Police v Lui [2016] WSDC 8 (7 March 2016)

DISTRICT COURT OF SAMOA
Police v Lui [2016] WSDC 8

Case name:	Police v Lui
Citation:	[2016] WSDC 8
Decision date:	7 March 2016
Parties:	POLICE v PHILIP ESE LUI male of Moataa
Hearing date(s):
File number(s):	D2699/15, D2700/15.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	District Court Judge Clarke
On appeal from:
Order:	The defendant is convicted and sentenced as follows: (1) In respect of the charge of dangerous driving, sentenced to community work of 90 hours; and (2) In respect of the charge of unlicensed driving, he has no excuse to have been driving. He is fined $200 to be paid by 4.00pm today, in default, two weeks imprisonment.
Representation:	Ms R Titi for Prosecution Ms D. Roma for defendant
Catchwords:
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 s.39 (1) & 72A (2).
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D

PHILIP ESE LUI male of Moataa.
Defendant

Counsel:
R. Titi for Prosecution
D. Roma for defendant

Decision : 7 March 2016

SENTENCING OF DCJ CLARKE

The Charges

1 The defendant appears for sentence on 2 charges, namely:

1. One charge of dangerous driving which carries a penalty of up to 2 years imprisonment or a fine of $1,000.00; and
2. One charge of unlicensed driving which carries a fine of $200.00.

2 The defendant pleaded not guilty through counsel to both charges when the matter was mentioned on 17 November 2015 and the matter set down for hearing on both charges on 28 January 2016. On 28 January 2016, leave was granted for the pleas of not guilty to be vacated through counsel and pleas of guilty entered and the matter set down for sentencing on 18 February 2016. The Court heard submissions on sentencing on 18 February 2016 and the sentencing decision was then reserved to today.

The Offending

3 The Summary of Facts accepted by the defendant through counsel states that in the early hours of 17 October 2015 at around 3.38am, the Police were conducting ‘their usual patrol around the town area.’ As the Police patrol returned from the Mulinuu area and reached the front of the Tanoa Tusitala Hotel, a white minivan registration # 22823 suddenly overtook the Police vehicle. The white minivan driven by the defendant overtook the Police patrol vehicle on the left side usually used for car parking. The Police patrol vehicle turned on its siren to signal to the defendant to stop but the defendant increased speed and drove away faster. The Police vehicle than gave chase. The defendant’s vehicle reached the town clock where Police again attempted to stop the defendant’s vehicle but the defendant did not stop. He drove to the McDonald’s family restaurant and turned left at the four corners.
4 The defendant’s car then proceeded on to Tufuiopa. Another Police car which acted as back-up was at Tufuiopa and had blocked the road so as to block the defendant’s vehicle from going through. Despite the blocking of the road by the second Police vehicle, the defendant kept driving and hit the front bumper of the Police vehicle. The Police vehicle that had earlier been overtaken and was giving chase arrived at the scene to find the defendant’s vehicle and the second Police vehicle on the road. Police tried to apprehend the defendant but “the defendant continued to resist and was being difficult.”
5 The defendant was taken to the Police Station and cautioned and charged.
6 Counsel for the Prosecution advised the Court that the Police patrol vehicle overtaken by the defendant in the front of Tanoa Tusitala was a marked Police vehicle. The vehicle driven by the defendant had one passenger, a female who was said to be his girlfriend and who defence counsel said in her submissions, the defendant was trying to impress.
7 In her submissions to the Court, counsel for the defendant advised the Court that the defendant had consumed alcohol on this evening. He was however not charged as he was below the legal limit.

Background of the defendant

8 The defendant is Philip Ese Lui. He is a 23 year old Samoan male of Moata’a. He is unemployed and based on submissions by defence counsel, he looks after his sick mother. He is unmarried and has no children. He had not held a driver’s licence before the incident.
9 After this incident for which he is being sentenced today, the defendant applied for and was issued a driver’s license on 6 November 2015.

The Victim

10 The Victim in this matter is the Ministry of Police. Whilst it was accepted by the defendant through counsel that the defendant had damaged a Police vehicle, no reparation for the damage caused to the Police vehicle bumper had been made to Police. The matter was adjourned to today’s date for the defendant to take the opportunity to make reparations for the damage, if he so chose and to render an apology. Defence counsel informed the Court from the bar table that enquiries had been made on the amount of repair damage to the Police vehicle but payment had not been made as Police had not advised of the repair costs. Counsel further advised that the defendant’s father had been to and rendered an apology to Police through Assistant Commissioner Soonalole.

Aggravating features of the offending

11. The aggravating features of the offending are:
    100. The defendant’s actions were deliberate and premeditated both in respect of driving without a licence and then subsequently, his actions of dangerous driving;
    4. The defendant overtook a marked Police car in a highly dangerous manner on the left side immediately prior to the roundabout and traffic islands in the front of the Tanoa Tusitala Hotel;
    5. The ongoing nature of the offending by refusing to stop his vehicle despite Police activating their siren in the vicinity of the Tanoa Tusitala Hotel and giving chase and later by refusing to stop at the Town Clock area when attempted to be stopped by Police;
    6. By crashing in to the Police vehicle at Tufuiopa and damaging the Police vehicle;
    7. By resisting arrest and being difficult when being arrested by Police;
    8. The defendant by his actions placed the Police Officers in the chase vehicle and the damaged Police vehicle at serious risk as well as the life of his passenger, his so called girlfriend; and
    9. The defendant also placed at risk through his dangerous conduct the lives of other innocent road users.

Mitigating features of the offending

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

Aggravating features in respect of the offender

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

Mitigating features in respect of the offender

14 The Defendant entered a guilty plea. This however was at a late stage and entered on the date of hearing on 28 January 2016, almost three (3) months after first mention. Nevertheless, the Defendant is entitled to some benefit from the guilty plea.
15 Through counsel, the Defendant is said to have ‘accepted full responsibility and learnt a valuable lesson and now holds a driver’s licence.’ He is also a ‘first offender’, though at 23 years of age, that is of neutral weight as he now appears before the Courts at a relatively young age.

Discussion

16 In the early hours of Saturday morning, 17 November 2015, the defendant executed a dangerous overtaking of a marked Police vehicle as the Police vehicle headed towards Apia from Mulinu’u in the area in front of the Tanoa Tusitala Hotel. The overtaking was executed on the left side of the Police vehicle. On being alerted by the Police siren to pull over, the defendant made a conscious decision to speed off in an attempt to evade Police. On being chased, he refused to pull over and on reaching Tufuiopa where the road was blocked by a Police vehicle to prevent his escape, he rammed that Police vehicle. He then resisted arrest. The actions of the defendant in the early hours of 17 November 2015 can only be described as incredibly stupid and dangerous.
17 It was submitted on behalf of the defendant that he attempted to flee Police as he held no driver’s licence. By doing so, he placed the lives of so many people at risk, including those of the Police officers involved, his so called girlfriend and other innocent road users. Counsel appropriately acknowledged that this was no excuse. It was further noted that the defendant had been trying to impress his girlfriend.
18 In her submissions to the Court, counsel for the defendant submitted that the defendant had accepted full responsibility for his actions and learnt a valuable lesson. Whilst he may have accepted full responsibility for his actions, he has neither paid for the damage to the Police vehicle caused by him nor has he personally apologized to Police, such apology having been rendered through his father. Payment of reparations for damages would have given greater credibility to the submissions on behalf of the defendant. Some benefit will however be given for the apology through the defendant’s father.
19 The facts of this matter demonstrate the actions of a young man with no respect for the law or for Police. He is willing to place the lives of others at serious risk, despite the blatantly obvious dangers of his actions. This is not a movie and neither is the defendant a movie star. In real life, these actions have potentially fatal outcomes – in part in his case, to apparently impress his girlfriend. The defendant is very fortunate that no one was injured or killed as a result of his actions.
20 Having regard to all the factors, both aggravating and mitigating of the offence and the offender, this is not a case in which imprisonment is warranted. Such a penalty was also appropriately not sought by the Prosecution.
21 However, the Court will impose a sentence to hold the defendant accountable for his actions, remove him as a threat from the roads for a fixed period, denounce and deter his conduct and continue to promote in the defendant a sense of responsibility for, and an acknowledgment of the harm (both actual and potential) caused by him. The Court sincerely hopes that the opportunity extended to the defendant is one that he makes the most of and that this offending is one that is isolated, out of character and he uses this opportunity to improve his life and learn respect for the law.

Sentence

22 The defendant is convicted and sentenced as follows:

10. In respect of the charge of dangerous driving, sentenced to community work of 90 hours; and
11. In respect of the charge of unlicensed driving, he has no excuse to have been driving. He is fined $200 to be paid by 4.00pm today, in default, two weeks imprisonment.

23 Pursuant to section 33 and 33A of the Road Traffic Ordinance 1960, it is further ordered that the defendant is disqualified from holding or obtaining any driver’s licence for a period of 12 months from today and may only obtain a driver’s licence thereafter after he has passed the prescribed test of competence to drive any class or classes of vehicles he may thereafter seek to drive.

JUDGE D M CLARKE