By Linny Folau

A sleep-deprived, unlicensed driver, who nodded off at the wheel after refusing to hand over the driving to another, will go to prison for reckless driving causing the death of her aunt, a passenger, who was sleeping in the back of her car when it crashed into a power pole in eastern Tongatapu.

Acting Lord Chief Justice Tupou sentenced ‘Ivako Tapa’atu (42), on 30 January at the Supreme Court in Nuku’alofa. This was after she pleaded guilty to the one count in October last year.

The offending was on Saturday, 17 December, 2022, at around 5:00am in the morning, when the defendant, the deceased and their two daughters left the village of Afa for Nuku’alofa.

The Acting LCJ stated that the defendant had been up all night preparing tutu for sale at the Talamahu Market. The defendant is the deceased's niece and generally, they worked together in their crafts and in selling them and that morning, the deceased drove them in her car to Nuku'alofa. The tutu sold quickly and by 7:30am the defendant had sold all of it. When she returned to the car, she found the deceased asleep at the back while their daughters occupied the front seats.

When the defendant woke the deceased, the deceased requested that she drive them back home because she had been playing bingo the night before. The defendant's daughter got into the back seat with the deceased and the deceased’s daughter sat on the front passenger seat alongside the defendant as they drove back to Afa. As they drove through the village of Navutoka on Taufa’ahau Road, the vehicle began to veer off to the side of the road. The deceased's daughter told the defendant to wake her mother up to drive, but the defendant rejected the suggestion and said it was fine and drove on. The deceased’s daughter fell asleep.

When they got to the area between the villages of Manuka and Kolonga, the car veered off the road again waking the deceased’s daughter, who screamed out a warning they were going to crash into the electric pole. That woke the defendant, who, put her foot on the accelerator crashing the car into the pole.

The deceased's daughter went to check on her mother and found her lying between the front and back passenger seat of the car. The defendant's daughter was crying at the back.

Tevita ‘Asake was the first to arrive at the scene and he helped the defendant's daughter out of the car and then pulled the deceased up onto the backseat. Others soon arrived at the scene and helped Mr. ‘Asake put the deceased onto another vehicle, and he rushed her to the hospital.

“Regrettably, she died at 6:50am on Sunday, 18 December, 2022 from significant cardiac contusion that led to severe irregular heartbeats. The doctor that attended to her, reported that the cardiac contusion was caused by blunt force trauma causing a fracture to her sternum and three left ribs.

“The Crown submitted the aggravating factors were: loss of life and reckless driving and put forth that the mitigating features were her early guilty plea, remorse; financial assistance to the deceased's family; reconciliation with the widower and children,” said the judge.

“The defendant is married with three young children of the ages of 12, 8 and 5. The Probation officer reported that she is remorseful and still grieves the loss of her aunt, and she accepts full responsibility the offending and has reconciled with the deceased’s family.”

Meanwhile, the widower Mr Pepe accepted that his wife’s accident and death was accidental and unintentional.

The defendant had a previous conviction (10-years prior) for assault and was fined $100.

The Probation Officer placed the defendant in the range of "very low risk" in terms of re-offending and opined that a fully suspended sentence on conditions, including 100 hours communit y work was appropriate.

“The A/LCJ stated that when the parties appeared for sentencing, she requested they clarify points that were unclear from the material before her. That discussion revealed that the defendant did not have a driver’s licence at the time of the offending, she had no sleep the night prior. The deceased's 20 year-old-child was married, the 18 and 14-year-old were living with other relatives and not the defendant or the widower, except, the 14-year-old, who had recently moved back to live with the widower at Afa.

"I gave counsel the opportunity to address me on this new information. Her counsel (Mrs Vaihu) submitted that it was never intended for the defendant to drive but because the deceased asked her, she obliged and drove the group back. Further, she said that despite the defendant not possessing a driver's licence, she knew how to drive.

Disregarded warning

“I have considered the guidance and approach in lkahihfo and on the evidence, I am satisfied that three aggravating features identified in that case arise here. That is: driving when knowingly deprived of adequate sleep; disregard of the warning of the deceased's daughter to switch driving with her mother.

“It is possible that there was also a "a prolonged, persistent and deliberate course of very bad driving" but apart from the vehicle veering off the road at  Navutoka and the last but fatal departure from the road between Manuka and Kolonga, the evidence on the nature of the defendant’s driving is scant. Perhaps, due to her passengers' slumber. As a result, to make such finding would be speculation on my part.”

Sleep deprived

The A/LCJ stated that nevertheless, the defendant willingly got behind the wheels of a vehicle with three passengers inside to drive a considerable distance without a licence while seriously deprived of sleep."

"When the vehicle veered off the road the first time, she ought to have considered it a form of warning from her own physiology that this was something that will  happen unless she stopped. She failed to stop and further ignored the warning from a passenger. Her conduct on this day, in my view, demonstrates a blatant disregard for the law and the safety of her 3 passengers and other users of the road.”

“The maximum penalty of 15 years imprisonment increased in 2012; clearly indicate the premium placed by Parliament on human life. To take a life by driving a motor vehicle dangerously (in this case recklessly) is to be regarded a crime of some seriousness.

“In  light of the new evidence that was not privy to either party when filing their sentencing submissions and having regard to the seriousness of the offence, the statutory maximum penalty, the comparable sentences and applying the guidelines provided by lkahihifo, the need to show denunciation of this dangerous behaviour and to signal public condemnation by imposing sufficiently severe punishment and deterrence, I find a starting of 6 years' imprisonment appropriate.”

Mitigation

The A/LCJ stated that for her early guilty plea, lack of relevant record, a long period free of any criminal activity and her genuine remorse for the loss of her aunt and the deceased’s children’s loss of their mother, she reduced the starting point by 2-years, resulting in a final sentence of 4-years imprisonment.

“Here, the deceased was a passenger in the vehicle, putting her trust and tragically her life on the defendant  to drive her and their children home safely.

“Most of the principles in Mo'unga v R [1998] TLR 154 at 157, favour the defendant with the exception that she is not young. She has demonstrated genuine remorse and feels that she too has lost not only an aunt but a supporter and co-worker. She has been doing what she can in terms of her money and time to help the deceased's family, demonstrating an inclination towards rehabilitation.

“She also pleaded guilty at the earliest opportunity and cooperated with the police. I have also considered all of the complimentary references in her favour,” the judge stated.

“I have given considerable thought to Mrs. Vaihu's arguments and the Probation Officer's report in favour of a fully suspended. In balancing the seriousness of the offending against the need for the defendant's personal deterrence, general deterrence and the public interest in a sentence that will encourage the rehabilitation of the defendant, I am persuaded that the defendant is entitled to some suspension.

“Therefore, bearing in mind the principles in Mo'unga and those discussed, acknowledging the self-punishment the defendant must feel and the steps she has taken towards rehabilitation, I consider it appropriate to order that the final 3-years of the defendant's sentence be suspended on conditions.”

The defendant was then sentenced to four-years imprisonment with the final three-years suspended on condition that includes: not committing any offence punishable by imprisonment, report  to the probation office within 48-hours of her release from prison; and not apply and/or hold a driver's license for 3-years from her release.

Failure to comply with those conditions may result in the suspension being rescinded and the defendant will be required to serve the balance of her prison  term. The defendant is now serving 12-months in prison.