Tauai v Police [2002] WSSC 5 (8 March 2002)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Criminal Proceedings Act 1972.

BETWEEN

MIKA TAUAI
of Safotu, Savaii.
Appellant

AND

POLICE
Respondent

Counsel: S Hazelman for appellant
D Potoi for respondent

Hearing: 4 March 2002
Judgment: 8 March 2002

JUDGMENT OF SAPOLU CJ

This is an appeal against sentence from the District Court pursuant to s.138 of the Criminal Procedure Act 1972. The appellant was charged with eleven counts of overloading under s.38A of the Road Traffic Ordinance 1960. The charges may, for convenience, be briefly set out as follows:

1. At Tuasivi on 21 July 2000, the appellant, (the defendant in the District Court proceedings) being the driver of a bus, permitted fourteen (14) adult persons, more than the number of passengers his bus was permitted to carry, to travel in his bus.
   
2. At Salelologa on 4 August 2000, the appellant, being the driver of a bus, permitted fourteen (14) adult persons, more than the number of passengers his bus was permitted to carry, to travel in his bus.
   
3. At Tuasivi on 3 August 2000, the appellant, being the driver of a bus, permitted (19) adult persons, more than the number of passengers his bus was permitted to carry, to travel in his bus.
   
4. At Tuasivi on 16 September 2000, the appellant, being the driver of a bus, permitted nineteen (19) adult persons, more than the number of passengers his bus was permitted to carry, to travel in his bus.
   
5. At Saleologa on 20 December 2000, the appellant, being the driver of a bus, permitted fourteen (14) adult persons, more than the number of passengers his bus was permitted to carry, to travel in his bus.
   
6. At Salelologa on 21 December 2000, the appellant, being the driver of a bus, permitted fourteen (14) adult persons, more than the number of passengers his bus was permitted to carry, to travel in his bus.
   
7. At Saleologa on 23 December 2000, the appellant, being the driver of a bus, permitted eleven (11) adult persons, more than the number of passengers his bus was permitted to carry, to travel in his bus.
   
8. At Salelologa on 24 December 2000, the appellant, being the driver of a bus, permitted eighteen (18) adult persons, more than the number of passengers his bus was permitted to carry, to travel in his bus.
   
9. At Salelologa on 20 January 2001, the appellant, being the driver of a bus, permitted thirteen (13) adult persons, more than the number of passengers the bus was permitted to carry, to travel in his bus.
   
10. At Salelologa on 24 February 2001, the appellant, being the driver of a bus, permitted eleven (11) adult persons, more than the number of passengers the bus was permitted to carry, to travel in his bus.
    
11. At Salelologa on 12 April 2001, the appellant, being the driver of a bus, permitted twenty (20) adult persons, more than the number of passengers the bus was permitted to carry, to travel in his bus.
    

Except for the first charge, the other charges relate to the same bus. Counsel for the respondent told the Court that bus was given a permit to carry only thirty three (33) passengers plus the driver. That would be about the usual number of passengers an omnibus is permitted to carry. The penalty for overloading is imprisonment for 12 months or a fine of $1,000.

When the said charges were called before the District Court the appellant entered a plea of guilty to all charges. The District Court Judge on 18 January 2002 convicted the appellant and sentenced him to six (6) months imprisonment on each charge, the sentences to run concurrently. The appellant was also permanently disqualified from holding a driver’s licence. The appellant then lodged an appeal on the ground that the sentence is excessive having regard to all the circumstances.

From the Judge’s sentencing notes, His Honour took into account in mitigation the appellant’s plea of guilty. He also referred to the appellant’s apology but did not accept the apology because of the appellant’s long record of previous convictions for traffic offences. On the other hand His Honour also took into account the need for the safety of passengers travelling in a bus and the safety of the travelling public in general, the prevalence of this kind of offence within the community and the appellant’s long record of previous convictions for traffic offences which dates back to 1991. In referring to the appellant’s previous convictions, His Honour stated that those previous convictions show a complete and deliberate disregard by the appellant of the traffic laws of this country.

Counsel for the appellant made a number of submissions in support of the appeal. I will refer only to the principal submissions. It was submitted that in three previous cases of overloading, the District imposed only fines ranging from $100 to $200. Thus the approach taken in this case is quite inconsistent with the penalties imposed by the Court in those cases. It was also submitted in relation to the appellant’s previous convictions that overloading is a far less serious offence than say the offence of negligent driving causing injury in respect of which a different defendant was convicted and fined last year. It was also pointed out that the appellants previous convictions were mainly for overloading and other less serious traffic offences but the appellant has never been convicted of any serious offence like speeding, careless driving or negligent driving causing injury or death. It was further pointed out that the appellant was normally the only bus driver to service the Salelologa wharf when the last boat arrived from Upolu, and normally the only bus driver to service the Salelologa to Sasina route after the last boat from Upolu. Because of the number of passengers who travel that route, counsel submitted that it is unrealistic to expect the appellant to tell passengers to get off his bus when his bus is the only bus to service the Salelologa to Sasina route at the time of the last boat from Upolu. Counsel also stated that on a number of occasions, the police would charge the appellant with overloading but allowed the appellant to continue with his passengers as there was no other bus. It was also pointed out that the appellant is not well and needs medical attention so that six months in prison could have major adverse effects on his health.

Counsel also addressed the disqualification part of the sentence. She submitted that bus driving has been the appellant’s means of a livelihood for over ten (10) years. His permanent disqualification from holding a driver’s licence has deprived the appellant of his means of a livelihood for life. Furthermore, the disqualification is general and it means the appellant will not be allowed to drive any kind of vehicle forever. It was then submitted that a lesser term of imprisonment only will be a more appropriate penalty.

Counsel for the respondent on the other hand supported the penalties imposed by the District Court. He submitted that the appellant’s numerous previous convictions show his complete disregard for the traffic laws. He also submitted that a deterrent sentence was called for in this case given the public interest in ensuring the safety of the travelling public, the fact that the appellant is a repeat traffic offender, the prevalence of this kind of offence and the number of charges in this case. Counsel also referred to a traffic case where a defendant was charged in the District Court with two counts of overloading in 1997 and was convicted and sentenced to one month imprisonment.

Now in this appeal there are eleven charges of overloading. The number of excess passengers in relation to each charge was substantial given the number of passengers a bus is normally permitted to carry. The safety of the passengers and the travelling public in general, particularly if an accident occurs, is a relevant consideration the lower Court was entitled to take into consideration. The maximum penalty of 12 months imprisonment or a fine of $1000 reflects the seriousness with which the legislature regards this offence. The appellant has 228 previous traffic convictions dating back to June 1991. Of these previous convictions about 186 were for overloading, 16 for obstruction and 25 for failing to comply with a traffic sign. The appellant’s past record speaks for itself. It plainly demonstrates that the appellant has no respect whatever for our traffic laws. The appellant is plainly due for a sentence of imprisonment. And a deterrent sentence is called for not only to deter the appellant from continuing to abuse our traffic laws, but to deter other bus drivers from doing the same. I also accept that overloading is one of the most prevalent offences that come before the District Court. The Court is also entitled to take into account the totality principle in passing sentence in this case where there are eleven separate charges of overloading.

I have also looked at the other traffic offences of speeding, careless driving and negligent driving causing injury or death mentioned by counsel for the appellant in her submissions. Except for the last-mentioned offence, the penalties provided for speeding and careless driving are much less compared to the penalty for overloading. I also have serious reservations that the appellant’s bus is the only bus that services all the many villages between Salelologa and Sasina at the time of the last boat from Upolu to Salelologa. I also do not think that all the passengers the appellant’s bus was carrying were for the village of Sasina. Some, if not most of the passengers, must have been for other villages between the Salelologa Wharf and the village of Sasina. Whilst the appellant’s bus might have been the only bus to service the Salelologa/Sasina route, there must have been other buses serving other villages between Salelologa and Sasina at the time of the last boat from Upolu. But even if that were not so, the appellant must have known from his previous convictions that it was unlawful to carry more passengers than his bus was permitted to carry. For him to do so, he was with full knowledge, based on his previous convictions for overloading, breaking the law and taking the risk of being charged and convicted again of overloading, which can lead to a more expensive result than the monies he was earning from the excess passengers, there being no evidence such passengers travelled free in the appellant’s bus.

The impression I got from counsel’s submissions is that the appellant could not reject the excess passengers otherwise there will be no transport home for them. I would have been inclined to accept that part of counsel’s submissions in mitigation of penalty if it was not for the fact that the appellant has already had about 186 previous convictions for overloading over the last ten years and 228 previous traffic convictions in total. This must be one of the longest list of previous traffic convictions to come before this Court on a traffic appeal from the District Court. I am not able to accept the reason given for the overloading. But even if the reason were true, I am still of the view the appellant must go to prison. I find the term of 6 months imprisonment imposed by the District Court Judge not to be excessive.

Turning now to the permanent disqualification from holding a driver’s licence, I am of the respectful view this part of the sentence is excessive having regard to the fact that the appellant will be deprived for life from his principal means of earning a livelihood and he will not be able to drive any kind of vehicle for the rest of his life. I will allow this part of the appeal but I hope what has happened in this case will bring home to the appellant the seriousness of his actions and how they can impede his life. I will impose a term of disqualification of 3 years and set aside the permanent disqualification. I hope this will sound a serious warning not only to the appellant but to other bus drivers.

Counsel for the appellant also referred to three previous cases for overloading where the District Court imposed monetary penalties and submitted there is inconsistency between those penalties and the sentence imposed in this case. I do not have the circumstances of those cases before me. I also do not know whether the defendants in those cases had long lists of previous convictions as the present appellant has. So it is not clear why the District Court imposed those sentences. It is a cardinal principle of criminal sentencing that the sentence must suit the circumstances of the case at hand. No two cases have the same facts. The facts may vary quite markedly from case to case, so one would expect to find differences in sentences imposed for the same kind of offence in different cases even though the same sentencing approach is applied. I accept the submission by counsel for the appellant that there should be consistency in sentencing approach to offences of the same kind. But consistency in sentencing approach does not mean the same thing as consistency in results. As I have already stated, no two cases have identical circumstances, and the circumstances of one case may differ quite markedly from that of another although the defendant in each case is charged with the same kind of offence. So differences in sentences are to be expected even if the Court is consistently following the same sentencing approach. Provided the sentence is not too lenient or manifestly excessive having regard to all the circumstances of the case at hand, it will be upheld on appeal. Given the circumstances of the present case, the sentence of 6 months imprisonment imposed in the District Court is not excessive but the period of permanent disqualification from holding a driver’s licence is excessive and is reduced to 3 years.

As for the submission that the appellant is not well and needs medical attention, I make the order now that the prison authorities provide the appellant with the necessary medical attention should that be needed during the duration of the appellant’s term of imprisonment.

All in all then, the appeal is allowed in part by reducing the permanent disqualification from holding a driver’s licence to 3 years.

CHIEF JUSTICE

Solicitors:

Stevenson & Mitchell for appellant
Attorney General’s Office for respondent