Police v Tofi [2014] WSSC 168 (25 August 2014)

IN THE SUPREME COURT OF SAMOA
Police v Tofi [2014] WSSC 168

Case name:	Police v Tofi
Citation:	[2014] WSSC 168
Decision date:	25 August 2014
Parties:	POLICE (Prosecution) TA’AVAO TOFI, male of Nofoalii (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the primary charge of negligent driving causing death you are convicted and sentenced to 2 years in prison. But your time spent in custody is to be deducted from that term. In respect of the charge of negligent driving causing injury. I note that the injuries to the victim according to the documents before me were quite significant. Also that the car involved was a write-off. The victim impact report says no ifoga or apology has been conducted. Taking all relevant matters into account including making appropriate deductions for your guilty plea convicted on that charge and sentenced to 18 months in prison. Term concurrent to the other term. In respect of the final charge of unlicensed driving there is no excuse or justification for you to have been driving an unlicensed vehicle. You are convicted and fined the maximum for that offence of $200 payable forthwith in default you will serve an extra one month imprisonment if you do not pay.
Representation:	O Tagaloa for prosecution J Brunt for defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Police v Iosua (judgment dated 02 May 2014) Police v Tapaleao (judgment dated 04 August 2014)
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TA’AVAO TOFI, male of Nofoalii.
Defendant

Counsel: O Tagaloa for prosecution
J Brunt for defendant

Sentence: 25 August 2014

SENTENCE

1. The defendant pleaded guilty to three charges. Vehicular manslaughter is the primary one or causing death while in charge of a motor vehicle. Secondly negligent driving causing injury and the third charge is driving an unlicensed vehicle.
2. The central allegation against the defendant is that he was in charge of a dangerous thing namely a motor vehicle and failed in his duty to use reasonable care in the use of the vehicle. And that this resulted in what is legally now known as culpable homicide by omission. The secondary allegation against the defendant of negligent driving causing injury is in relation to injuring the driver of the ongoing vehicle that the defendant collided with.
3. The police summary of facts says the defendant is a 31 year old male of Nofoalii and Afega married with three children formerly employed at the Faleolo Airport at the engineering section. The deceased is Aquino Pulou Ili Peni, 23 year old single male of Nofoalii. He was at the time of his death employed at the emergency fire rescue division at Faleolo airport. The summary says the defendant and the deceased are in fact cousins.
4. As this court also sits in a coronial capacity I find as Coroner that in this particular matter the deceased Aquino Pulou Ili Peni died at Nofoalii on Saturday 17 August 2013 as a result of fatal head injuries sustained in a motor vehicle accident.
5. The victim involved in the negligent driving causing injury charge is a 33 year old male of Leulumoega-tuai married with 4 children employed at the office of Tokelau Affairs in Apia.
6. The summary of facts from the police says on Saturday, 17 August the defendant was attending a fundraising barbeque for the Catholic autalavou of Nofoalii. The deceased was also attending the same barbeque which started about 10:00 in the morning and finished about 6:00 in the evening. During the barbeque the defendant was using his fathers vehicle to assist with various things. The vehicle was a Toyota Hilux pick-up registration 6950 but at the time was not licensed to drive on the road. During the fundraising event the defendant was involved in delivering barbeque orders to neighbouring villages and throughout the day he had consumed Samoan kava and some beer.
7. The evidence however showed that while he had been consuming at least one or two glasses of beer prior to the accident there was insufficient evidence adduced at a hearing conducted into the matter that he was drunk or intoxicated. There was certainly no evidence that he was so intoxicated that he was unable to be in full control of his vehicle.
8. What the evidence did show is that in the evening close to completion of the fundraising event the defendant left with the deceased to deliver some barbeques. The defendant was driving the unlicensed vehicle, the deceased was sitting as a passenger in the front seat beside him. Their vehicle was at the relevant time travelling towards Apia going back towards Nofoalii. The other vehicle involved was travelling in the opposite direction from Apia to Faleolo and this was being driven by the other victim in this matter.
9. As the vehicles approached each other in front of the house of the faifeau at Nofoalii the defendant unexpectedly turned his vehicle inland. In executing that turn he crossed over into the lane of the oncoming vehicle. The evidence shows that he failed to signal or indicate his turn inland. The oncoming vehicle the taxi tried to swerve away to avoid the accident but too late. A collision occurred and the vehicles careened off to the side of the road. The oncoming taxi was thrown to the seaward side whereas the defendants vehicle swerved inland and hit a lamp post.
10. The force of the impact caused the defendant to lose consciousness. Villagers ran to the assistance of the people involved and the deceased and the defendant were taken to hospital. The driver of the taxi was still conscious and was able to walk out of his vehicle and he too was taken by rescuers to the hospital. The deceased was taken initially to Leulumoega hospital where he was declared dead on arrival and then subsequently to the main hospital. Medical report indicates that the cause of death was hemorrhaging as a result of severe head injuries. The driver of the taxi also sustained injuries to the chest, upper left leg as well as lacerations to his lips, legs and arms.
11. The result of this unfortunate incident are the charges to which the defendant has pleaded guilty. Not many cases of vehicular manslaughter have come before the court. Because vehicular manslaughter was only introduced by the Crimes Act 2013. I believe that Ta’avaos case is the third such case to come before the court.
12. The first one was in relation to a bus that overturned in Savaii while crossing a river that resulted in the death of a 5 year old and a 11 year old, both girls. That was Police v Iosua (judgment dated 02 May 2014). The 11 year trial court sentence on the bus driver was reduced to 7 years on appeal. The second case is Police v Tapaleao (judgment dated 04 August 2014) where a heavily intoxicated driver driving at excessive speed seaward down the large hill at Vaitele was sentenced by the Honourable Chief Justice to 3 years and 3 months in prison.
13. The present case is not similar to those two because it does not involve a bus or other form of public transport being driven by the defendant. Neither is it one where a drunken driver was at the wheel according to the evidence the court heard.
14. In the two previous cases the Court of Appeal in the first used a 6 years starting point for the bus driver and the Chief Justice in the second used a 7 year starting point in relation to the intoxicated driver. This case involves a defendant who was carrying only one passenger and who was on his way back to a fundraising barbeque. There is no evidence the defendant was driving at excessive speed or was displaying any form of reckless or dangerous driving prior to impact. I consider that the circumstances of this case warrant a lower starting point than the 6 and 7 years used in the previous two.
15. Considering all the circumstances I adopt 4 years as the appropriate start point for sentence. That start point must then be inflated to reflect any relevant aggravating factors. In my assessment there are none here that would warrant an upgrade. I think what happened is Ta’avao just misjudged the situation before him. Perhaps he underestimated the speed of the oncoming vehicle. Perhaps he was distracted by wanting to return to the barbeque or by something else.
16. For whatever reason he failed to give way to the oncoming vehicle or to signal his intention to turn inland as he should have resulting in him undertaking the manoeuvre with tragic consequences. And resulting in him by his actions cutting short the life of his younger cousin. Something that I am sure as a mature and responsible person he will have to live with.
17. From the start point of 4 years in prison you are entitled to certain deductions which I will now make. Firstly for you guilty plea one quarter of the term that is a period of 12 months in prison. That leaves a balance of 36 months. You are a first offender with a clean record including a clean traffic record. You were at the time in possession of a valid drivers license. There are many references attached to your pre-sentence report which all speak highly of you. The report speaks of your background of service to your aiga and your nuu and ekalesia etc. All those warrant a deduction of 6 months that leaves a balance of 30 months. Your family has done the right thing and performed an ifoga in respect of this matter. That has been confirmed by the probation office. It is also confirmed in the victim impact report signed by the father of the deceased. That warrants a further deduction of 6 months from the balance of 30 months leaves 24 months in prison.
18. There are no other deductions you are entitled to Ta’avao. On the primary charge of negligent driving causing death you are convicted and sentenced to 2 years in prison. But your time spent in custody is to be deducted from that term.
19. In respect of the charge of negligent driving causing injury. I note that the injuries to the victim according to the documents before me were quite significant. Also that the car involved was a write-off. The victim impact report says no ifoga or apology has been conducted. Taking all relevant matters into account including making appropriate deductions for your guilty plea convicted on that charge and sentenced to 18 months in prison. Term concurrent to the other term.
20. In respect of the final charge of unlicensed driving there is no excuse or justification for you to have been driving an unlicensed vehicle. You are convicted and fined the maximum for that offence of $200 payable forthwith in default you will serve an extra one month imprisonment if you do not pay.
    

JUSTICE NELSON