Iosua v Attorney General [2014] WSCA 5 (2 May 2014)

COURT OF APPEAL OF SAMOA

Iosua v Attorney General [2014] WSCA 5

Case name: Moe Iosua v Attorney General

Citation: [2014] WSCA 5

Decision date: 2 May 2014

Parties: MOE IOSUA (Appellant) and ATTORNEY GENERAL (Respondent)

Hearing date(s): 29 April 2014

File number(s): CA 23/13

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):
Justice Fisher
Justice Hammond
Justice Blanchard

On appeal from: Police v Moe Iosua (Supreme Court matter)

Order:

Representation:
A K Su’a and T Tuioti for appellant
P Chang and L Su’a-Mailo for respondent

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
R v McKelvie
Gacitua v Queen
Anderson v Queen
R v McKelvey
Nepa v Attorney General
Ulugia v Police
Attorney General v Godinet
Attorney General v Matalavea

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: C.A23/13

BETWEEN

MOE IOSUA

Appellant

A N D:

THE ATTORNEY GENERAL

Respondent

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard

Counsel: A K Su’a and T Tuioti for appellant

P Chang and L Su’a-Mailo for respondent

Judgment: 2 May 2014

JUDGMENT OF THE COURT

Introduction

1. The appellant appeals against a sentence imposed in the Supreme Court on 20 November 2013. Having pleaded guilty to two charges of manslaughter, the appellant was sentenced to two concurrent terms of 11 years imprisonment, disqualified from holding or obtaining a drivers licence for a period of 12 years, and disqualified from holding or obtaining a road service licence indefinitely.
   

Factual background

2. The appellant was a 47-year old with 26 years’ experience as the driver of a bus. He drove regularly between Sasina and Salelologa on the island of Savai’i. The route took him through the village of Lago. At Lago the bus had to ford a stream which runs down from the hills, across the main highway, and into the ocean beyond. The appellant had crossed the ford on countless occasions. Doubtless he did so under varying weather conditions.
3. On Saturday, 6 July 2013, the appellant set off in the bus from Sasina bound for Salelologa. The object was to link up with the ferry which was due to sail from Salelologa at 2pm. As the bus passed through a number of villages it filled with passengers. The passengers were men, women and children with ages ranging from 4 years to 74. Among those on board were a five-year old girl, named Filomena Puataunofo Sakaio, and an eleven-year old girl named Maria Aiaraisa.
4. The bus reached the village of Lago at 1.10pm. It was pouring with rain. The stream was flooded. Other vehicles had stopped on either side of the ford. A bus travelling from Salelologa had turned around when it reached the ford, the driver deciding that it was unsafe to cross. A passenger had alighted from that bus.
5. As the appellant’s bus approached the ford, the passenger from the other bus waved to signal that it was not safe to cross. By that stage the depth of water running through the ford was above knee height. Passengers at the front part of the appellant’s bus also warned him to proceed no further. They said that the bus would not make it through the flood and pointed out that the lives of the passengers were in his hands.
6. The appellant did not take the advice offered. He had 26 years experience as a bus driver and knew the ford well. He considered it to be safe to cross. He edged the bus towards the water slowly, reversed back to make a run at it, and then came forward again into the water.
7. As the bus made its way across the flood, the water began to seep into it. Part way across, the front of the bus was pushed sideways by the pressure of the water. The whole bus was then washed into the flood, tipping onto its left side. One of the male passengers was able to climb out of a window but the rest were trapped inside.
8. The bus rolled over three times. Inside the bus the passengers fell on each other, hit various objects, and swallowed water and petrol. On the third roll of the bus the roof came off. This allowed the passengers to escape into the surrounding water.
9. Those who had been in the bus drifted to various parts of the rivermouth. Some were rescued by villagers who had gone to the sea wall area and helped lift them out. Others were swept out to sea. Fortunately, it was a low tide and nearly all were able to find depths shallow enough to stand. They waited there until they were rescued. Tragically, Filomena and Maria drowned. Other passengers suffered a variety of injuries.
10. The appellant was charged with manslaughter and reckless driving causing death to which he pleaded not guilty. On the day of the proposed trial he pleaded guilty to two charges of manslaughter and the remaining charges were withdrawn.

Sentencing in the Supreme Court

11. In the Supreme Court Slicer J referred to the English sentencing guidelines quoted in Archbold (2013 ed) and to a series of Samoan, New Zealand and Australian sentences for motor manslaughter and dangerous driving causing death. From those sources he rightly noted that recognised aggravating factors included more than one death, serious injury to others not killed, disregard of warnings and irresponsible behaviour such as failing to stop. This led him to the view that in cases of that kind 10 to 14 years imprisonment would be an appropriate starting point subject to mitigation.
12. The Judge pointed out that in the present case the appellant had risked the lives of many who had been placed in his trust. He considered that this was not a momentary lapse of judgment. The appellant could see that other vehicles had avoided the risk. He adopted a starting point of 12 years imprisonment before mitigation.
13. In mitigation the Judge noted that the appellant was a first offender aged 47 with two children. He considered that the appellant had not offered ifoga. He indicated that the discount for the guilty plea was less because it was a recognition of reality and acceptance of an overwhelming case against him. The Judge reduced the sentence from 12 to 11 years for the early plea.
14. The Judge considered that the period for disqualification from driving should equate to the starting point of 12 years imprisonment. He noted that s 39A of the Road Traffic Ordinance 1960 (negligent driving causing death) provided for a maximum penalty of five years imprisonment but noted that s 33 did not specify any specific period of disqualification, whether as a minimum or maximum. Section 33(b) provided for such period as the Court thought fit.
15. As to a public vehicle licence the Judge noted that in R v McKelvie CA 372/97 (25 November 1997) the New Zealand Court of Appeal imposed a licence disqualification indefinitely. The Judge regarded that as appropriate for the road service licence disqualification in this case.

Erroneous starting point

16. In this Court Mr Su’a submitted that the Judge had adopted the wrong starting point in assuming 10 to 14 years to be appropriate for cases of this kind. He also submitted that 12 years was excessive for the starting point in this particular case.
17. The maximum sentence for manslaughter is life imprisonment. It is notorious that the nature of manslaughter is so variable that no clear guidelines can be adopted. Even for the starting point each case must be considered carefully. The focus lies on the particular level of culpability displayed by the offender as well as its consequences.
18. We accept that it can sometimes be useful to try to categorise a manslaughter case in general terms before making adjustments up or down for the particular characteristics of the case. Categorisation of this kind has its limits, however, given that the distinction between the general category of manslaughter, and the aggravating circumstances in the particular case, can be arbitrary.
19. Manslaughter is essentially unlawful conduct with death as an unintended consequence. In the so-called “motor manslaughter” cases to which we were referred, the unlawful conduct involved breaches of the road code, whether through speeding, intoxication, reckless or careless driving or some other form of sub-standard driving.
20. Cases like the present one do not naturally fall into the general run of motor manslaughter cases because the culpability did not consist of sub-standard driving in any usual sense.
21. The unlawful conduct here was essentially the failure to take reasonable precautions to avoid danger while having control of a thing which, in the absence of precaution or care, may endanger human life contrary to s 88 of the Crimes Act 2013. That form of unlawfulness was rightly selected by the prosecution in this case to express the higher standard of care expected of bus-drivers, marine skippers, airline pilots, and other operators of public transport, who hold the lives of members of the public in their hands. In that situation there is a unique obligation to safeguard others. And if an obligation of that kind is not observed, it is immaterial whether the failure occurs while driving along a road or in some other setting.
22. That is the context in which the culpability of this appellant’s conduct is to be considered. He made a single, unplanned, error of judgment, albeit a shocking one with tragic consequences. The error of judgment did not involve an episode of bad driving in any usual sense. It was the formation of the opinion that the bus could safely drive through the water that he was presented with.
23. Categorisation of the appellant’s conduct as fundamentally a single error of judgment is not to belittle three features which made it a shocking one.
24. The first was the foreseeable seriousness of the consequences if his judgment proved to be astray. The ford was a concrete carriageway raised above the level of the riverbed. If a miscalculation were made, and the bus were to be swept off the carriageway, it was entirely predictable that the bus and its occupants would be thrown into the water with far-reaching consequences.
25. The second was that the appellant was not the only one in the bus. He failed to put to the forefront of his mind the fact that it was not just his life that he was putting at risk. He had the lives of many others in his hands. This was a busload of people, including children and the elderly, who depended on him to keep them safe.
26. The third was that he went ahead in defiance of express warnings from others. The drivers of other vehicles obviously thought they could not get through. There was signalling from the man on the far side of the river. There were the pleas of his own passengers. There was an arrogance in the priority given to his opinion over the warnings and examples of others.
27. That is the background against which other manslaughter guidelines and sentences fall for consideration.
    

Other manslaughter sentences

28. The sentencing authorities cited to us were confined to the so-called “motor manslaughter” cases and cases involving intentional assaults with unintended fatal consequences.
29. The motor manslaughter cases are concerned with charges of careless or reckless driving causing death or manslaughter charges where deaths have been caused by bad driving. For this category we were referred to authorities drawn from England and New Zealand.
30. For the approach in England, the Sentencing Guidelines Council now divides cases of this kind into three levels of seriousness. The most serious level, level 1, involves a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and a disregard for the great danger to others. Examples are a prolonged, persistent and deliberate course of bad driving, consumption of substantial alcohol or a combination of other seriously aggravating factors. For this category the Guidelines propose a starting point of 8 years with a sentencing range of 7 to 14 years.
31. In level 2 of seriousness, the same English Guidelines include driving that created a substantial risk of danger including greatly excessive speed, racing or competitive driving and driving while impaired by alcohol or a combination of other aggravating factors. For this category the Guidelines propose a starting point of 5 years with a sentencing range of 4 to 7 years.
32. For the approach in New Zealand we were referred to a series of authorities showing motor manslaughter starting points. These included Gacitua v Queen [2013] NZCA 234 (5 years reduced to 3 for mitigating factors), Anderson v Queen [2010] NZCA 339 (7 years reduced to 4 years 10 months for mitigating factors) and R v McKelvey CA 372/97 (9 years reduced to 8 years for mitigating factors).
33. In an extremely broad way it might be said that the sentences imposed in recent New Zealand cases are not inconsistent with the approach taken under the English Guidelines. Although individual cases differ widely, it would not be unusual to find a starting point of five years imprisonment, and in very serious cases eight years or more, in both countries.
34. Although it is helpful to have that background of motor manslaughter authorities, the analogy with the present case is not a close one. Serious cases of motor manslaughter usually involve a deliberate course of bad driving, repeated and serious traffic violations during a lengthy journey, the presence of alcohol, competitive driving or persistence in driving after apprehension. None of those factors were present in the case now under appeal. On the other hand the present appellant had the special responsibility of many other people in his vehicle and he defied the warnings of others. Neither circumstance can be found in the motor manslaughter precedents to which we have referred.
35. The other source cited to us involved manslaughter sentences for intentional assault with unintended fatal consequences. Starting points adopted in those cases have included Nepa v Attorney General [2010] WSCA 1 (8 years generally appropriate but in that case 6.5 years reduced to 4 for mitigating factors); Ulugia v Police [2010] WSCA 15 (4.5 years reduced on appeal to 3 for disparity reasons); and Attorney General v Godinet [2011] WSCA 6 (10 years reduced for mitigation reasons to 7 years 2 months for one offender and to 5 years 8 months for the other). Again for this kind of case the circumstances vary greatly but it would not be unusual to find the adoption of five to ten years as the starting point.
36. Sentencing precedents for intentional assault with unintended fatal consequences is another possible reference point in manslaughter cases in general but the analogy is even more distant for the purposes of the present case. In the present case there is no equivalent to deliberate violence inflicted on the victim. On the other hand there was a unique level of responsibility due to control of a vehicle used for public transport.

The starting point in the present case

37. We are unable to accept the Judge’s view that for cases of this kind 10 to 14 years imprisonment was an appropriate starting point. For reasons we have attempted to show, the general run of motor manslaughter cases are only a distant analogy. And even if the analogy is adopted, 10 to 14 years is a long way above the median starting point for such cases.
38. Nor can we accept that 12 years was the right starting point in this case. Certainly the Judge appears to have already factored in all aggravating factors before arriving at his figure. But we do not think that it can be reconciled with the sentencing precedents to which we were referred, however distant the analogy. The starting point had to be lower.
39. Different meanings can be attached to “starting point” for sentencing purposes. The way the Judge approached the matter was to have a high starting point which included all aggravating considerations. The other approach is to have a lower starting point to reflect the core nature of the offence and then to increase it for the aggravating factors in the instant case. It does not matter which approach is taken so long as the end result is the same.
40. One way of approaching the present case is to adopt a period of imprisonment as a starting point confined to the core offence of driving a public transport vehicle full of passengers into a flooded river without adequate regard for their safety. We think that in the particular circumstances of this case six years is an appropriate figure to adopt for that purpose. It cannot be pretended that this is a matter of fine analysis. It is a robust assessment based on the analogies with which we were presented and our assessment of the special responsibilities placed on those in control of a public transport vehicle.
41. That six years must then be adjusted upwards having regard to aggravating factors. In this case they are as follows:

(a) The extreme nature of the risk given the configuration of this particular carriageway, the level of this particular flooding and the foreseeable consequences if this particular bus were swept off the carriageway;

(b) The number and age-range of the passengers whose lives were put at risk;

(c) The defiance of warnings given by bystanders and passengers; and

(d) The consequence that more than one death, and numerous injuries to other passengers, occurred.

42. In our view the increased figure before mitigating factors should be eight years six months. That remains subject to a downward adjustment for mitigation.

Mitigating factors

43. The Judge deducted one year for the guilty plea, this being the only deduction he made for mitigating factors. Mr Su’a submitted that he failed to give adequate recognition to the appellant’s contribution to ifoga, his remorse, and his status as a first offender. He also submitted that 25 per cent would have been an appropriate deduction for the guilty plea.
44. In this case the only ifoga carried out was effected by the appellant’s employer, not the appellant personally. The ifoga was accepted by the families of both deceased but one was aggrieved that the appellant had failed to make ifoga personally.
45. Mr Su’a submitted that ifoga should be regarded as an act to be carried out by the offender’s family and that for present purposes an offender’s employer should be regarded as part of his family.
46. We have been much assisted by the materials provided by Ms Chang on the subject of ifoga. It is true that ifoga is essentially a group activity in the sense that one group apologises for the conduct of one of its members to another offended group. However ifoga requires a public act of self-humiliation as well as a gift. The self-humiliation involves contrition, submission and apology – see further Cluny and La’avasa MacPherson, The Ifoga: The Exchange Value of Social Honour in Samoa (2005) 114 Journal of the Polynesian Society 109. It cannot be said that ifoga effected by one’s employer could fulfil all of those requirements: Attorney General v Matalavea, above at [48]. The appellant cannot claim full credit for ifoga in the present case.
47. On the other hand we have no reason to doubt the appellant’s remorse. His remorse is clearly recorded in the pre-sentence report. One of the two families of the deceased was satisfied with the ifoga and forgives the appellant. The other is understandably upset that the appellant has made no personal apology to them but did accept the ifoga offered by the employer.
48. We accept that a 25 percent deduction will often be appropriate for an early guilty plea. However in this case the plea was entered at the last possible moment and in the face of overwhelming evidence.
49. Taking into account the guilty plea, the appellant’s good character, his undoubted remorse, and his blameless driving record until now, we think that 18 months should be deducted for mitigating factors. The result is a net period of seven years imprisonment.
50. The appellant was disqualified from holding or obtaining a drivers licence for a period of 12 years and disqualified from holding or obtaining a road service licence indefinitely. Mr Su’a submitted that the latter was excessive but had overlooked the fact that it is subject to a discretionary power to grant such a licence at some point. We make no comment on whether the appellant should ever be granted a road service licence but are satisfied that the indefinite disqualification was appropriate.

Result

51. The appeal against sentence is allowed.
52. The sentences of imprisonment for eleven years are quashed. In their place the appellant is sentenced to imprisonment for concurrent terms of seven years on each of the two charges of manslaughter.
53. The orders for disqualification from holding or obtaining a drivers licence for a period of 12 years, and disqualification from holding or obtaining a road service licence indefinitely, will stand.

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard