raised by his adoptive parents at Lavengatonga.
    
17. He attended Tailulu College and dropped out at Form 4.
    
18. He was married to Mele Latu but has since separated from her. They had no children. He is currently in a de facto relationship with one Losaline Palu and has a son with her.
    
19. He was a fisherman by trade until in 2019 when he joined the seasonal work scheme in Australia. In 2024, he joined the South Seas Construction company but has lost that job due to this offending.
    
20. He is a member of the Free Wesleyan Church of Tonga in Lavengatonga and was spoken highly of for his good character and help in the community. He is said not to have ever caused any problem or disturbance at Lavengatonga.
    
21. It was reported that the defendant had apologised to the family of the deceased and was accepted. He was described as remorseful and at low risk of re-offending. The officer made a note that the defendant lied about being married to his de facto and doubted his reliability.
    
22. As a result, the probation officer recommended a partly suspended sentence on conditions.
    

Starting Point

23. The maximum statutory penalty for reckless driving causing death is 15 years imprisonment.
    
24. In Ikahihifo, the court of appeal reviewed the approach and relevant considerations when sentencing this type of offending by adopting the guidelines and approach in Gacitua for measuring culpability by reference to the following aggravating and mitigating factors:
    1. Aggravating factors, in four categories:
       1. 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)

(1) Driving while the driver's attention is avoidably distracted, eg 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 knowing deprived of adequate sleep or rest.

(i) Driving a poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns.

2. 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.

3. Outcome of offence

(1) 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).

4. 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.

2. 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.

25. The Court of Appeal then identified starting points for sentences in four categories:

(a) In cases in where no aggravating features are present, a starting point of between 12 and 18 months.

(b) An offence involving a momentary dangerous error of judgment or a short period of bad driving, aggravated by a habitually unacceptable standard of driving (factors (j) or (k)), by the death of more than one victim or serious injury to other victims (factors (l) and (m)) or by irresponsible behaviour at the time of the offence (factors (n) to (p)), a starting point of two to three years.

(c) When the standard of driving is more highly dangerous (as indicated, for example, by the presence of one or two of factors (a) to (i), a starting point of four to five years.

(d) Cases involving extremely high level of culpability involving three or more of the aggravating factors (a) to (i), a starting point of six years imprisonment.

26. Here the defendant’s driving was:
    1. at greatly excessive speed (b);
    2. a persistent and deliberate course of very bad driving (d), instilling fear in the deceased’s wife so much that she closed her eyes for most of the way;
    100. aggressive with persistent inappropriate attempts to take over (e);
         
27. A further aggravating feature is, he did not have a driver’s licence.
    
28. By application of the guidelines and finding the presence of 3 aggravating factors from a) to i), I set a starting point of 6 years imprisonment lifted by 6 months for driving without a licence.
    
29. In mitigation, the defendant is young, has no previous conviction and pleaded guilty at the first opportunity and I accede to the Crown’s submission and reduce the starting point by 2 years resulting in a final sentence of 4 years and 6 months imprisonment.
30. It is accepted he has apologized to the family of the deceased. The deceased is the defendant’s nephew. Bearing in mind the principles in Mo’unga, the defendant’s circumstances and as accepted by the Crown and Probation, the defendant is entitled to have part of his sentence suspended. I accordingly, suspend the final 24 months of his sentence on conditions.
    

Result

31. The defendant is convicted of reckless driving causing death and is sentenced to 4 years and 6 months imprisonment.
    
32. The final 2 years of his sentence is suspended for a period of 3 years from the Defendant’s release from prison on condition that during the said suspension period, he is to:
    1. Not commit any offence punishable by imprisonment; and
    2. Report to the probation office within 48 hours of his release from prison and thereafter as required by his probation officer.
33. 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.
    
34. Subject to compliance with the above conditions and any remissions available under the Prison’s Act, the Defendant will be required to serve 2 years and 6 months in prison.
    
35. The defendant is disqualified from holding or applying for a driver’s licence for a period of 1 year from the date of his release from prison.
    

P. Tupou KC
Nuku’alofa: 18 March, 2025 J U D G E