Mapesone v Police [2003] WSSC 41 (6 October 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

FALETAGALOA MAPESONE,
Theological Student of Piula
APPELLANT

AND:

POLICE
RESPONDENT

Counsel: Mr H. Schuster for prosecution
Mr A. Roma for the defendant

Decision: 6 October 2003

DECISION OF JUSTICE DOHERTY ON APPEAL AGAINST SENTENCE

This is a general appeal pursue to section 138 of the Criminal Procedure Act 1972 from a sentencing decision of the District Court.

The defendant was the appellant in this case. He was convicted after a defended hearing, the District Court hearing all of the evidence. The District Court ultimately rejected the defendant’s evidence and accepted that of the prosecution witnesses and in particular the eye- witnesses of the prosecution who were supported by independent evidence of the accident scene and locations of vehicles and debris. Effectively the District Court found negligence on the part of the appellant in that the bus that he was driving was overloaded; it was travelling too fast, in fact well beyond the speed limit; it had veered on to the wrong side of the road and into the path of an on-coming taxi driven by the deceased.

Two charges had arisen. Two charges were found to be proved. The first being negligent driving causing death and the second negligent driving causing injury. The Court imposed a twelve (12) months sentence of imprisonment in relation to the negligent driving causing death and a concurrent sentence of six (6) months imprisonment for that relating to negligent driving causing injury. There were also periods of disqualification and orders for defensive driving courses to be undertaken.

The Court had particular reference to the horrendous consequences of the appellant’s driving and in particular had reference to the victim impact report of the passenger who was injured. She had bad lacerations, she had a number of surgical interventions, she was admitted to hospital for three (3) weeks, she continues to suffer from pain, she lost vision in her eye and she has missed school work because of her repeat need for care. In sentencing the appellant the Court took into account all of the aggravating and what it thought were the mitigating factors. Those have been helpfully set out by counsel for the appellant and in his memorandum or submissions on behalf of the appellant. In particular the aggravating features taken into account by the sentencing Court were: the seriousness of the charges, the prevalence of the offence, the speed which the defendant had driven and the force which the vehicles had collided, the fact that the bus was overloaded the consequential loss of life and the injuries, and the higher degree of responsibility and greater care that the defendant should have exercised.

In mitigation there were the facts that: the appellant was a first offender; he is of good background; he is of a good family; his mother petitioned on his behalf; the probation report and counsel’s submission referred to formal apologies to the deceased’s family; the contribution of the Theological College at which the appellant was attending, by way of recompense to the family; the fact that he has achieved educationally; and that particularly there will be a marked impression by any custodial sentence on his ability to complete his chosen vocation, and that is to be an ordained priest within his church.

The real question in this appeal is whether a sentence of imprisonment of twelve (12) months is manifestly excessive, (even given the aggravating features) where the defendant exhibits the number and type of mitigating factors, he does. That is, a first offender, he has a good character, he has a good future etc. It is accepted by counsel that no new matter has come before this Court for it to consider.

It is not the role of any appellant court to impose its sentence. The appellant court can only sentence if it decides that the lower court sentence was manifestly excessive and ought to be interfered with.

The major factor, it seems to me in reading the sentencing notes of the lower Court such as they are, is the emphasis upon deterrence. It seemed to the lower Court that there is a prevalence of overloaded buses being driven recklessly and dangerously in this country and a need for the courts to do their part to stamp it out by imposing deterrence sentences. It is to be noted that the use of the words "reckless" and "dangerous" were in the forefront of the Judge’s mind.

The probation service itself provided a report. In it presented the history and the background of the appellant. Significantly that report under pinned the notion of prevalence of this type of offending in this country. The report itself said this "these types of offences are becoming too prevalent in Samoa due to the negligence of drivers on the road and many lives have been lost while others have been injured. Therefore the court must impose appropriate penalty to deter others from committing offences." That does not talk about public transport driving in particular but generally driving in this country.

The District Court is the Court in which these types of problems come before the judicial system and the District Court is entitled to take into account that particular offences are becoming prevalent generally, or in a particular area, and the District Court is entitled to take the view that there should be stern action that may have to be taken to combat this prevalence of offending. Generally, the principles of sentencing in any criminal court are to include principles such as denouncing the conduct of particular offenders, to make them personally accountable for their actions, to impose a personal deterrent on a particular offender or, to give a general deterrent to the community at large, and also to rehabilitate offenders where that is appropriate.

The Court has been assisted by the careful submissions of counsel A major thrust of the appellant’s case is that the Court needs to be consistent in its approach to sentencing for offences of the same kind. The Court has been referred to a schedule of cases by counsel for both the appellant and the respondent. They list the sentences imposed in the District Court for this type of offending since March of 2001. The sentences imposed ranged from fines of one quarter of the maximum fine, that is a fine imposed of $500, for a first offender who pleaded guilty and had made the traditional amends to the family to a sentence of eighteen (18) months imprisonment for a defendant with a number of previous convictions for negligent and dangerous driving even though that offender had pleaded guilty.

Significantly, the seriousness upon which each lot of offending and sentence was viewed by the court is under-pinned in each case where there is a fine; a sentence of imprisonment was to take effect if that fine was not paid. It is notable also from the schedule produced that the sentences of imprisonment seemed to have been imposed more frequently in the District Court since June of 2002.

The submissions of counsel tend to confirm the principle that was set out by this Court in a judgment of the Chief Justice in Taoai -v- Police [2002] WSSC5 (8^th March 2002). I can do no more than refer to the part of the judgment referred to me and quoted by counsel -

"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 is consistency in results."

I tend to agree with that statement.

That judgment incidentally is also significant for the acceptance by this Court that one of the aggravating features that appears in the appellant’s case, namely the overloading in vehicles, "is one of the most prevalent offences that come before the District Court."

The general sentencing principle which seems to have been elevated by the sentencing judge in the District Court relates to the public safety and ensuring that those who travel by bus on the roads of this country are entitled to do so safely. Those who drive those buses are charged with the duty of ensuring that people do travel safely. To reinforce that principle the Judge’s primary emphasis, as I have said, was on general deterrence. That is, a clear message to those who operate and drive public transport vehicles other than in accordance with the standards set down by the legislation and where their actions caused the horrendous consequences such as those evidenced in this case, they can expect a stern response from the Court. Of course any application of general principle has to be balanced. In that case that was done. Counsel has been unable to point to any factor for or against the position of the appellant that was not taken into account.

In view of the significantly aggravating features of the driving itself (which of course means the appellant’s culpability) which was viewed as high by the sentencing Court and taking that into account the principle of general deterrence and the fact that there could be no credit for a guilty plea, it is my view (notwithstanding the mitigating factors) the District Court was entitled to impose a custodial sentence. Indeed, the appellant through his counsel accepted that a deterrent sentence was appropriate, albeit one short of imprisonment. It is the fact of a custodial sentence which will have a dramatic effect on the appellant, not its length.

The maximum sentence that can be imposed on each of these charges is five (5) years imprisonment and/or a fine of $2,000.00. The Court did not say in this case what level of term of imprisonment that it used as a starting point. That is often a useful tool so that the general public as well as a specific defendant can see the credit that courts give to mitigating factors. To have arrived at a final sentence of twelve (12) months imprisonment on the charge of negligent driving causing death after considering the mitigating factors and saying that they "substantially reduced the defendant’s imprisonment term", the Court must have started out at at least fifteen (15) to eighteen (18) months before giving credit for those mitigating factors.

A starting point of even two (2) years imprisonment would have been less than one half of the maximum sentence allowable in the charge of negligent driving causing death. Given the aggravating features even that point could not in my view be seen as manifestly excessive. Stern yes, but excessive no. A credit for the defendant’s personal circumstances and the reparation provided by him through the College, of a quarter to one half of the total starting sentence, particularly when there was no remorse displayed by a guilty plea, is in my view generous. I have personal sympathy for the defendant but my sympathies are not what is at issue. I cannot find that the sentence imposed by the District Court was manifestly excessive.

The appeal is dismissed.

The order made on the 16^th June 2003 staying in the original sentence is quashed.

JUSTICE DOHERTY