Police v Keji Li [2017] WSSC 170 (8 November 2017)

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Case name:	Police v Keji Li

Citation:	[2017] WSSC 170

Sentencing date:	8 November 2017

Parties:	POLICE v KEJI LI male of China.

Sentencing date(s):	8 November 2017

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

Order:	- Accordingly, the accused is convicted and sentenced as follows: - (i) a reparation order is made for the accused to pay reparation to Atamamao Tanielu, the wife of the deceased in the sum of ST$10,000.00, bringing the sum paid by the accused to $20,000.00 being the amount she identified as the approximate costs they have incurred. That payment is made on the conditions (a) that sum is to be paid in full within 4 calendar months; (b) it is to be paid in one lump sum payment within that 4-month period; and (c) in default, 6 months imprisonment; and - (ii) the accused is to carry out 200 hours of community work as directed by the Probation Service. - The accused passport surrendered to the Registrar is to be released on satisfaction of his sentence. -
Representation:	L Su’a Mailo for Prosecution L R Schuster for the Accused

Catchwords:	the deceased fell from the bus together with the baby that he was holding

Words and phrases:	gent driving causing the death; Travelling in the opposite direction; the bus was a left hand drive bus; the deceased was a passenger on the bus; seated on the right side at the window immediately behind the ‘spare seat’; the minivan driven by the accused collided with the bus; collision between the minivan and the bus caused significant damage to the right front and side of the bus ripping it open; the deceased’s fall from the bus, he was seriously injured and from those injuries, he subsequently died;

Legislation cited:	Crimes Act 2013, Road Traffic Ordinance 1960; Becroft and Hall's Transport Law (NZ), LexisNexis NZ Limited (OnLine Edition).

Cases cited:	See: R v Day (CA 19 and 22/76, 4 June 1976, Richmond P, Cooke and Woodhouse JJ), New Zealand, the Court of Appeal in R v Ahlquist [1989] NZCA 87; [1989] 2 NZLR 177 (CA), (Police v Gianno [2016] WSSC 4 (15 February 2016); R v Chit Hei Chan [2009] NZCA 528), Police v Siaso [2014] WSSC 56 (14 October 2014), Police v Tofi [2014] WSSC 168 (25 August 2014), Police v Monike, Mapesone v Police [2003] WSSC 41 (6 October 2003) where Doherty J, Seuoti v Police [2006] WSSC 48 (1 September 2006), Vaai J, R v Boswell (1984) 3 All ER 353, District Court in Police v Leilua, Police v Lauina [2017] WSDC 5 (12 May 2017), a Sentencing Decision of Papali’i J, Police v Siaso (supra), Sapolu CJ Ladette v Police (HC, Wanganui AP 7/95, 2 October 1995) [STA55.116] Neazor J, R v Raynor; R v Wing [1995] RTR 119, 125, R v Te Huia (CA 263/80, 5 June 1981); [1981] BCL 637 [STA55.202]; Duncan v Police (HC, Wellington M 706/84, 3 May 1985, Ongley J); [1985] BCL 756 [STA55.208]; R v Clarke [1982] NZCA 11; [1982] 1 NZLR 654 (CA) [STA55.205]; R v Lynn (CA 137/88, 12 July 1988); [1988] BCL 1230 [STA55.220]; R v Banks (CA 280/89, 1 December 1989); [1990] BCL 36 [STA55.226].”

Summary of decision:

[1] Following a defended hearing, the accused was found not guilty of manslaughter involving the use of a motor vehicle contrary to sections 88, 92(2)(b), 102 and 108 of the Crimes Act 2013 (S538/17). The accused however appears for sentence on one charge of negligent driving causing the death of Tanielu Venasio Pati (S543/17) contrary to section 39A of the Road Traffic Ordinance 1960, which carries a maximum penalty of 5 years imprisonment or a fine of up to $2,000.00.

[2] I have set out in detail in my written judgment dated 15 September 2017 the evidence in this matter. In brief, on the afternoon of the 11th March 2017 at approximately 2.00pm, the accused was the driver of a Toyota Estima Minivan registration number R 719 (“the minivan”) on the West Coast Road. He was driving from the west from the direction of Faleolo Airport to the east towards Apia. The weather and road conditions were good.

[3] Travelling in the opposite direction that afternoon from Apia to Faleula was bus registration number M/O 158. The bus was a left hand drive bus. Tanielu Venasio Pati (the deceased) was a passenger on the bus that afternoon. He was seated on the right side at the window immediately behind the ‘spare seat’.

[4] At Puipa’a, the minivan driven by the accused collided with the bus. The collision between the minivan and the bus caused significant damage to the right front and side of the bus ripping it open. When the exterior right side of the bus was ripped open, the deceased fell from the bus together with the baby that he was holding. From the deceased’s fall from the bus, he was seriously injured and from those injuries, he subsequently died.

[5] On the evidence at trial, I was not satisfied that the accused was speeding at the relevant time. I found that even if he was speeding, of which I was not satisfied, it could not nevertheless be said that any excess above the speed limit was “a major departure from the standard of care expected of a reasonable person to whom that legal duty applies in those circumstances”.

[6] In relation to the collision, it was caused by the accused minivan crossing into the bus lane. The collision occurred 0.9 metres or 90 centremetres inside the bus lane. I accepted that the accused crossing into the bus lane appeared to be the result of momentary inattention.

[7] According to the Pre-Sentence Report (PSR), the accused is a 37 year old male of Yong Quan, China where he was born and raised. He is a married father of a 4 year old daughter and a two month old son.

[8] The accused attended the Hua Zhang Technologies University in the capital city of Wu Han. He graduated with a Bachelor of Engineering majoring in Computer Studies. He has been employed with various companies. In 2011, he commenced employment with Huawei Technologies. It is Huawei that brought him to Samoa to carry out work for BlueSky, apparently for network upgrades. According to his affidavit that he filed in support of his application to vary bail conditions, the accused says he has been in Samoa since February this year.

[9] According to the PSR, the accused earns USD$2,000.00 per month. He continues to be employed by Huawei.

[10] The PSR states that there has been a payment of $10,000.00. The payment was confirmed as $8,000.00 having been paid to the deceased’s wife and $2,000.00 to his village.

[11] A number of character references have been submitted in support of the accused. These include from his CEO, Xu Guxian. He has known the accused for 2 years. He says that the accused deeply regrets the incident in which he has become involved, that the accused is highly regarded by all staff, is hardworking, dedicated and committed. He asks for mercy in sentencing. Similar positive character references were provided by Alex Abraham, Country Manager for BlueSky Samoa and Alani Faiai, Director of Techniocal Operations for BlueSky. Both have however only known the accused since he has been in Samoa.

[12] The victim is the deceased. He was 57 years of age from Leauva’a-uta. According to the Victim Impact Report prepared by his widow, the deceased was involved in a cabbage plantation with his wife together with other small businesses that funded their family needs. He was also clearly a much loved father and husband.

[13] The deceased widow and his immediate family are also victims of the accused offending (section 2, Sentencing Act 2016). His widow says that she cannot forgive the accused. She says that she “did not want to look at the victim’s injuries because they were so severe”. This description is consistent with the evidence of Dr Noaese given at trial.

[14] The deceased’s widow confirms payment and that a reconciliation process conducted through the village matais where she was present was carried out. She says in her VIR that the financial impact of the offending was that “they spent almost $20,000.00”.

(d) Whilst the impact of this type of offending will always be suffered by the family of the deceased, the nature of his injuries described by Dr Noaese was particularly severe and traumatic for his wife and family.

[17] There are no mitigating features in respect of the offending. Personal to the accused is his prior good character, the reconciliation process carried out which has included the presentation of $10,000.00. I also take into account his guilty plea, however, that plea was only entered after all the evidence had completed and accused counsel was making closing submissions. Only nominal benefit can therefore be accorded for his guilty plea as the evidence clearly established the accused guilt in respect of the charge that he now appears for sentencing.

[18] In respect of the accused being a foreigner, the fact that an offender is not ordinarily resident in Samoa, that he wishes to return home and that being kept in prison is at a cost to the Samoan taxpayer is not a mitigating factor determinative of the type of sentence to be imposed. To treat people coming from overseas more favourably than local residents would be discriminatory in favour of non-residents and would simply encourage non-residents or foreigners to offend in Samoa (See: R v Day (CA 19 and 22/76, 4 June 1976, Richmond P, Cooke and Woodhouse JJ). In New Zealand, the Court of Appeal in R v Ahlquist [1989] NZCA 87; [1989] 2 NZLR 177 (CA) affirmed the view that this policy must be maintained where it reiterated that offenders should not be differentiated between according to their country of origin. In cases such as this where an accused is a non-resident therefore, that has no bearing in determining whether a sentence will be custodial or non-custodial sentence. It may however be taken into account in mitigation in relation to the length of imprisonment imposed (Police v Gianno [2016] WSSC 4 (15 February 2016); R v Chit Hei Chan [2009] NZCA 528). The reverse also applies. Simply because an accused is a foreigner or non-resident does not mean that he should be treated more severely than a resident or a Samoan. That too would be discriminatory and wrong.

[19] Prosecution seeks an imprisonment term with a start point of 2 ½ years imprisonment. The Court has been referred to various sentencing decisions of the Supreme Court involving negligent driving causing death. In Police v Siaso [2014] WSSC 56 (14 October 2014), the accused was driving at high speed and was affected by alcohol at the time of his offending. The accused was also without a valid driver’s licence and the warrant of fitness of his vehicle had expired and had not been renewed. A custodial sentence of 2 ½ years imprisonment start point was adopted.

[20] In Police v Tofi [2014] WSSC 168 (25 August 2014), the accused was an unlicensed driver who suddenly turned right on the lane that another vehicle was driving. The accused car struck that vehicle, swerved and then struck a lamp post. The victim was a passenger in the accused vehicle. The sentence start point adopted was 4 years. Whilst prosecution submitted that the sentence was for negligent driving causing death, it was in fact sentencing for “vehicular manslaughter” and is therefore not on point for sentencing purposes. The Court’s sentencing approach to vehicular manslaughter is materially different to the sentencing approach for negligent driving causing death.

[21] Prosecution also referred to Police v Monike. No reference was made to the Court that imposed the fine of $2,000.00 for negligent driving causing death and $530.00 for influence of alcohol on breath or what year that sentence was imposed.

[22] In considering the appropriate sentence, I have had regard to other decisions including Mapesone v Police [2003] WSSC 41 (6 October 2003) where Doherty J heard an appeal from a sentence of 12 months imprisonment imposed in the District Court on the driver of a bus. The Supreme Court noted the facts as “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.” Doherty J did not find the sentence imposed as excessive.

[23] In Seuoti v Police [2006] WSSC 48 (1 September 2006), Vaai J stated the general sentencing approach to negligent driving causing death as follows:

“...Since 2002 when the average term of 12 months imprisonment was imposed, the tariff has steadily increased to 18 months and 2 years. And in the cases where fines were imposed a sentence of imprisonment was to take effect if that fine was not paid forthwith; which is again an indication of the view the court had taken, so that for a number of years, due to the prevalence of road accidents, the District Court in which these type of offending are dealt with has been ringing warning bells that stern actions and tough measures will be taken to combat this particular prevalence of offending.

Secondly the sentencing approach reflected in the schedule of sentencing tariffs produced by both the appellant and the respondent is a clear indication that the District Court recognises the two broad categories of cases in this area:

(i) Accidents caused by momentary inattention or error of judgment (commonly known as the lower end of the scale of negligence); and

(ii) Accident caused by driving in a manner which shows selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness (higher end of the scale of negligence).

Where the offending falls within the second category, a custodial sentence is often considered appropriate unless there are very special circumstances. The cases referred to by counsel for the appellant in which the District Court imposed monetary fines fall into the first category...”

[24] I have also had regard to the various more recent sentencing decisions of the District Court. In Police v Leilua, unreported Sentencing Decision of Roma J of the 13th November 2015 involving momentary inattention and the absence of aggravating factors such as speed or alcohol, the accused was convicted and fined $800.00 payable forthwith, in default, 8 weeks imprisonment. In Police v Lauina [2017] WSDC 5 (12 May 2017), a Sentencing Decision of Papali’i J where the accused fell asleep at the wheel killing a 23 year old woman, the accused was ordered to pay forthwith the sum of $1,300.00 in default, 3 months imprisonment.

[25] In Police v Siaso (supra), Sapolu CJ reiterated the need for deterent sentences for cases involving negligent driving causing death. Sapolu CJ stated

“In both Mapesone v Police [2003] WSSC 4 and Seuoti v Police [2006] WSSC 48, this Court emphasised the need for deterrence when passing sentence in cases of negligent driving causing death because of the prevalence of this kind of offending.”

[26] In this case, as in all cases involving negligent driving causing death, the consequences of the accused actions can only be described as very serious because death has occurred as a consequence of the accused conduct. It is a tragedy for the deceased that his life has been cut short and for his family, they have lost a loved member. In Becroft and Hall's Transport Law (NZ), LexisNexis NZ Limited (OnLine Edition), SPPC.8.2 Culpability versus Consequences of driving fault, it relevantly states:

“The quality of the driving on the particular occasion is the most important consideration when fixing the sentence.

In Ladette v Police (HC, Wanganui AP 7/95, 2 October 1995) [STA55.116] Neazor J commented:

Justice requires that at least discernible general yardsticks as to length of sentence should be applied in any case. It is clearly established that the central focus of attention should be the seriousness of the driving fault rather than which consequence, death or injury, has ensued, which may be a matter of chance, but it is likely that a somewhat higher level of sentence will be considered where death has been caused.

Similar sentiments were echoed by the English Court of Appeal in R v Raynor; R v Wing [1995] RTR 119, 125 where it was said (per Lord Taylor CJ): “We must emphasise that this court cannot be persuaded by campaigns or by clamour to pass extremely long sentences where the criminality of the offender does not justify it. This court is concerned primarily with the criminality of the person who has caused the death.

A consistent theme running through the cases is that too much weight must not be given to the consequences of an accident, as distinct from the degree of culpability or the dangerous elements of the offender’s driving: see, eg, R v Te Huia (CA 263/80, 5 June 1981); [1981] BCL 637 [STA55.202]; Duncan v Police (HC, Wellington M 706/84, 3 May 1985, Ongley J); [1985] BCL 756 [STA55.208]; R v Clarke [1982] NZCA 11; [1982] 1 NZLR 654 (CA) [STA55.205]; R v Lynn (CA 137/88, 12 July 1988); [1988] BCL 1230 [STA55.220]; R v Banks (CA 280/89, 1 December 1989); [1990] BCL 36 [STA55.226].”

[27] It is highly relevant that a death has ensued and it is one aspect that is to be taken into account but in determining sentence, the Court’s focus is particularly concerned with the criminality of the person who caused the death. On a review of the case authorities including the more recent sentencing decisions of the District Court, the sentencing approach remains as stated by Vaai J in Seuoti v Police that where “the offending falls within the second category, a custodial sentence is often considered appropriate unless there are very special circumstances. The cases referred to by counsel for the appellant in which the District Court imposed monetary fines fall into the first category...”

[28] Second category cases generally result in a custodial sentence. Those are the cases characterized as involving “driving in a manner which shows selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness...” Those cases have often involved aggravating factors such as speed and/or alcohol or other aggravating factors that increases the accused culpability and therefore, higher end scale of negligence. This was a case of momentary inattention falling within the first category referred to in Seuoti v Police (supra) in which non-custodial sentences are imposed. In its submissions for sentencing, prosecution has not put forward a case for a change to this sentencing approach for cases involving negligent driving causing death in the first category of cases.

[29] In passing sentence on the accused today, I bear in mind that whilst others have spoken of his remorse, there is nothing in the accused PSR by the accused himself expressing his remorse for his actions or that he acknowledges the impact his actions have had on the victims of his offending. He speaks of the impact of his offending on himself, his work and the fact that he has not seen his family or new born child. The victims of the accused offending have lost a husband and father in very tragic circumstances. This is not an aggravating factor but means that he does not get the benefit for remorse in mitigation, separate from the reconciliation process carried out. I sincerely hope that the accused understands the gravity of his offending and the loss that has been caused to the deceased and suffered by the deceased’s family.

[30] In this case, consistent with the sentencing approach of the Courts for similar cases involving negligent driving causing death falling within the first category of cases per Seuoti v Police (supra), a non-custodial sentence will be imposed. In passing sentence however, I bear in mind the broader options now available to a sentencing judge by virtue of the Community Justice Act 2008 and the Sentencing Act 2016 that can be applied to enhance deterrence in sentencing through a broader range of sentencing options and sentencing combinations (section 14, Sentencing Act 2016). In this regard, I note that the purposes of the Sentencing Act 2016 also includes “to provide a sufficient range of sentences and other means of dealing with defendants and to provide for the interests of victims of crime...” This is also a purpose of sentencing as set out in section 5(1) of the Sentencing Act 2016. The sentence I will impose today therefore will include greater deterrence within the non-custodial range of sentences that permits incorporation of community work but also importantly, provide for the interest of the deceased’s wife.

[31] Part 3 of the Sentencing Act 2016 provides for the payment of reparation to victims of crime. I have considered the factors contained in section 24 of the Sentencing Act and the resources available to the accused. I have determined that it is appropriate that a reparation order be made, and which is accepted by counsel as more appropriate than a fine payable to the State. Pursuant to subsection 25(2), I also determine that I do not require a reparation report as the accused has set out in the PSR his earnings and the deceased wife has set out that they have spent almost $20,000.00 in her VIR as a consequence of the accused offending.

[32] In sentencing the accused, I note that no application for a discharge without conviction, conviction and discharge or conviction and an order to come up for sentence if called on was made. I have considered those sentences in accordance with section 11 of the Sentencing Act 2016 and also consider such sentences as inappropriate

[34] The accused passport surrendered to the Registrar is to be released on satisfaction of his sentence.

Supreme Court of Samoa

Police v Keji Li [2017] WSSC 170 (8 November 2017)