Reckless driving leading to death is a crime that sadly remains all too prevalent in Tonga and, in this case, resulted in the death of a 21-months old toddler, the Lord Chief Justice stressed in sentencing a 27-year-old driver to prison. 

On 27 January 2023 Lord Chief Justice Whitten KC sentenced Tonga Leha’uli to two and a half years in prison.

The accused pleaded guilty to reckless driving causing death of Tevita Samita Tu’alau (21 months) on 14 December, 2022.

The offending was on August 2022, at approximately 5:00 p.m., Tevita and members of his family returned home from Nuku'alofa. Their home is on Taufa'ahau Road facing the ocean. Inside the house, the adults talked while Tevita and other children played.

The court was told that at one point, Tevita went outside to the front of the house directly in front of the main road. Across the road at the seaside, his uncles, Sione and Funaki Fifita were pulling in their boat.

At that moment, the defendant was driving a dual cab truck with three passengers heading towards Makaunga to drop off his sister and her neighbour. As the truck approached, Tevita was standing on the side of the road and about to step out onto it when his Uncle Sione called out to him to stop because there was a vehicle coming.

The defendant's vehicle then struck the child. The force of the impact flung his body about five metres before the truck then ran over him. The Defendant stopped his truck some distance from where the collision took place.

Funaki Fifita approached the Defendant and asked him where he was looking and why he was driving so fast.

The defendant apologised and stated that he did not see the child.

Tevita Snr rushed his son to the hospital where he received emergency treatment, and his condition was initially stabilised. However, later that night, his condition, marked by head injury, hypoxia (low oxygen levels) and fractures to both his legs, rapidly deteriorated.

“Tevita Samita Tu’alau, otherwise known as Mita Kiti, sadly died later sometime after mid-night.

“The defendant was devastated and filled with guilt, he and his family apologized and went as far as donating money to the victim’s family and helping with funeral preparations, financially and supplying food.

“The victim’s family eventually forgave the defendant and his family because of how sincere and genuine the defendant was with his apology and his feelings about the situation. He did not see to offer any excuses rather, he expressed guilt, blame and regret.”

The probation officer described the defendant as a ‘good citizen’. He had letters of support from his pastor and the town officer.

Reckless

The Lord Chief Justice was satisfied that the defendant was driving in a southerly direction. That finding is also consistent with universal accounts of the suddenness between seeing the child on the edge of the roadway and the collision.

He said the second issue was the speed at which the Defendant was driving immediately

“After the collision, the uncles described it as "high speed" and "60 to 70" respectively. The defendant told police it was approximately 48 km/hr.

“The circumstances in which a certain cause of the collision was the defendant not paying proper attention to the road ahead where, by all accounts, the child had approached the road from his open front yard and stood at the edge, it is very hard to agree that the defendant at the same time was looking at his speedometer to record his speed.

“A following vehicle cannot automatically expect to maintain the speed limit and drive right through or around the accident site without due regard to the safety of others and the risks posed by the situation. That will normally require a reasonable and prudent driver to exercise greater care including by reducing his speed.

“Similarly, where a very young child comes out near the edge of a roadway, a motorist in the position of the defendant is reasonably expected to exercise caution, which at the very least will usually require reducing his speed and braking heavily, if necessary; and/or, if safe to do so, to steer closer to the centre of the carriageway. That, of course, assumes the driver is keeping a proper look out and sees the child at a distance which permits those precautions to be taken in a safe manner.

“Here, the defendant took none of those measures. On the available evidence, I do not accept that the child mysteriously and suddenly appeared from nowhere so that the defendant genuinely had no reasonable opportunity to take evasive action. Had the Defendant been paying attention and keeping a proper lookout, he could have taken any of the above measures to avoid the collision. That he did not do so is also consistent with him travelling at excessive speed in the circumstances.”

“Whether the child stepped out suddenly into the path of the truck or whether he was standing on the edge of the roadway when the truck hit him…in either case, the manner of the defendant's driving, in those circumstances, was dangerous.

“Ultimately, on those findings and observations, I am satisfied that the defendant's plea of guilty is legally sound,” stated the Lord Chief Justice.

He considered the appropriate starting point to be four years imprisonment.

“For the Defendant's early guilty plea, good previous record, demonstrated remorse, substantial compensation to the victim's family and reconciliation with them, I reduce the starting point by 18 months, resulting in a sentence of two years (or 30 months).”

The defendant was then sentenced to two and a half years in prison but with the final 18 months of the sentence was suspended for two-years on condition

 He is disqualified from holding or applying for a driver's licence for three-years.