Police v Masoe [2016] WSDC 48 (18 November 2016)

DISTRICT COURT OF SAMOA
Police v Masoe [2016] WSDC 48

Case name:	Police v Masoe
Citation:	[2016] WSDC 48
Sentencing:	18 November 2016
Parties:	POLICE v FAALEKUATA TUITAMAI MASOE, male of Asau Savaii and Tufuiopa.
Hearing date(s):
File number(s):	D4074/16, D4075/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	Convicted and sentenced as follows: In respect of the charge of driving while the proportion of alcohol in your breath was 84 micrograms, you are fined $660.00 to be paid within 7 days, in default, 7 weeks imprisonment; and In respect of the charge of dangerous driving, you are convicted and sentenced to 8 months supervision on condition (i) you carry out 80 hours of community work and (ii) you complete an 8 week alcohol program as directed by the Probation Service. In terms of your driver’s licence, taking into account your employment and family matters for a driver’s licence, the period of disqualification of your driver’s licence is reduced to 8 months from today. You are therefore disqualified from holding or obtaining a drivers licence for 8 months.
Representation:	Sgt. Stanley for Police Prosecution Defendant in person
Catchwords:	Dangerous Driving and Influence of Alcohol in Breath
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 s.39(1) Road Traffic Breatherlyser Act2009 s.40(1).
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

FAALEKUATA TUITAMAI MASOE, male of Asau Savaii and Tufuiopa
Defendant

Counsel:
Sgt. Stanley for Police Prosecution
Defendant in person

Sentence: 18 November 2016

SENTENCING DECISION OF JUDGE CLARKE

The Charges

3. Faalekuata, you appear for sentence on 2 charges summarised as follows:
   1. That on the 24^th of September 2016 you drove a Nissan single cab pick-up registration number 2981 while the proportion of alcohol in your breath was 84 micrograms as ascertained by an evidential breath test (driving under the influence); and
   2. That on the same date, you failed to comply with traffic lights, which was dangerous to the public having regard to all the circumstances of the case (dangerous driving).
4. You pleaded guilty to both charges on the first mention date.

The Offending

5. According to the Summary of Facts, on the 24^th September 2016 at about 5.00pm, you were at Vaitele driving from inland seawards in a Nissan pick-up 2981 owned by your employer, Bluebird Lumber. One of the victims, Kay Visesio was also driving on the same road as you. She saw you driving the pick-up in a dangerous manner swerving on the road. As a result of your vehicle swerving on the road, she had to take evasive action to swerve to the side of the road and as a consequence, she collided with a fence on the side of the road. This damaged her mirror as well as a door of her car. Kay Visesio then followed your car.
6. At the Farmer Joe 3 corner traffic lights, Matau’aina Failautusi was stopped on a red traffic light. You drove from behind and struck the rear of that car on the right side damaging the rear light and bumper. You then continued to drive your car dangerously through the traffic lights, failing to stop following this incident. The matter was reported to Police and following their investigation, they located you and carried out an evidential breath test resulting in a reading of 84 micrograms of alcohol.

The Accused

7. You are a 59 year old male of Tufuiopa and Asau. You are married with 7 children and are employed at Bluebird Hardware at Vaitele as a storeman earning $380 per week.

The Victim

8. There are two victims to your offending, Kay Visesio, a 37 year old married woman and Matauaina Failautusi, 58 year old female. Kay Visesio was driving with her husband while Matauaina Failautusi was driving with two of her children in her car.
9. A VIR was prepared on behalf of Matauaina Failautusi. She says that she was scared and worried when the incident occurred. You have repaid the costs of repairs to the vehicle plus also apologized.

Aggravating features of the offending

10. There are a number of aggravating features of your offending:
    1. Your level of intoxication was over double the legal limit;
    2. There were two victims to your offending, both separate incidences;
    100. You continued to drive the vehicle despite having caused two accidences;
    4. The car driven by you was your employer’s car and so there is breach of trust in your offending; and
    5. Your driving was severely affected by your level of intoxication.

Mitigating features of the offending

11. There are no mitigating features in respect of the offending.

Aggravating features in respect of the offender

12. There are no aggravating features personal to you as an offender before the Court.

Mitigating features in respect of the offender

13. You entered an early guilty plea. You have reconciled and apologized to Matauaina Failautusi. You expressed some remorse in Court and I also have regard to your previous good driving record.

Discussion

14. Driving whilst under the influence of alcohol is a serious offence. This is clearly expressed in the will of Parliament by the fact that the offence carries a maximum penalty of 5 years imprisonment and/or a fine of up to $5,000.00. Given the experience of the Courts, drink driving in our community is also a prevalent offence. Drinking and driving results in many road accidents, the unnecessary loss of life, personal injury and property damage. Despite both the penalties set by law and the consequences of these acts, drivers continue to offend.
15. In the circumstances of your matter, your offending is at the serious end of offending of this type. Your level of intoxication was high. You drove in a very dangerous manner and the car that you drove was your work car. You caused the victim Visesio’s car to run off the road. Rather than stopping your car, you continued driving and shortly afterwards collided with the back end of Matauaina Failautusi’s car. Despite causing two accidences, you did not stop to render assistance, left the scene and continued to drive on in a dangerous manner. In doing so, you represented a gross risk to other road users. Your level of culpability was high.
16. Samoan roads have over the years become increasingly dangerous because of drivers like you who show a gross disregard for the law and for the safety of others. Drivers who behave the way you did on the 24^th of September place the lives of the public at risk, young and old. It is far too common and drivers too often simply do not consider the consequences of their actions. A discharge without conviction is not an option nor is a conviction and discharge. A deterrence sentence must be imposed to clearly reflect the denunciation by the Court of this type of behaviour and the risks drivers like you represent on our roads. It is also to serve as a deterrent to other drivers who might think to offend in a similar way.
17. Given the totality of your offending and your level of culpability, I have contemplated a short custodial sentence. In appropriate cases, a custodial sentence may be warranted in this type of offending (see for example Yaxley v Police, 1 October 2008, High Court of New Zealand, Hamilton per Andrews J). As there were no physical injuries however suffered by any of the victims and your status as a first offender, you will be spared a custodial sentence on this occasion. The sentence I will impose will nevertheless be a deterrent sentence balanced with a rehabilitation component.

Sentence

18. You are convicted and sentenced as follows:
    100. In respect of the charge of driving while the proportion of alcohol in your breath was 84 micrograms, you are fined $660.00 to be paid within 7 days, in default, 7 weeks imprisonment; and
    4. In respect of the charge of dangerous driving, you are convicted and sentenced to 8 months supervision on condition (i) you carry out 80 hours of community work and (ii) you complete an 8 week alcohol program as directed by the Probation Service.
19. In terms of your driver’s licence, taking into account your employment and family matters for a driver’s licence, the period of disqualification of your driver’s licence is reduced to 8 months from today. You are therefore disqualified from holding or obtaining a drivers licence for 8 months.

JUDGE LEIATAUALESÃ D.M. CLARKE