Police v Saimoni [2017] WSDC 16 (28 April 2017)

THE DISTRICT COURT OF SAMOA
Police v Saimoni [2017] WSDC 16

Case name:	Police v Saimoni
Citation:	[2017] WSDC 16
Decision date:	28 April 2017
Parties:	POLICE v FETULI SAIMONI male of Tuanai
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa Rosella Viane Papalii
On appeal from:
Order:	Fetuli you are convicted and sentenced to serve 12 months imprisonment. In addition, you are disqualified from holding a driver’s licence for 2 years.
Representation:	Sergeant KT Stanley for Prosecution Accuse in Person
Catchwords:	Negligent Driving Causing injury Recidivist
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960 section 39A,- Sentencing Act 2016 section7(1)(j) NZ Sentencing Act 2002 section 9(1)(j)
op"> R v Filo [2007] NZCA 20 at [21]- [22] R v Rautahi CA 78/2011 [2011] NZCA 351 R v Skerrett CA236/86, 9 December 1986 P v Lemalu [2015] WSSC 79 1P v Sua [2017] WSDC 6
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

FETULI SAIMONI male of Tuanai
Defendant

Representation:
Sergeant KT Stanley for Prosecution
Accuse in Person

Sentencing Date: 28 April 2017

SENTENCING REMARKS OF JUDGE VIANE PAPALII

Charge

1. The Defendant Fetuli Saimoni (“Fetuli’) appears for sentence on one charge namely that on 18 January 2017, he negligently drove a Nissan Bluebird vehicle registration number T-2368 (“The Taxi”) on West Coast Road and thereby causing injury to John Liang male of Vaitele and China, contrary to s 39A Road Traffic Ordinance 1960 (“RTO”).
2. The offence carries a penalty of a maximum term of imprisonment of five (5) years or a fine not exceeding 20 penalty units or $2000. You pleaded guilty to the offence at the earliest opportunity on 28 February 2017.

The Offending

3. According to the summary of facts you have accepted, on 18 January 2017 between 11pm and 12am, you were driving the taxi easterly towards the Apia direction. At the same time and place the victim was driving his car with another passenger westwards from Apia heading the opposite direction.
4. At Tuanai on the West Coast road you were speeding and lost control of the taxi that it swerved onto the opposite lane and collided into the front right side of the victim’s vehicle sustaining damage.
5. The incident was reported to Police and when they attended the scene it was discovered you were intoxicated. The victim sustained bruises to his forehead, angle and scratch to his left ear.
6. You told probation that on the night in question, the taxi was stationed at the boundary of Tuanai and Leauvaa when your bus driver friend called you on your mobile phone if you could help fix his bus as it could not start and he needed to pick up his passengers from the Bingo.
7. You rushed to his aid and just after the village pool at Tuanai around a corner, the tyre of the taxi caught the loose gravel on the road causing you to lose control of taxi that it swerved to the opposite lane hitting the victim’s vehicle.
8. You also told probation that you settled the matter with the victim and it was agreed that each person would be liable for fixing his own vehicle. I find this hard to believe especially given it was you who was at fault and the Victim Impact report (“VIR”) did not mention this at all.

The Accused

9. Fetuli, you are a 49 year old male of Tuanai married with 5 children. You have been conferred the oratory title, Tuialii. According to your updated presentence report dated 21 April 2017 you come from a family of 13 siblings and you were able to complete Form 4 then you dropped out. You took up employment as a bus driver and now a taxi driver.
10. Your wife Simoa Fetuli spoke highly of you as the breadwinner of your family and seeks leniency on you. YourTuanai EFKS Church Minister, Rev Kamuta Mataafa testifies to your being a loyal, active and reliable member and deacon of your congregation. The sui o le nuu, Logo F Futialo Faaiu also speaks volume of your service to the village and its various activities.

The Victim

11. The victim of your offending is Zhi Jiang Liang (a.k.a John Liang), a 30 year old male of Ululoloa and China, single and employed at Metek at Vaitele.
12. The VIR states that the victim not only suffered physical injury but psychological trauma and hurt. Since the incident he has suffered post accident trauma and that he “wash face with tears ..., loss of appetite, poor physical health”
13. He stated that it cost him $15,000 to repair his vehicle and this was from his hard earned savings. He also had to borrow money from a friend to help out. In sum he has suffered loss and injury.
14. Contrary to what you told probation, when I questioned you if you have apologised to the victim you confirmed you have not done so nor offer to the victim any remedial actions or reparation up to the time of sentencing. When asked why you did not do this you said you were too busy and did not have the time to.

Aggravating features of your Offending

15. You did not exercise the degree of care and attention that a reasonable driver would have exercised in the circumstances. In other words, you drove the taxi without due care on the night in question leading to the incident and you were therefore negligent.
16. You made a manifest decision to drive the taxi knowing full well you had been drinking alcohol. This coupled with the speed with which you drove the taxi led to the incident you are charged with. Your actions were therefore premeditated in that sense and grossly negligent.
17. It is true you were not charged with driving in excess of the legal limit of alcohol, but as I said I do recognise alcohol consumption as a disinhibitor. It did play a factor in your driving. The New Zealand Court of Appeal in R v Skerrett^[1] recognised it as a relevant factor, even if it was under the legal limit it is still an aggravating feature.
18. The victim suffered physical, emotional and psychological injuries and trauma due to your negligence.
19. The victim also suffered direct loss in terms of the monies in the sum of $15,000 he dispensed to repair his vehicle damaged by your negligent driving.
20. The fact there is no reparation or reconciliation is also an aggravating factor.

Mitigating features of your offending

21. There is none

Aggravating factor relating to you as an offender

22. You are a recidivist of this type of offending. In fact your previous conviction record shows from 1996 to 2012, you have been convicted of 35 traffic related offences. These ranged from dangerous driving, overloading, unlicensed vehicle & driver, running board, permitting dangerous riding, failure to produce driver’s license, driving over the alcohol limit.
23. Since 1996 up to 2012, you have not missed a year without being convicted of a traffic offence. In 2001 alone, you were convicted and sentenced 16 times for traffic offendings. Your last traffic related offence was for driving in excess of the alcohol limit and on 7/12/2012 you were convicted and fined $350 to be paid forthwith in default 8 weeks imprisonment.
24. It seems from the history of your traffic offences that it starts from trifling ones such as overloading to the more severe ones as reflected in the current one you are now appearing on for sentence of negligent driving causing injury.
25. You also have previous convictions for other offences including obstruction. Your presentence report confirms another conviction not shown in the PC record of armed with a dangerous weapon and misconduct with human remains filed in the Supreme Court where on 18 August 2014, you were convicted and sentenced with a fine of $600.00. I accept these are unrelated to your present offending but nevertheless it does go towards the overall assessment of your character.
26. As was said by the NZ Court of Appeal in R v Rautahi^[2] which I quoted in P v Su’a^[3] previous convictions are a relevant aggravating factor, which the Court must take into account to the extent applicable, under s 9(1)(j) of Z Sentencing Actg Act 2002. This is mirrored in s7(1)(j) of our Sentencing Act 2016 (“SA”) cited below:
    • (j) the number, seriousness, date, relevance, and nature of any previous convictions of the offender and of any convictions for which the offender is being sentenced or otherwise dealt with at the same time.”
27. The learned CJ Sapolu in P v Lemalu^[4] also identified previous conviction as an aggravating feature relating to the accused as an offender. Other Justices and Judges have been adopting the same sentencing approach.

Mitigating factor relating to you as an offender

28. The only mitigating factor is your guilty plea.
29. I do not consider your age as a mitigating factor. If anything your age and previous run - ins with the law should have taught you a lesson. But you keep testing it thinking you could get away with it each time you reoffend. .
30. Your elderly mother appeared pleading for mercy as you are the only one in charge of her care. Although I empathise with her, you should have thought of her, your wife and children first before you got behind that wheel. Too often those who matters are receded to the back seat and only thought of when trouble strikes.

Discussion

31. I bear in mind the purpose of sentencing our Court’s have adopted now set out in s5 SA. The relevant purpose is to hold you accountable for the harm you have done to the victim and community by your offending; to promote in you a sense of responsibility and acknowledgement of the harm you inflicted; to denounce your conduct; and deter you and others from committing this type of offence.
32. The principles of sentencing applicable to you as set out in s 6 (a), (b) (e) & (f) SA include the gravity of your offending and the degree of culpability which I view as high; the seriousness of the offending as indicative in the penalty imposed by Parliament; the general desirability of consistency with appropriate sentencing levels...in similar offending; and the effects of your offending on the victim.
33. Your previous conviction record is a concern especially since it infers you have a “predilection” to commit traffic type of offendings. I hasten to say that maybe part of the reason you continue to reoffend is because on all 35 occasions you were convicted of traffic offences from 1996 to 2012, you received non custodial sentences.
34. It seems to me you took for granted the chances the Courts gave you in the past and thought you can continue to break the law and get away with a non- custodial sentence. I am telling you today you will not get away with abusing the mercy of the Court. On this occasion, I have no alternative but pass a stern deterring and denouncing sentence with the hope this time, the message will sink in your head.
35. As was said by the NZ Court of Appeal in R v;Filo:^[5]
    • “... The previous convictions of a prisoay indicate a predilection tion (sic) to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly.”
36. I bear in mind the principles of the Community Justice Act 2008 which promotes the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.
37. But for you Fetuli, you are no stranger to this Court and I am sure you have learnt all the tricks in the book. This no doubt includes the insincere apologies you conveyed to the Courts in the past and dragging your elderly mother to plea for mercy to earn some sympathy. But this will not work this time.
38. Your offending on this occasion is on the higher end being negligent driving causing injury. I shiver at the thought that the next time you appear in Court someone has died from your bad driving and gross disregard of the law.
39. So I do view you as a risk to other road users who must be protected against you. It is certainly impracticable and inconsistent with the safety to the community to grant you a non custodial sentence and keep you in the community. This will not be in the public interest.
40. You apologised to the Court but as I said, I regard that apology as empty and insincere. If it was sincere, you would have taken positive steps to right the wrong and harm you inflicted on the victim. But since this incident you have not done anything at all. There is no acknowledgement from you of the harm you inflicted.
41. The victim in the VIR says you never once apologised or pay reparation. Your attitude when asked about this was blasé and the impression I got was you did not care one way or another about the victim and the harm you inflicted on him.
42. The amount of lives lost and injured from drivers like you is on the rampant rise. The Court is doing its job in passing deterring, denouncing, and rehabilitative sentences in the hope it would lower the crime rate for this type of offence.
43. But the Court can only do so much. You and members of our community must equally do your job to ensure our roads are safe for all its users by being extra prudent and complying with the law. It is a joint effort.
44. A strong message must be sent toyou and the public that this Court and our community neither condone this type of offence nor your continuous disregard of the law as evident in your history of offending.
45. On this occasion, a custodial sentence is called for. The only question I must consider is the starting time and length of imprisonment time for you to serve bearing in mind that traffic offences are very fact specific.
46. As a sentencing Court, I must in the circumstances of your offending, balance two competing principles which as was said in R v Rautahi are:
    • “...the principle that the character of the offender is relevant to the preventive and deterrent purposes of sentencing, on the one hand, and the principle that an offender should not be punished again for earlier offending, on the other.”
47. I do not intend to punish you twice for your earlier offences. But I will take into account your related previous convictions as relevant to your character in passing a deterring and preventative sentence on you.
48. Probation has recommended a fine. I do not consider this appropriate. Prosecution has recommended a custodial sentence with a starting time of 18 years to be upgraded to 12 months for your previous convictions. I consider that starting time to be too high.
49. Having regard to all the aggravating features, mitigating factors and the need for deterrence, I will take 12 months as a starting point. I uplift that to 8 months for your previous convictions and aggravating factors. I deduct 6 months for your guilty plea thereby leaving 12 months.
50. Pursuant to s39 (4) RTO, you are disqualified from holding a driver’s licence for two years.

Penalty

51. Fetuli you are convicted and sentenced to serve 12 months imprisonment.
52. In addition, you are disqualified from holding a driver’s licence for 2 years.
    

JUDGE ALALATOA R VIANE PAPALII

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^[1] R v Skerrett CA236/86, 9 December 1986.
^[2] R v Rautahi CA 78/2011 [2011] NZCA 351
^[3]P v Sua [2017] WSDC 6
^[4] P v Lemalu [2015] WSSC 79
^[5]R v Filo [2007] NZCA 20 at [21]- [22].