Police v Tapaleao [2014] WSSC 38 (4 August 2014)

SUPREME COURT OF SAMOA

Police v Tapaleao [2014] WSSC 38

Case name: Police v Tapaleao

Citation: [2014] WSSC 38

Decision date: 4 August 2014

Parties:
POLICE (prosecution) and FATI OPAPO VAALELE TAPALEAO (accused) male of Toamua

Hearing date(s):

File number(s): S2461/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Su’a-Mailo for prosecution
M V Peteru for accused

Catchwords:

Words and phrases:
sentence, manslaughter, aggravating and mitigating features

Legislation cited:
Crimes Act 2013 (s.88) (s.102) (s.108)

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2461/13

BETWEEN

P O L I C E
Prosecution

A N D

FATI OPAPO VAALELE TAPALEAO male of Toamua
Accused

Counsel
L Su’a-Mailo for prosecution
M V Peteru for accused

Sentence: 4 August 2014

S E N T E N C E

1. The accused appears for sentence on the charge of manslaughter, contrary to ss.88 and 102 of the Crimes Act 2013, which carries a maximum penalty of life imprisonment under s.108 of the Act. Initially, the accused was charged with two charges of manslaughter, one charge of dangerous driving, and one charge of drunken driving. The accused pleaded not guilty to all charges on 31 March 2014. The case was then set down for hearing in the week commencing 16 June 2014. Subsequently, there was an indication from the defence of a change of plea. The case was then re-mentioned on Monday, 23 June. On that day, one of the manslaughter charges, the dangerous driving charge, as well as the drunken driving charge were withdrawn by the prosecution. That left only one of the two manslaughter charges. The accused, through his counsel, then vacated his not guilty plea to that charge and entered a guilty plea. The matter was then further adjourned for a summary of facts and pre-sentence report.
2. The charge of manslaughter in this case is often referred to in other jurisdictions like England, Australia and New Zealand as ‘motor manslaughter’. That is because it involves the use of a motor vehicle resulting in someone’s death. In Samoa, this is a new offence created under the Crimes Act 2013. As pointed out in the prosecution’s helpful sentencing memorandum, this case of motor manslaughter is the second of its kind to have come before this Court under the 2013 Act.
3. As it is shown from the prosecution’s summary of facts, on Monday 30 September 2013 at around 3:30pm, a birthday party was held at the Maota Samoa at Vaitele. The accused was attending that birthday party. He consumed beer at the party and became heavily intoxicated.
4. The birthday party ended around 6:00pm in the evening and the accused asked a lady at the party to come with him in his car. That lady declined telling the accused that she did not want to go with him as he was extremely intoxicated. She also warned the accused not to drive his car but to leave it at the Maota Samoa for him to come the next day and pick it up. The accused did not heed the warning but got into his car and drove off.
5. He drove downhill from the Maota Samoa heading seawards to the West Coast Road which is a very busy road going towards Faleolo Airport. When the accused’s car passed the Faatuatua School not far from the Maota Samoa, it was seen to be frequently going off the road. A car which was behind the accused’s car tried to overtake the accused’s car but, as it was doing so, the accused’s car accelerated. The driver of the other car had to steer quickly to the right to avoid the accused’s car scraping the side of his car. This other car then pulled onto the other side of the road.
6. In the meantime, the accused’s car continued to travel down the road at excessive speed often drifting to the side of the road. As the accused’s car neared the junction between the road from Maota Samoa and the West Coast Road, he turned on the indicator to show that he was turning left.
7. When the accused’s car had gone past the Vaitele Market, it was driving at excessive speed in a zigzag manner which caused a whirlwind of dust and gravel. At that time, the deceased was walking along the road carrying his shopping. He had just been to Frankies Supermarket on the seaward side of the road at Vaitele-tai. The accused’s car then went off the road and struck the deceased causing the latter to become airborne while his shopping was scattered on the road. Both legs of the deceased were severed from his body and flew up in the air in different directions. The accused’s car then flipped and spun off the road crashing into an area off the road. The accused was found on the road unconscious and injured.
8. The deceased’s wife who had observed the accident from a distance walked over to where the dead body of the deceased laid without realising that it was her husband. It was not until her three children came over and cried over the dead body of their father that she realised that it was the dead body of her husband.
9. When the police arrived, they took the unconscious accused to the Tupua Tamasese Meaole Hospital for treatment as well as the deceased’s body. The accused was admitted for eight days. The deceased, on the other hand, was found to have suffered serious injuries to the right side of his face and head, his right wrist, his chest, with both his legs amputated.
10. The deceased was 49 years old at the time of this tragic accident. He was married with six children. He was also the main supporter of his family from his plantation and from making and selling handicrafts. His wife and children have suffered greatly as a result of this accident. The death of the deceased has left a huge gap in their lives. The deceased’s wife has also confirmed that the accused’s family had made a ifoga and presented $6,000 and ten fine mats to her and her children. She denies that the accused’s family presented $7,000 and thirty fine mats as the probation service was told.
11. The accused, on the other hand, is 62 years old. He migrated to New Zealand in 1971. He got married in New Zealand and has three children. He is a permanent resident of New Zealand. His wife passed away in Auckland in 2009. At the time of this offending, the accused was visiting his mother and siblings in Samoa and living with his family at Toamua. His family has gathered around him and provided a large measure of support for him. The testimonials from his family, his niece in Australia, his two daughters in Auckland, New Zealand, his former employer in New Zealand, and a friend in New Zealand all show that the accused had been a hardworking, reliable, and responsible person for all his life prior to the commission of this offence. In particular, the testimonials from his two daughters in Auckland show that the accused had been a kind-hearted husband to their mother and a caring, devoted and loving father who had always worked hard to earn enough money to maintain his family and put his children through school. One of his daughters graduated with a Bachelor of Fine Arts from Auckland University.
12. The testimonial from the accused’s former employer in Auckland shows the accused as a person of good character and an outstanding employee. All of the testimonials, including the testimonial from the pastor of the accused’s church at Toamua, show that the accused’s present offending is totally out of character. In fact at age 62, the accused is a first offender. The pre-sentence report also reflects well on the accused.
13. Having considered the testimonials on the accused and the pre-sentence report, I turn to the aggravating and mitigating features of this matter. The aggravating features of the offending are: (a) the excessive consumption of alcohol, though at a birthday party and not a nightclub, prior to driving, (b) excessive speed while driving particularly on the downhill road from Maota Samoa, (c) disregard by the accused of the warning from a lady to leave his car at Maota Samoa for him to return and pick it up the next day, (d) a persistent and deliberate course of very bad driving on a potentially busy road from Maota Samoa even though for a short while before the accident occurred, (e) the resulting injuries to the deceased and his death, and (f) the impact of the deceased’s death on his wife and children. On the other hand, the mitigating features personal to the accused are: (a) his very good history, (b) he is a person of previous good character and at age 62 he is a first offender, (c) the ifoga and substantial presentation made by his family to the wife and children of the deceased, and (d) the guilty plea though somewhat belated.
14. In considering an appropriate sentence, I should also take into account the fact that all too often, for far too long, severe injuries have been suffered and lives have been lost as a result of drunken driving on the roads. The Court must therefore impose deterrent sentences to reflect the public’s concern for safety on our roads. The purpose of such sentences is not only to deter the offender but others from committing offences of this type.
15. Having regard to the need for deterrence, the aggravating features of the offending, and the fact that this is only the second case of motor manslaughter under the Crimes Act 2013 to come before this Court for sentencing, I will take a starting point for sentencing of 7 years. I will deduct 2 years for the accused’s very good history and his previous good character at age 62 and that leaves 5 years. I will deduct another one year for the ifoga performed by the family of the accused and that leaves 4 years. I will deduct 20% or 9 months for the somewhat belated guilty plea and that leaves 3 years and 3 months.
16. The accused is convicted and sentenced to 3 years and 3 months imprisonment. He is also disqualified from driving for 5 years. Any time the accused has already spent in police custody pending the outcome of this matter is to be further deducted from his sentence of imprisonment.
    

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CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution
Maiava Peteru Law Firm, for defendant