Police v Tusa [2017] WSDC 25 (8 December 2017)

DISTRICT COURT OF SAMOA
Police v Su’a [2017] WSDC 25

Case name:	Police v Tusa
Citation:	[2017] WSDC 2
Decision date:	01 & 08 December 2017
Parties:	POLICE (Informant) and FAATILI TUSA, male of Faleseela (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Alalatoa Rosella Viane Papalii
On appeal from:
Order:	You are convicted on all 3 offences and sentence as follows: i) You are to serve a probation term for one (1) year; ii) You are to pay $1200 Court fine, $100 police costs, $100 Probation costs. This must be paid by 10am on 19/01/18. Your matter will be recalled at 10.30pm before me for you to appear and provide confirmation of the payment of the total fine of $1400. If by that date you have not paid the fine then I will pass an alternative sentence on you. iii) You are also forbidden from holding a driver’s licence for 2 years and will only be issued a driver’s license after you sit the defensive course hosted by Land Transport Authority.
Representation:	Ms Titi and Ms Afoa for Informant Defendant appears in Person
Catchwords:
Words and phrases:	Negligent driving causing death – unlicensed vehicle – unlicensed driver – failure to appear in Court –
Legislation cited:	Road Traffic Ordinance 1960 ss.7(1) (2); 39
Cases cited:	Police v Siaso [2014] WSSC 56 See P v Lauina [2017] WSDC 5, P v Leilua Unreported sentencing decision of J Roma delivered on 13/11/15; P v Willie Tialino unreported sentencing decision of J Vaai (as he was known then) delivered on 22/03/10, P v Chan Sau unreported sentencing decision of J Tuatagaloa (as she was known then delivered on 2/07/13
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

FAATILI TUSA male of Faleseela, Lefaga
Defendant

Counsel: Ms Titi and Ms Afoa for Informant

Defendant appears in Person

Sentencing Dates: 01 & 08 December 2017

SENTENCING

Charges

1. Faatili Tusa (“Tusa”) you face three charges namely that at Faleseela on 16/06/16 you negligently drove Toyota Hilux registration number 7113 (“the Hilux”) and thereby caused the death of Johnson Pasina, a three year old child of Faleseela. At the time you had no driver’s license and the Hilux was unlicensed.
2. The charges are brought pursuant to ss7 (1) (2) and 39 Road Traffic Ordinance 1960. You entered guilty pleas to all counts on 19/08/16.
3. For some time, the charges remained outstanding as there was a warrant of arrest issued against you for your non appearance in Court on 2/09/16.This warrant was only executed recently thereby enabling the Court to finally deal with this matter.

Offending

4. The Summary of facts (“SOF”) as amended sets out what happened. You accepted it. Your version of events as canvassed in the Pre-sentence report (“PSR”).
5. The SOF says that on 16/06/16 at Faleaseela, you were driving the Hilux on the main road heading inland towards your plantation. The Deceased who was only three years old at the material time was walking on the side of the road. His mother was at Peo Misi’s shop (“The Shop”) on the opposite side.
6. You told probation that when the Hilux you drove reached the shop, you saw one of your fellow villagers at the shop with the mother of the deceased. He called out to you for a ride. You slowed down the Hilux and conversed to him from the vehicle whilst it was still moving. It was during this time that you hit the deceased.
7. You stopped the Hilux and drove the deceased to Leulumoega Hospital. But it was too late. He died not long after.

Accused

8. Your PSR canvasses well your personal background and your version of the offence.
9. You are 44 years old from Faleseela where you were born and raised; married with three children. You finished secondary school at year 12. So you had a good level of education. Your family’s main source of income is the plantation and they continue to support you and they speak highly of you in your PSR. They ask for leniency.
10. A testimonial by the Pulenuu of your village confirms your service (tautua) as a taulelea to your village and that you serve the village fono well.

Deceased

11. The Deceased was only 3 years old when he died. He is survived by his parents and siblings.

Aggravating Factors

12. The aggravating features of your offending are as follows:
    1. Firstly the loss of life to this toddler who will never experience life to its fullest as it was suddenly taken from him due to your negligence;
    2. You caused irreparable harm and hurt to the family of the deceased as no amount of apology will bring back the deceased;
    100. The manner you drove was negligent, fell far below the level required of a reasonable driver. It unsafe and dangerous thereby posing an extreme risk to other road users;
    4. You drove without a driver’s license an unlicensed vehicle and you had full knowledge of this. You have no business driving a vehicle without a license. The vehicle you drove should not have been on the road.
    5. Your driving is a risk to other road users and the sentence I pass will reflect this aspect.

Aggravating factors personal to you

13. I consider your failure to appear in court leading to this matter remaining outstanding in the court system for some time an aggravating factor personal to you.

Mitigating Factors

14. The PSR confirmed you performed an ifoga to the family of the deceased and this was duly accepted. Your family and that of the deceased have a close relationship, and with the performance of the ifoga, peace and harmony have been restored between the two families and reconciliation achieved. An ifoga as we all know is an extreme measure of humility the performance of which is vital in our culture. It is settled law that an ifoga is a separate mitigating factor that this Court must take into account at sentence.^[1]
15. Your family also presented faaaloaloga at the deceased’s lauava as is customary. These included fine mats, 20 boxes of tinned fish, 20 chicken cases, 3 baskets of taro, 1 sow and $1500 cash. You also dealt with the deceased’s grave.
16. I accept you are remorseful. This is echoed in your Pre- Sentence report and address to the Court.
17. You are a first offender meaning you have an unblemished record and therefore a person of good character. Your good character is further reflected in your favourable presentence report.
18. You pleaded guilty to the offence which is a further indication of your remorse and willingness to accept responsibility.

Discussion

19. Negligent driving causing death is at the epitome of traffic offences under the Road Traffic Ordinance 1960. It is no secret that the loss of life due to traffic offences continues to be on the rampant rise. Each time someone dies from a traffic incident, the question that immediately comes to mind is why?
20. I acknowledge the hardening of the courts to the continuing road toll and repetition of personal tragedies. There is a growing sense of public concern. The Courts have done its duty in imposing deterring sentences with the aim of denouncing this type of offending. But at the end of the day, those who drive and use the roads have a duty to put a stop to this type of offending.
21. Traffic offences like your matter are fact specific.
22. The manner you drove the Hilux especially when you reached the shop was in my view very negligent. You completely failed in your duty to other road users to drive with due care.
23. Here, instead of stopping the Hilux and pulling over on the side of the road to talk to the person at the shop, you consciously made the decision to talk to this person from the Hilux when it was still on the road and moving.
24. Had you stopped the Hilux, this incident might not have occurred and the deceased’s life spared. Had you paid attention to the road and its vicinity you would have noted the deceased on the side of the road following his mum. You should have been more cautious. This is not momentary inattention. It was deliberate and could have been avoided.
25. The deceased was only three years old. You robbed her of her life. I am certain you will live with the guilt for the rest of your life. The deceased’s family will continue to mourn his untimely death. The hurt they feel is lessened to some extent by the ifoga and customary gifts you presented.
26. Your primary offence is compounded by your driving the unlicensed Hilux when you had no legal licence to drive. In other words and put simply, you had no business driving that car at all on the road. One would thought that this should have put you on the alert and drive more carefully. But no. Instead you simply did not drive as a reasonable prudent driver would have done in the circumstances.
27. There are far too many of you drivers, who deliberately ignore the law and drive unlicensed vehicles and without a driver’s licence. The result of your actions is the loss of life of an innocent child who will never grow to see what God has in store for her.
28. I am telling you today and all others who are tempted to do this, the Court will not hesitate to deal with you in accordance with the law.
29. In your favour however, you have done all that you can to alleviate the pain on the deceased’s family. I am obliged to take into consideration the mitigating factors above (pp 14 to 18) in deciding an appropriate sentence for you.
30. Prosecution has recommended a conviction and a starting time of 12 months imprisonment relying on the case of P v Atonio Siaso^[2]. With all due respect, the circumstances in Siaso are distinguished and more aggravating compared to the facts of your case. That case involved the consumption by the accused there of alcohol whilst driving and speeding. I therefore do not accept the recommendation by the Prosecution.
31. Probation recommended a non-custodial sentence and a fine if I deem this appropriate.
32. Having regarding to the circumstances of your offending, I am of the view an imprisonment term is not appropriate.
33. As I said in Lauina, except in a few cases where custodial sentences have been imposed, this Court has consistently imposed, non custodial sentences and fines for this type of offending.^[3]
34. I intend to do the same here. But I do so with a very stern warning to you Faatili. Do not take this for granted because the next time you appear here, the Court will not be so merciful. Learn from this terrible incident which has cost the life of an innocent child.
35. You are 44 married with children. It is timely you make wise and matured decisions will not cause harm and unnecessary pain to others.

Penalty

36. Taking into consideration the totality of your offending, you are convicted on all 3 offences and sentence as follows:
    1. You are to serve a probation term for one (1) year;
    2. You are to pay $1200 Court fine, $100 police costs, $100 Probation costs. This must be paid by 10am on 19/01/18. Your matter will be recalled at 10.30pm before me for you to appear and provide confirmation of the payment of the total fine of $1400. If by that date you have not paid the fine then I will pass an alternative sentence on you.
    3. You are also forbidden from holding a driver’s license for 2 years and will only be issued a driver’s license after you pass driving course hosted by Land Transport Authority.
       

JUDGE A R VIANE PAPALII

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^[1]See Attorney General v Godinet [2011] WSCA 6
^[2] Police v Siaso [2014] WSSC 56
^[3] See P v Lauina [2017] WSDC 5, P v Leilua Unreported sentencing decision of J Roma delivered on 13/11/15; P v Willie Tialino unreported sentencing decision of J Vaai (as he was known then) delivered on 22/03/10, P v Chan Sau unreported sentencing decision of J Tuatagaloa (as she was known then delivered on 2/07/13