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Police v Lauina [2017] WSDC 5 (12 May 2017)

THE DISTRICT COURT OF SAMOA
Police v Lauina [2017] WSDC 5


Case name:
Police v Lauina


Citation:


Decision date:
12 May 2017


Parties:
POLICE (Prosecution) v LILO LAUINA, male of Vaivase-uta & Moataa (Accused)


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:
- Convicted and ordered to pay forthwith and by 4pm today the following; in default 3 months imprisonment:
  1. Court fine in the sum of $800;
  2. Prosecution costs of $200;
  3. $300 to probation service to assist with youth programmes.
  4. Total = $1300


Representation:
A.Matalasi for Prosecution
T V Lei Sam for Defendant


Catchwords:
Negligently Driving Causing Death – aggravating and mitigating factors -


Words and phrases:


Legislation cited:
Road Traffic Ordinance 1960 section 39A; Sentencing Act 2016 sections 5, 6 & 7(2) (e), 17 (1) (a) & (b), 69 and 70- Criminal Procedure Act 1972 section 104 (1)(b), NZ Sentencing Act 2002 sections 106 (5) – (7) and 107- Public Bodies Performance Act 2015 section 15 & schedule 3.1.1(b)(v)


Cases cited:
Police v Papali Moalele [2011] WSSC 13; Pale v Attorney General [2010] WSSC 122; P v Atonio [2016] WSSC 56; R v Hughes [2008] NZCA 546; Fisheries Inspector v Turner [1978] 2 NZLR 233; P v Roberts [1991] 1NZLR 205; - H (CA680/11) v R [2012] NZCA 198; DC (CA 47/13) v R [2013] NZCA 255; Thompson v Police [2017] NZHC 76; Iosefa v New Zealand Police (CIV -2005- 409-64, 21 April 2005; Alshami v Police HC Auckland CRI- 2007-404-62, 15 June 2007; Currie v Police HC Auckland CRI-2008-404-307, 27 May 2009; P v Willie Tialino (Unreported sentencing decision of Judge Vaai, delivered on 22 March 2010; P v Chan Sau (unreported sentencing decision of Judge Tuatagaloa delivered on 2 July 2017; P v Likisone Leilua (unreported sentencing decision of Judge Roma delivered on 13 November 2015); Adams on Criminal Law- Sentencing; Updated Abstract 10/11/2014 (Brookers & Thompson)
.


Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN


POLICE
Prosecution


A N D


LILO LAUINA, male of Vaivase-uta & Moataa
Defendant


Counsel:
A.Matalasi for Prosecution
T V Lei Sam for Defendant


Decision: 12 May 2017


SENTENCING DECISION OF JUDGE VIANE PAPALII

Charge

  1. Lilo Lauina (“Lauina”), you appear today for sentencing on one charge of negligently driving a Toyota Hiace van registered number 20382 (“the van’) on west coast road at Fasitoo-uta thereby causing the death of Elsie Vili (“Deceased”) on 6 December 2016 contrary to section 39A Road Traffic Ordinance 1960 (“RTA”).
  2. The maximum penalty for this offence is 5 years imprisonment or a fine of 20 penalty units (ST$2000.00).
  3. You firstly denied the charge and a not guilty plea entered on 25 January 2017. But you subsequently changed your plea on February 2017 through your counsel. The matter was then set down for sentencing.

The Offending

  1. According to the Summary of Facts (“Summary”) which you accepted through your counsel, on 6 December 2016 at around 1pm, you were driving the van from Apia along west coast road heading to Faleolo airport. Other passengers in the van were your grandchildren.
  2. At Fasitoo-uta, you fell asleep at the wheel causing the van to veer off the road hitting the deceased. Shortly after hitting the deceased you drove straight to the Faleolo Police post and reported the incident.
  3. A vehicle passing by the scene took the deceased to the hospital but she was later pronounced dead on the same date. The injuries the deceased sustained are listed in paragraph 9 of the summary as follows:
    1. Open fracture to the right parietal area;
    2. Bleeding from ears and nose;

iii) Deformed right leg;

iv) Multiple abrasions on the face;

v) Bruises on her body.

  1. The cause of death is severe head injury.
  2. You told the probation service that about 50 metres from the hump in front of Toleafoa Faafisi’s shop at Fasitoo-uta, you heard the front left hand side of the van suddenly hit something. You alleged that the deceased had run out of the hedges on the roadside, straight on to the main road and the van hit her.
  3. At the last calling of this matter to hear sentencing submissions on 26/04/17, you indicated to the Court that you wanted to say something. Although your counsel had already spoken for you, I was mindful of your right to be heard and gave you that opportunity. You reconfirmed your acceptance of the summary of facts. But you proceeded to repeat the same story you told the probation service, that you were shocked when the deceased suddenly came out of nowhere straight on to the side of the road where you were driving and you could not avoid hitting her.
  4. I was naturally concerned about this version of events and could not close my mind to it. I asked your counsel to clarify what was going on if you had agreed to change your plea or if you disputed the summary. I was concerned if the plea was unequivocal or not. Your counsel apologised profusely to the Court and indicated he did not understand why you said what you did.
  5. Your counsel was also asked if he had gone through the summary with you and draw your attention especially to the critical material fact in paragraph 5 where it says you had fallen asleep at the wheel of a moving car and whether you agreed to this. Your counsel confirmed he did and you agreed to it. Your counsel was further asked if the instructions he received from you disclosed you did in fact fall asleep at the wheel and he confirmed those were the instructions he received which also led to the change of plea.
  6. The Prosecution was asked about the evidence to support the above material fact in paragraph 5 of the summary. Ms Matalasi confirmed it was from your statement you gave Police on 6 December 2016 where you told Police you fell asleep at the wheel which caused you to hit the deceased. A copy of that statement is on file.
  7. Section 17 (1) (a) & (b) Sentencing Act 2016 (“SA”) is relevant here. It states that in determining a sentence, “a court may accept as proved any fact agreed on by the prosecutor and defendant and it must accept as proved all facts expressed or implied that are essential to a plea of guilt.”
  8. I will accept for the purposes of sentencing what your counsel had told the Court regarding the instructions he received from you that you did in fact fall asleep at the wheel causing you to hit the deceased. Obviously, this together with the trial documents led to the change of plea.
  9. This is further supported by a letter on file dated 8 February 2017 from your counsel informing the Court that he had been instructed to act for you and he requested if the matter could be re-mentioned as there was a likelihood of a change of plea. At paragraph 3 of that letter, your counsel advised that upon obtaining the trial documents and further discussions with you, you have decided to change your plea from not guilty to guilty.
  10. Further support to the fact that you fell asleep can also be elicited from the testimonial of your pastor Rev. Enefatu Lesa where he said at the second line of paragraph 3, “Ae ua fai le fiamoe e fai ma ala o faalavelave tutupu”. This speaks for itself. It infers this is what you told your Faifeau. How else would he have known about it after all you were the only one who knew you fell asleep whilst driving?
  11. I also accept the advice from the Prosecution that this material fact was obtained from a statement you gave police.

The Accused

  1. Lauina, you are a 66 year old male of Vaivase-uta and Moataa, married with children and grandchildren. You have a favourable pre-sentence report (“PSR”) which canvasses inter alia your personal background.
  2. You had a good level of education having graduated from Samoa Polytechnic with a certificate of engineering. You were employed as an engineer for the Marines in 1971. In 1977 you worked for Samoa Shipping Corporation when it was first established. You also worked in Nauru as an engineer then returned to Samoa where in 1988 you joined the Police Service. You retired from the force as a sergeant in 2007.
  3. You hold the tulafale matai title of Po’e from Moataa. You also hold important roles in your EFKS church, Tanoaleia at Vaivase- uta. You are a board director for Samoa Shipping Corporation (“SSC”). According to a letter dated 20/01/17 from the CEO of Samoa Shipping Corporation (“SSC”), you were appointed to that role by cabinet directive (FK (16) 07 on 24/02/16.
  4. Your wife speaks highly of you. With the both of you now retired, you rely on your children for financial support. No doubt you also get a monthly allowance from your SSC board director role to assist. You now both devote your time looking after your grandchildren whilst at the same time serving the church and village. Your wife is understandably distressed and worried about the end result of this matter.
  5. According to the PSR, you have been a driver for 38 years but this is the first time you have been charged with an offence. It has been confirmed you are a first offender.
  6. The testimonials submitted on your behalf speak volume of your good character. Your pastor Rev. Elefatu Lesa confirms you are a reliable, respectable, and trustworthy member who is much loved by your congregation. You are actively involved in church programmes. The testimonial from your sui o le Malo for Vaivase - uta, Faasoutele Avaliga also echoes the same.
  7. It is evident that you have outstanding personal qualities but your involvement in this matter has marred that. I therefore accept the offending is out of character.

The Victim

  1. The Deceased is a 23 year old female of Nofoalii. The Victim Impact Report (“VIR”) and letter signed by the deceased’s father Vili Pule Su’a expresses deep sadness for the loss of the deceased who is sorely missed by her family. Despite their loss, her family has forgiven you Lauina, as they believe you are truly remorseful and due to all the remedial actions you took.
  2. The PSR confirms that an ifoga was performed by your family to the deceased’s one where you gifted 3 ietele, and ST$3500 which was duly accepted and reconciliation achieved.
  3. Your family also made presentations of faaaloaloga consisting of food stuff to assist the family of the deceased with her funeral. The total estimated value of all faaaloaloga including those presented at the ifoga is ST$10,000. The VIR further confirms this.

Aggravating Features of Offending

  1. Lauina, the aggravating features of your offending are as follows:
    1. You breached your duty owed to road users you were traveling on to drive with care at all times. You neglected to perform that duty when you decided to drive the long trip to Faleolo airport even when you knew you were tired. You fell asleep at the wheel causing the van to veer off the road hitting the deceased.
      1. The injuries sustained by the deceased causing her death soon after the incident, were severe;
      1. The irreplaceable loss of a life is most significant;
      1. You had your grandchildren in the car and you placed their lives in danger as well when you decided to continue driving in your fatigue state when you could have pulled over on the side and have a little rest before continuing.
      2. Your grandchildren witnessed the accident and no doubt traumatized by the incident.

Mitigating Features of Offending

  1. There are no mitigating features of your offending.

Aggravating Factors Relating to you as Offender:

  1. You are a first offender and therefore of good character prior to this offending.

Mitigating Factors Relating to you as an Offending:

  1. One of the principal mitigating factor in your favour is your good character as evident from your PSR, the lack of previous conviction and testimonials submitted on your behalf. You continue to be a productive member of your family, church and community.
  2. Your age of 66, is also a factor I must consider pursuant to s7(2) (a) SA.
  3. I take into account your delayed guilty plea which has saved the Court some time and resources. It has also saved the deceased’s family the pain of re- living the incident and their loss through a full trial which would open wounds that are in the process of healing.
  4. I accept you are remorseful as indicated in your PSR, the performance of the Ifoga and change of plea. I must take this into account pursuant to s7(2)(e) SA.
  5. You also carried out an ifoga and substantial presentation of faaaloaloga for the deceased’s lauava which I deem as “remedial action”[1] taken to alleviate the wrong you caused to the deceased’s family in accordance with Samoan customs and traditions. The value of total presentations gifted to the deceased’s family for the ifoga and lauava is estimated at $10,000. I take this into account pursuant to s.9 SA.
  6. You voluntarily reported the incident to Police and cooperated with their investigations.

Application for Discharge without Conviction

  1. You have asked the Court through your counsel to exercise its discretion in favour of a discharge without conviction under ss 69 and 70 SA. Your counsel puts forth sentencing cases in which discharge without conviction was granted. But none of those cases dealt with negligent driving causing death and therefore does not assist your application.
  2. I note that in its undated sentencing memorandum, Prosecution had recommended a starting imprisonment term of 12 months relying on Police v Atonio Siaso[2]; a negligent driving causing death case where the defendant was sentenced to 12 months imprisonment. I note however, the facts of that matter are distinguished from the present.
  3. However, at the calling of this matter to hear submissions on 26/04/17, Ms Matalasi when asked of their position in relation to the application for a discharge informed the Court prosecution did not oppose the application by the defence.
  4. Both counsel were then reminded that the consent of the Prosecution to the application does not bind the Court. While it is a factor the court can take into account, it is not an overriding consideration as that would abdicate the sentencing function of the Court to the parties involved.[3]

Discussion

Law on Discharge without conviction under repealed s.104 Criminal Procedure Act 1972

  1. The exercise of the Court’s discretion to discharge without conviction was previously dealt with under section 104(1)(b) Criminal Procedure Act 1972 (“CPA”) which is now repealed.
  2. His Honour CJ Sapolu in Police v Papalii and Moalele[4] adopted the relevant approach in determining the question of whether to discharge an accused without conviction under 104 (1)(b) CA as involving a three step approach (“Three Step Approach”). This approach was identified as deriving from the judgment of Richardson, J in Fisheries Inspector v. Turner[5] and affirmed in subsequent cases such as Police v Roberts[6]cited by Vaai J in Pale v Attorney General[7] and R v Hughes[8].
    1. The three step approach now widely adopted in Samoan Courts involve firstly, the Court considering the gravity of the offending; secondly, the direct and indirect consequences of a conviction on an offender; and finally whether the consequences are out of all proportion to the gravity of the offending.
  3. With the repeal of the CA, an application for a discharge without conviction is now covered under ss 69 and 70 of the new Sentencing Act 2016 (SA).
  4. Section 69 and 70 relevantly provides as follows:

69. Discharge without conviction – (1) if a person who is charged with an offence...pleads guilty, the court may discharge the defendant without conviction, unless by an enactment applicable to the offence the Court is required to impose a minimum sentence.

(2) A discharge under this section is taken to be an acquittal.

(3) A court discharging a defendant under this section may:

(a)...

(b)...

(c) make an order that the Court is required to make on conviction.

70. Guidance for discharge without conviction – the court must not discharge a defendant without conviction unless the court is satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence.”

Has sub section 69 & 70 SA created a threshold for the exercise of the discretion to discharge without conviction that is different from the previous approach adopted in P v Papalii &Moalele?

  1. In my view, ss 69 and 70 SA does not create a new threshold for the exercise of the discretion to discharge without conviction from the approach adopted by CJ Sapolu in Papalii &Moalele which our Courts continue to follow.
  2. A comparative analysis of ss 69 & 70 SA and the corresponding ss 106 and 107 NZ Sentencing Act 2002, shows they are materially the same where relevant. The only difference is in relation to s106 (3)(b)(ii)& (5) where “emotional harm” is replaced in our Act by “physical harm” . Subsections 5, 6, 7 of 106 NZ Sentencing Act are absent from our SA as it relates to entitlements under the NZ Injury Prevention, Rehabilitation, and Compensation Act 2001.
  3. But in terms of s 107, it mirrors our s 70 SA. The NZ Court of Appeal in Hughes had the following to say about s107:

“Although the heading to s 107 refers to “Guidance for discharge without conviction”, it is clear from the words of the section that the requirement in s 107 is mandatory. Before a court may exercise its discretion under s 106 to discharge without conviction, the court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence. Section 107 thus provides a gateway through which any discharge without conviction must pass. It stipulates a pre-condition to exercise of the discretion under s 106.”

  1. An analysis of the following NZ cases relating to discharge without conviction shows that the 3 step approach we adopted from their case law still applies.
  2. As observed in 42 above, the three step test adopted in Papalii Moalele was premised on Turner, Robert sand Hughes. Turner was the leading case for discharge without conviction applications brought under s42 of the Criminal Justice Act 1954from which the 3 step approach derived.
  3. Justice Richardson (as he then was) in Turner identified the three step approach to the exercise of the court’s discretion under s 42. He said that the court must consider first, “the gravity of the offending; secondly, the consequences of conviction; finally, whether those consequences are out of all proportion to the gravity of the offending identified at step one.” He went on further to say:

“In considering the exercise of the discretion under s 42 the Court is required to balance all the relevant public interest considerations as they apply in the particular case: or, as s 42(1) puts it, “after inquiry into the circumstances of the case”, which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s 42. (emphasis added)

  1. Section 42 was replaced by s 19 Criminal Justice 1985 and Roberts was the leading case. As noted in Hughes,“s 19 was materially the same as the former s 42 however it omitted the words “after inquiry into the circumstances of the case”. Justice Bisson delivering the judgment of the Court of Appeal observed that Richardson J’s comments as to the exercise of the court’s discretion under s 42 “was equally applicable under s 19, notwithstanding the omission from s 19 of those words”.[9].
  2. Section 19 was later replaced by ss 106 and 107 NZ Sentencing Act 2002. The leading case is Hughes where the Court of Appeal was primarily concerned with answering the question of whether the threshold test under Turner and Roberts has changed with the enactment of the NZ Sentencing Act 2002. Hughes held that the 3 step test still applied. It also held that the parameters within which the disproportionality principle operates have not been changed under s107.
  3. The authors of Adams on Criminal Law- Sentencing[10] made a similar observation that:

“Section 107 retained the disproportionality test expressed in Turner and Roberts as the essential element. Unless the Court is satisfied that the test is met, the discretion to discharge without conviction under s 106 cannot be invoke: Hughes at [23]; Blythe at [9]. However if the test is met, it is open to the Court to decline to exercise its discretion to grant a discharge (for example, if there is a need for general deterrence or a history of persistent offending makes this inappropriate.

The proportionality test is not a matter of discretion but a matter of fact requiring judicial assessment: H (CA680/11) v R [2012] NZCA 198.”

  1. In DC (CA 47/13) v R[11] the NZ Court of Appeal echoed what Hughes said and again reaffirmed that a sentencing judge has the discretion to discharge without conviction a person who has pleaded guilty to an offence. However that discretion must not be exercised unless the court is satisfied that the direct and indirect consequences of the conviction will be out of all proportion to the gravity of the offence.
  2. The Court of Appeal in DC v R stated that:

“The inquiry is two staged. At the first stage it is necessary to consider the gravity of the offence, the direct and indirect consequences of the conviction and whether the consequences are out of all proportion to the gravity of the offence. In a composite way, this is the jurisdictional test. The second stage of assessing what is a residual discretion is only engaged if that jurisdiction is established.

  1. More recently in the case of Thompson v Police[12] it also applied the 3 step test in a similar manner.
  2. As evident from the above, the 3 step approach we have adopted still applies in NZ which has similar provisions to our ss 69 & 70 SA.
  3. I will now turn Lauina, to determine whether you should be granted a discharge without conviction under ss 69 and 70 SA by applying the 3 step approach canvassed above.

Gravity of the offending

  1. As the above cases show[13] in assessing the gravity of the offence I must take into account the aggravating and mitigating factors relating to the offending and you Lauina as the offender and any other relevant factor that might affect the Court’s assessment of your overall culpability to assess the gravity of the offence.[14]
  2. Negligent driving causing death is the most severe of traffic offending under the RTA. The gravity with which Parliament views the nature of this offence is evident in the penalty imposed under the RTA of 5 years imprisonment or a fine of not more than $2000.
  3. The result of your negligent driving when you fell asleep at the wheel due to your fatigue state is the loss of life of a 23 year old daughter; that loss is irreplaceable. The family of the deceased is still sadly mourning their loss. This was not a case of momentary inattention or a lapse of judgment. The enormous consequence of your negligence is clearly a relevant consideration in weighing the gravity of your offending.
  4. You have however as evidenced in the mitigating factors, done all that you can to repair and remedy the hurt on the family of the deceased by performing the ifoga and substantial presentation of faaaloaloga at her funeral. The deceased’s family in accordance with our christian and cultural values has forgiven you.
  5. The degree of culpability on your part Lauina cannot be said to be on the lower end by any measure. When you made a manifest conscious decision to get behind the wheel to drive from Vaivase –uta to Faleolo airport with your grand children to pick up your son, knowing full well you were fatigue and not physically alert, you immediately posed a serious risk to yourself, your grand children and other road users.
  6. Your negligence was compounded or aggravated by the fact that even when you knew you were sleepy whilst driving, you continued to drive instead of pulling over on the side of the road to have a short knap. But you eventually fell asleep whist the van was still moving. I hasten to say the severe head injuries sustained by the deceased causing her death suggests you must have been speeding at the material time when the van veered of the off. Had you not as you told the Court, the injuries sustained by the deceased might not have been that severe.
  7. Having weighed all relevant factors, I am of the view the gravity of the offence and your offending was serious.

Direct and Indirect Consequences of conviction

  1. The threshold test for consequences that are to be taken into account and the operation of the proportionality test were explained in I v New Zealand Police:[15]

“[34] ... it is not necessary for the Court to be satisfied that the identified direct andrect consequences would ined inevitably or probably occur. It is sufficient if the Court is satisfied there is a real and appreciable risk that such consequences would occur.”

  1. Your counsel argues that the direct and indirect consequence of a conviction on you would be the loss of your position as board director for SSC and therefore the end of your “lucrative career”.
  2. He relies on s 15 & schedule 3.1.1(b)(v) Public Bodies Performance Act 2015. This provision disqualifies a director from being appointed or reappointed if convicted of an offence punishable by death or by imprisonment for a term of 2 years or more. The CEO of SSC confirms you have been a board director since 24 February 2016.
  3. I disagree with your counsel’s assertion that you have had a lucrative career as a board member as you have only been a board director for less than 15 months now. I also bear in mind it is not a full time job and the board sits once a month. In saying that it is not my intention to downplay the importance of the role you hold as director. You are retired. Your appointment on the SSC board continues your service to government and the public. Like other board directors, you get an annual allowance of $18,500. I have no doubt this role keeps your mind active apart from other duties you perform at home, church and village.
  4. But the fact of the matter is you have committed a serious offence. Whilst I accept there is a “real or appreciable” risk that such consequence will occur of your being removed from the SSC board given the mandatory provision in 69 above, such risk comes with the territory.
  5. In Roberts v Police[16] the NZ High Court there said that:

“...where a statutory body screens applicants for admission to an occupation, the risk to a person’s career is unlikely to be sufficient in itself to justify a discharge, since there is a public interest in the statutory body knowing about the discretion and exercising its discretion accordingly”.

  1. I venture to say this equally applies to your situation Lauina. A risk to your position as a director does not of itself justify a discharge.

Whether consequences of a conviction is out of all Proportion to the gravity of the offending

  1. I am of the view having considered all relevant circumstances of the offence and your offending that the direct and indirect consequences of a conviction is not out of all proportion to the gravity of the offending.
  2. Therefore the three step test has not been met and I will not exercise the discretion under s 69 SA to discharge you without conviction. To allow a discharge without conviction for an offence that is not trifling in nature but serious will be to send the wrong message out to the public; that it is okay for you and other drivers to fall asleep whilst driving causing an accident and death to someone and walk away with a discharge. I will not do that. It is not in the interest of justice or public to do so.
  3. This brings discussion to an appropriate sentence for you.

Appropriate sentence

  1. Lauina, having regard to all the aggravating and mitigating factors of the offence and you as an offender, I am of the view a custodial sentence is inappropriate. In saying that I have 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.
  2. I must bear in mind the sentencing principles under s.6 SA and the public interest for deterrence and denouncing the conduct you were involved in. CJ Sapolu in P v Siaso[17], emphasised the need for deterrence when passing sentence in cases of negligent driving causing death because of the prevalence of this kind of offending.
  3. Your counsel at paragraph 27 of your submissions put forth that there was no need “to dwell on the need for deterrence in this situation as it is a one off situation unlikely to be repeated by you” With all due respect, we are here not only concerned with specific deterrence subjective to you but also general deterrence. The public interest expects it. This is not a trivial offence.
  4. As alluded to above, a life has been lost as a result of your negligence. But I also accept that you did not plan for the incident to happen. You were tired and fell asleep. But as I said above, once you knew, you were not as alert given your sleepiness you should have pulled over on the side of the road and have a rest. It is very simple logic.
  5. It is a lesson for you and every other driver. If you are tired and know you have been sleep deprived and not gotten enough rest, do not get behind the wheel. Once you do, you place your life and other road users at risk.
  6. I must balance the above against the mitigating factors in your favour.
  7. You voluntarily reported the incident immediately after it occurred and cooperated with Police during their investigations.
  8. You have taken admirable steps as expected in accordance with our culture and christian values and norms to make amends with the deceased’s family. The performance of the ifoga and gifts presented is a sign of extreme humility and remorsefulness. It helped alleviate the hurt and harm to the deceased’s family from her sudden loss.
  9. The Presentation of faaaloaloga at the lauava is another important factor. The total value of faaaloaloga presented is $10,000 which is not an insignificant sum.
  10. The family of the deceased are going through the healing process. But no amount of reparation or remedial action will bring back a lost daughter. Nothing you or I can say will cure that loss. I know you will live with that guilt for the rest of your life which in itself is a tremendous burden for you to carry.
  11. You changed your plea which has saved time and resources. It spared the deceased’s family from recounting events leading to the death of their loved one. Although delayed, the change of plea still reflects your remorsefulness and willingness to take responsibility for your actions.
  12. I take into consideration your age and the fact you have had an impeccable record and a person of good character as evidenced in the testimonials submitted on your behalf and favourable PSR. You have outstanding personal qualities and have served your family church and village well and with loyalty throughout the years. The offence is out of character.
  13. Lauina, you are at the end of the day a husband, father, grandfather. You are deserving of mercy and leniency.
  14. There are a number of sentences available under the SA I can impose.
  15. Taking into consideration all relevant factors and guidance from previous decisions regarding similar offending where fines were imposed of my brother and sister judges namely, Judge Vaai in his sentencing decision in P v Willie Tialino[18], Judge Tuatagaloa (as they were then known) in P v Chan Sau[19] and Judge Roma in P v Likisone Leilua[20] , I have decided the most appropriate penalty for you is a fine.

The Penalty

  1. Lauina you are convicted and ordered to pay forthwith and by 4pm today the following; in default 3 months imprisonment:
    • - Court fine in the sum of $800;
    • - Prosecution costs of $200;
    • - $300 to probation service to assist with youth programmes.

Total = $1300

JUDGE ALALATOA R VIANE PAPALII

[1]In terms of s.9(1)(e) SA,
[2]A sentencing decision of CJ Sapolu [2014] WSSC 56.
[3]For further illustration on this point see, Rutherford v Papakura District Court 20/9/05 Allan J HC Auckland CRI -2005-404-162.

[4] [2011] WSSC 132 (25 November 2011),
[5][1978] 2 NZLR 233.
[6][1991] 1 NZLR 205, 210 Bisson J
[7][2010] WSSC 122
[8] [2008] NZCA 546, para 16.


[9] Supra n 6 at 209
[10] Updated Abstract 10/11/14 (Brookers and Thompson)
[11] [2013] NZCA 255
[12] [2017] NZHC 76
[13]Hughes, DC v R, and Z (CA447/2012) v R ca/447) [2012] NZCA 599; [2013]NZAR 142 @ 27
[14]Vaai J in Supra n 7
[15] Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; also see Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]; and Currie v Police HC Auckland CRI-2008-404-307, 27 May 2009 at [49].
[16] (1989) 5 CRNZ 34
[17] Supra n 2
[18] Unreported decision delivered on 22 March 2010.
[19] Unreported decision delivered on 2 July 2013.
[20] Unreported decision delivered on 13 November 2015.

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