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Police v McCarthy [2021] WSDC 11 (11 February 2021)

IN THE DISTRICT COURT OF SAMOA
Police v McCarthy [2021] WSDC 11 (11 February 2021)


Case name:
Police v McCarthy


Citation:


Decision date:
11 February 2021


Parties:
POLICE (Informant) v ANDREW NUUAUSALA FAUMUINA MCCARTHY (Defendant)


Hearing date(s):
03 September 2020


File number(s):



Jurisdiction:
District Court – CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Atoa-Saaga


On appeal from:


Order:
You are hereby imprisoned for four months and you are also disqualified from driving any vehicle for a period of two years.


Representation:
Ms. Titi for Prosecution
Mr. Lesa for Defendant


Catchwords:
Negligent driving causing injury – influence of alcohol – driving licence – convicted – custodial sentence.


Words and phrases:


Legislation cited:


Cases cited:
R v Boswell [1984] 3 ALL ER 353
R v Guilfoyle [1973] 2 ALL ER 844
Mapesone v Police [2003] WSSC 41 (6 October 2003)
Police v Taoai [2002] WSSC 5
Police v Saimoni [2017] WSDC 16.


Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


A N D:


ANDREW NUUAUSALA FAUMUINA MCCARTHY male of Vailoa, Faleata.


Defendant


Representation: Prosecution represented by Ms. Rexona Titi

Defendant Represented by Mr. Arthur Lesa


Sentence Hearing: 3rd September 2020
Sentencing Decision: 11th February 2021


SENTENCING DECISION OF JUDGE ATOA-SAAGA

CHARGES

  1. Andrew Nuuausala Faumuina Mccarthy, you appear for sentencing after pleading guilty to the following charges:

THE ACCUSED

  1. You are a thirty six year old male currently employed by Samoa Stationary and Books (SSAB). You have been working at SSAB since June 2019. Prior to that, you have worked for various Government Ministries, Non Government Agencies and Companies since you finished National University Preparatory Year in 2001 both as a full time employee and as a volunteer. You were also awarded a scholarship at the University of Auckland in 2018 for a year.

THE VICTIM

  1. The victim is a 24 year old male from Ululoloa. He is a University Student majoring in Engineering in Australia.

THE OFFENDING

  1. You accepted the Summary of Facts dated 25th February 2020 with some amendments in the latter parts of the Summary of Facts.
  2. On Saturday 26th October 2019 at approximately 7.30pm, you were driving through Tuanaimato in a Silver Toyota Passo with a registration number of 20514.
  3. The victim and a friend were jogging on the street footpath at SIDs Tuanaimato.
  4. The victim was jogging behind his friend on the other side of the road on the footpath when the vehicle you were driving hit the victim. He fell onto the road.
  5. As amended, you stopped the vehicle and immediately called an ambulance.
  6. You remained by the side of the victim until the ambulance arrived.
  7. You fully cooperated with the Police by informing them of the incident.
  8. You cooperated also with the Police when asked to undertake a blood test.
  9. The test revealed that you had 81 micrograms of alcohol.
  10. An evidential test was subsequently carried out and revealed a result of 80 micro grams of alcohol.

AGGRAVATING FEATURES OF OFFENDING

  1. You were driving under the influence of alcohol. The initial and subsequent test revealed that you had double the amount of micrograms over the legal limit when you were driving your car.
  2. The victim was a pedestrian. The vehicle you were driving hit the victim whilst he was jogging on the footpath near the SIDs compound at Tuanaimato.
  3. The victim sustained severe head injuries which resulted in memory loss, cognitive difficulties and headaches. The victim also sustained a fracture to the right ankle, abrasions about the body and around the arms and a dislocated shoulder.
  4. The victim was taken to New Zealand for further examination and treatment.
  5. A report dated 4th February from the Physiotherapy who examined him stipulated that the victim had difficulties with his memory and retaining new information. He is susceptible to headaches and irritability and experiences mood swings. He is fatigued after 30 minutes of activity and his headaches can last from half a day to the entire day.
  6. An excerpt of the report from Freemans Bay Medical Centre dated 23rd June 2020 further stipulates that, “MRI Brain Scan on 15 January 2020 confirms diffuse axonal nerve injury, throughout the brain and along the corpus callosum, particularly on the left side. This is a significant brain injury. It is expected that Mr Lei Sam will have ongoing cognitive and motor dysfunction for a protracted time. He would not be expected to work for the following two years.”
  7. The victim was an aspiring engineer. The injuries sustained has incapacitated him to the point where he is unable to look after and care for himself. According to the victim report dated 10th March 2020, one of his is sibling had to take time off her studies in Australia to care for her brother and to assist her parents who are his primary care givers. To date, he is still undergoing rehabilitation.
  8. The family has spent over $30,000 on the victim’s rehabilitation process and to date, continues to support him financially.

MITIGATING FEATURES OF THE OFFENDING

  1. According to the Pre-Sentence Report, you had drinks with your friends from 4pm at Birdies at Tuanaimato. At around 8pm you all left as some of your friends wanted to visit the RSA nightclub. You followed behind your friends and despite being intoxicated, you were still cognizant of your surroundings. You were shocked when your vehicle hit the victim. Your side mirror was damaged as a result of the impact. You did not know where the victim was prior to the incident.
  2. There are two conclusions that I can infer from your version of the events. In mitigation, it can be inferred that the victim ran in front of your vehicle by surprise or as an aggravating factor, you were not as cognizant of your surroundings as you had believed because you were intoxicated at the time. I am inclined to accept the latter conclusion on the facts before me.

AGGRAVATING FEATURES AS AN OFFENDER

  1. You do not have any aggravating features as an offender.

THE MITIGATING FEATURES AS AN OFFENDER

  1. You are a first offender.
  2. Pre-Sentence Report informs the Court of your employment and educational history. You have a good employment record and you are a well-educated individual.
  3. Pastor Nouata Saifoloi speaks of a committed church member who is reliable and trusted with any responsibility. You are kind and willing to assist any person in need.
  4. Your mother cried when she was interviewed by Probation Services and apologised for your wrongdoing. She testified that she relies on you for financial and moral support and she seeks the Court leniency in sentencing you.
  5. Pre-Sentence Report confirms that you and your parents have made several attempts to visit the victim and his family. The family declined any visits or any assistance from you and your family. The Victim Impact report prepared by the mother of the victim confirms that she had declined any visitation from you and your family as they are still grieving and distressed over the accident and their son’s injuries.
  6. You have also written a letter of apology to the victim. Your letter reads as follows, “I am sorry. My carelessness my disregard for the rule of law, my attitude towards life, caused you and your loved ones’ pain. Physically, spiritually and mentally. I am sorry, for putting you and your loved ones through so much which no one deserves. Rex, because of my actions your future as a brilliant civil engineer, was in doubt, the potential you have as a professional, as a young man and as an adult, to become a father was in jeopardy. Because of me.”
  7. You have also apologised to the victim’s siblings, parents and family in your letter.

SUBMISSIONS

  1. Prosecution submits that there must be a custodial sentence given the aggravating features of the offence. Prosecution submits that the aggravating features of the offence are:
  2. Prosecution conceded that your guilty plea should be taken as a mitigating factor.
  3. Prosecution refers the Court to R v Boswell [1984] 3 ALL ER 353 and R v Guilfoyle [1973] 2 ALL ER 844. Both cases involved dangerous driving causing death. Prosecution submits that a starting point should be 6-12 months and an uplift by 1-3 months for the charge of driving under the influence.
  4. Defence Counsel made oral submissions on your behalf. He referred to the amended summary of facts in which it is stipulated that you had stayed with the victim and that you had contacted the Ambulance. You also tried to improve the position of the victim to enable him to breathe properly and waited by his side until the ambulance and the medical staff arrived.
  5. You fully cooperated with the police also by providing a report of the accident and willingly undertook a breathalyser test.
  6. You have also written a letter of apology to the Victim and his family and you are truly remorseful for your actions.
  7. Defence Counsel seeks the Court consideration of a non-custodial sentence. He informs the Court of your commitment to assist the victim and his family with his rehabilitation financially and spiritually. If you are to be imposed a custodial sentence, you will not be able to assist financially.
  8. It is further submitted that an appropriate sentence is a sentence of supervision and a referral to a program to address the issue of alcohol consumption.

DISCUSSION

  1. In sentencing you, I am guided by Section 6 of the Sentencing Act 2016 which stipulates each of the principles of sentencing which I must consider which includes the gravity of your offending, your culpability and the seriousness of this type of offence as indicated by the maximum penalties prescribed for this offence.
  2. In deciding what the appropriate sentence is, I must take into account the general desirability of consistency with appropriate sentencing level and other means of dealing with defendants in respect of similar circumstance
  3. In saying that, I do agree with Justice Doherty observation in Mapesone v Police [2003] WSSC 41 (6 October 2003) in which he agreed with what Chief Justice Sapolu stated in Police v Taoai [2002] WSSC 5 that, “Consistency in sentencing approach does not mean the same thing as consistency in results."
  4. The Court has imposed both custodial and noncustodial sentences for negligent driving causing injury. Predominantly in almost all cases, the Court has imposed a fine as a penalty. It appears also that the majority of the cases did not involve alcohol but was committed because of a misjudgement on the part of the Defendant.
  5. In Mapesone v Police[1] and Police v Saimoni [2017] WSDC 16 where custodial sentence were imposed, the overriding consideration in the imposition of a custodial sentence in both cases was deterrence. In Mapesone v Police, the traffic offence that was prevalent at the time was bus overloading and the Defendant was charged with both negligent driving causing death and injury. In Police v Saimoni, the most aggravating feature was the recidivist behaviour of the Defendant. He has been convicted and sentenced for traffic offences on 35 occasions.
  6. There has been a prevalence of offences relating to the consumption of alcohol and driving under the influence in the past few years in the District Court. This matter highlights the adverse effects of driving under the influence at its worst and the significant impact on the victim, the family and the community.
  7. In sentencing you, I need to consider any information concerning the effect of the offending on the victim and to hold you accountable for the harm done to the victim and the community.
  8. Having considered all the circumstances of your offending, the most aggravating features of the offending are your driving under the influence of alcohol and the seriousness of the injuries sustained by the victim by which he still suffers to date. I consider the gravity of your offending as serious and culpability high.
  9. Probation Services has recommended the payment of a fine. You have also through Counsel requested an opportunity to make a financial contribution towards the rehabilitation of the victim.
  10. Prosecution has requested not only a custodial sentence but also reparation for the victim without stipulating any amount.
  11. According to the Victim impact report prepared by the mother of the victim, the family has already spent $30,000 and to date, continues to financially assist the victim with his rehabilitation. There are no documents to substantiate what a reasonable amount is to be paid given that to date, the victim is still undergoing recovery process. Similarly, the victim impact report ends with,
  12. In my view, the overarching consideration is deterrence. We need to curb the problem now of people driving on the road intoxicated. The Court needs to send a stern message to all drivers who have consumed alcohol to act responsibly and not to drive any vehicle.
  13. After due consideration, I have decided that the most appropriate sentence is a custodial sentence. Whilst deprivation of your liberty may seem harsh and excessive, the appropriateness of this sentence must be weighed against the deprivation of the health, future and dreams of the victim.
  14. Similarly, the custodial sentence signifies the seriousness of injuring someone whilst driving under the influence. Whilst I do consider that there was no intention on your part to inflict injury when you got behind the wheel, the fact that you were driving under the influence denotes your lack of appreciation of the risks associated with driving whilst incapacitated with alcohol. This should also serve as a warning to any person who decides to drive whilst under the influence. It is also not the length of the custodial sentence but the imposition of the custodial sentence that will have a profound impact on you and every person that comes to the Court hereinafter given that the Court has in the past imposed fines for almost all negligent driving causing injury cases including alcohol related matters.
  15. Secondly I am not going to order the payment of a reparation to the victim as both Prosecution and Probation Services have provided paucity of information and documentation on reparation amount. Similarly, I am making this determination on the basis that the victim has a legal avenue available through a civil claim for personal injuries.
  16. Prosecution has recommended a starting point of 7 months-15 months for the lead charge of negligent driving causing injury.
  17. I will impose a starting point of 10 months for all aggravating factors of the offending, mitigating factors and the need for deterrence. There will be no uplift as there are no aggravating features as an offender.
  18. I will deduct three months for your prior good record and good character
  19. I will deduct three months for your guilty plea and your remorsefulness which is reflected in all your actions taken after the fact including an attempt to apologise to the victim and his family. In total you are hereby imprisoned for four months.
  20. In respect of the charge of driving under the influence you are convicted and discharged as I have considered driving under the influence as an aggravating factor under the lead charge.
  21. You are also disqualified from driving a vehicle for a period of two years.

JUDGE ATOA-SAAGA


[1] [2003] WSSC 41

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