Vitalini Liku’ohihifo (29) was sentenced to one-year nine-months imprisonment, which was fully suspended for reckless driving that caused the death of a male pedestrian in September 2018 in Nualei.

Hon Mr Justice Cato during sentencing on June 14 at the Supreme Court said, the accused pleaded guilty to the one count at an early opportunity.

The Court heard on the early morning of September 8, 2018 at Nualei, the accused drove a vehicle in a speed and manner, which was dangerous to the public and did not pay proper care and attention to all circumstances when he was driving at high speed along Taufa’ahau Road in an easterly direction.

He overtook two vehicles and hit Piukala Laumana causing injuries that resulted in his death.

The judge said this matter originally involved a charge of causing death, while under the influence of alcohol in October 2018 but the charge was later withdrawn and the Crown proceeded on the present charge.

Facts revealed that the accused had been drinking alcohol with friends for several hours at bars in Nuku'alofa and was returning to his home in Kolonga. 

The accused admitted to approaching the intersection turning left to Folaha, he was driving an approximate speed of 50-60 kilometres per hour, and attempted to overtake two vehicles that were in front of him by driving on the right side of the road, still in an easterly direction.

At this point, the accused said the deceased crossed from the right side of the road and was standing at about the middle of the road, when he hit him with his motor vehicle.

The defense counsel submitted that his client had not been travelling at excessive speed and nor according to his client, had his visibility as to any oncoming cars been impaired. 

The accused having little opportunity to avoid the collision and that in all likelihood, the deceased, who may have been affected by alcohol had stepped into the road in front of the accused car as it was being driven on the right hand side of the road giving him little opportunity to avoid the collision, said the defense counsel.

Meanwhile, the judge said this was not the first case he has encountered in Tonga where pedestrians under the influence of alcohol have walked out into the road and been hit by passing vehicles leading to an acquittal of the driver on a charge like this.

He was then informed that the area where the collision occurred was a 70-kph area so the accused could not be said to be travelling at a speed, which was unlawful. 

The Crown submitted, however, the accused had broken Regulation 20 of the Traffic Regulations states that, 'no driver shall overtake or attempt to pass any vehicle proceeding in the same direction in the following circumstances; at an intersection... .

"In my view, it would have been open to the accused to have defended the charge on the basis that the deceased had stepped out suddenly in front of his vehicle and he had no opportunity of avoiding the accident which raised a defence of an inevitable accident for which the defendant was not causatively liable."

He said, this which would no doubt have resulted in evidence being called on whether the accused possible intoxication and conduct played any significant part in the events and evidence will also be led as to the part the victim played.

The judge was satisfied that in withdrawing the original charge, the prosecution could not prove that the accused had consumed excess alcohol and approached this sentence on that basis. 

He was also satisfied that the accused was overtaking two vehicles at a considerable, although not excessive speed, at night in an area, where on one side of the road there was housing, meaning there was a real risk that an accident might occur.

"This is not a case where to my mind, it could be clearly established that in the circumstances, the accused did not drive recklessly or in a manner dangerous to the public. In pleading guilty, he has saved the prosecution having to prove the case."

Suspension

Hon. Mr Justice Cato then acceded to the defence counsel's submission that the accused sentence should be one that is fully suspended. 

“This is rather exceptional, but in in my view, appropriate in this case for the reasons I have given. I consider that he has gone a long way already to rehabilitate himself by the actions and the attitude he has shown. I take into account, in this regard also that he has been remanded in custody pending sentence since May,” he said.

The conditions of suspension are that the accused must carry out 45 hours of community work, alcohol abstinence and complete a course on alcohol abuse.

The accused was revealed to have apologized to the victim's family, which had been accepted.

"Many a good career and reputation have floundered as a consequence of alcohol abuse, and he would do well to reflect upon this."

However, the judge warned that a failure to abide by these conditions may mean his return to prison to complete his sentence.