By Linny Folau
Manase Funaki (37) is serving three years imprisonment for reckless driving that caused the deaths of his two children aged nine and 12 years. His vehicle rolled off Hihifo Road and hit a fence, in January this year.
The court heard that on 22 January, In an attempt to overtake a vehicle at excessive speed, he lost control of the vehicle which had defective tyres and veered off the road. The crash caused the deaths of Salesi Funaki (12) and Dorothy Funaki (9), who were passengers in the vehicle, at around 7:00pm.
Justice Tupou sentenced him on 8 July at the Supreme Court in Nuku’alofa, after he pleaded guilty to the charge in May.
The defendant's wife was also in the vehicle as they left their home at Sia'atoutai heading eastward for church in Havelu. He initially attempted to overtake a white vehicle but was unable because the white vehicle accelerated. The defendant’s wife told him to slow down but he 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 in Hofoa. The impacts caused the deaths, Dr Tangitau confired that Salesi and Dorothy showed no signs of life upon arrival 9at the hospital), stated the judge.
The defendant was arrested and during his interview with Police admitted to driving 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.
The Crown submitted that the aggravating features of the offending was the seriousness of the offence and the deaths of the two children.
Loss of children
The pre-sentencing report stated that he moved to Tongatapu from Vavau. He married and lived with his family in Sia’atoutai with three children, two boys and one girl. He worked for a rubbish collection company in Kolomotu’a and since 2010 had been to Australia and New Zealand on the seasonal worker scheme. According to the defendant, he was rushing to their church service on the day of the offending and lost control of the vehicle. Since the offending, he had returned to work as he was the sole income earner for the family.
“He was also reported to have apologised to his wife who had forgiven him. She also relies on him for emotional support. At the same time, he is anxious about driving as a result of the accident and is deeply remorseful for his wrongdoing and is said to struggle with anger and depression from the loss of his children. 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,” stated the report.
The Probation Officer recommended imprisonment with a partial suspension as appropriate but underlined the need for the defendant to access to proper counselling.
At the same time, the defendant's counsel, Mr Vaipulu submitted that this was a tragically unique case, arguing that in this instant alcohol was not involved, there was a lack of aggressive driving toward others and no third-party recklessness.
Counsel also 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 starting point of four years imprisonment; to be discounted by two years in mitigation; and the final two years be fully suspended on conditions.
Flagrant disregard for law and safety
The judge pointed out that the offending here involved, “excessive speed, persistent and inappropriate attempts to overtake other vehicles, ignoring a warning from a passenger, driving a vehicle with a faulty tyre and death of more than one person, unmistakably demonstrating a flagrant disregard for the law and the safety of his passengers or other road users.”
“Hence, a starting point of six years’ imprisonment is appropriate for each countgenerally, 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.”
To reflect the totality of the offending, the loss of two young lives, the judge deducted two years from count two and add to count one, resulting in an aggregate sentence of eight years’ imprisonment.
The judge stated that any impact on the surviving child and the wife was not available and are therefore not addressed in these considerations. For the defendant’s early guilty plea, lack of criminal convictions, good driving record, shock and remorse for his loss, he considered a deduction of three years in mitigation appropriate, resulting in a final sentence of five years imprisonment.
The judge stated that the defendant’s counsel also 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.
"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. 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.
“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. 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: reflect the seriousness of the offending; reflect the two lives lost."
The defendant was then sentenced to five years’ imprisonment with the final two years suspended for two years, on conditions.This includes not committing any offence punishable by imprisonment, receive counselling inside prison if possible or by arrangement with the Probation officer and must not apply or hold a driver’s licence for two years from his release, among others.
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, stated the judge.
The defendant is now serving three years in prison.
