Police v Solovi [2018] WSSC 53 (5 April 2018)

SUPREME COURT OF SAMOA
Police v Solovi [2018] WSSC 53

Case name:	Police v Malauulu Solovi
Citation:	[2018] WSSC 53
Decision date:	5 April 2018
Parties:	POLICE v MALAUULU SOLOVI male Saleaumua Aleipata
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Accordingly, the you are convicted and sentenced as follows: on the charge of manslaughter, you are convicted and sentenced to 1 year and 8 months imprisonment less any time remanded in custody; and unlicensed driving, convicted and discharged.
Representation:	A Matalasi for prosecution D Kerslake for the Accused
Catchwords:	Manslaughter involving the use of a motor vehicle,
Words and phrases:	Driving above the speed limit in front of a church, Behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape.
Legislation cited:	Crimes Act 2013 and Road Traffic Ordinance 1960
Cases cited:	Police v Faatafa [2016] WSSC 51 (8 April 2016) his Honour Sapolu CJ, In Gacitua v R [2013] NZCA 234, para [25] the New Zealand Court of Appeal, English Court of Criminal Appeal in R v Cooksley [2003] 3 A11 ER 40, para [15], Iosua v Attorney General [2014] WSCA 5 (2 May 2014) ,Police v Faatafa (supra), Sapolu CJ, Taueki v R [2005] NZCA 174; [2005] 3 NZLR 372, Court of Appeal in Tele'a v National Prosecution Office [2017] WSCA 4 (31 March 2017), Gacitua v R [2013] NZCA 234 (20 June 2013), R v Skerrett CA236/86, 9 December 1986 , Police v Tapaleao [2014] WSSC 38 and Police v Siaso [2014] WSSC 56 (14 October 2014).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MALAUULU SOLOVI male Saleaumua Aleipata
Accused

Counsel:
A Matalasi for prosecution
D Kerslake for the Accused

Sentence: 5 April 2018

S E N T E N C E

1. Malauulu, you appear for sentencing on one charge 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) and one charge of unlicensed driving. The charge of manslaughter carries a maximum penalty of up to life imprisonment and the charge of unlicensed driving a fine of up to $200.00.

The Offending

2. According to the Summary of Fact s accepted by you through your counsel, on the 10^th April last year, you were the driver of a Hyundai Getz rental car. As you returned from Faleolo Airport to Saleaumua Aleipata on the East Coast Road, you were speeding at Lauli’i. As you drove through Lauli’i, you were travelling between 50 – 60 miles per hour. You told Police in your caution statement that this incident occurred at Lauli’i. You told the Probation Service it was raining. The speed limit at the location where you struck the victim was 35 miles per hour.
3. The victim is a Church Minister. He was crossing the road as he was leaving Church to go to his home on the opposite side of the road to the church. He had passed the centre line of the road as he crossed. You saw the victim only 5 – 6 metres before you struck him. You tried to swerve to avoid hitting him but couldn’t as there was a car travelling from the other direction. On hitting the victim, he was thrown a distance from the point of impact. You then also struck the car heading in the opposite direction towards Apia causing that car to face eastwards in the direction it had come from.
4. The victim’s wife heard a loud bang and came to the scene and found the victim. He died having sustained several deep lacerations to the head and left eye, open skull fracture over the left eye and minor abrasions over his legs and chest. The Medical Doctor’s Report to the Coroner noted that the victim was admitted dead on arrival at 8.25pm on the 10^th April 2017 and that the place of death was TTM Hospital.
5. You told the Probation Service that you stopped your car and went to check the victim but were then assaulted by bystanders.

The Accused

6. You are a 46 year old single male of Saleaumua Aleipata. You completed Secondary School to year 12. You lived in American Samoa from 1991 to 2000 and when you returned, you worked as a taxi driver. You then subsequently operated a fishing boat business both for fishing and tourism. You told Probation you earn $800.00 per week.
7. You come from a supportive family. Your family has asked for the Court’s leniency. They rely on you to support their business.
8. An ifoga was performed by your family. This presentation was carried out at the victim’s home at Lauli’i but was apparenty made to the village of Lauli’i due to protocols on that day raised by, apparently, the village of Lauli’i. The ifoga included $20,000.00 and 10 large fine mats. These were accepted by the village. The victim’s wife told the Probation Service that from the ifoga, she received $1,000.00 from that ifoga. Counsel for the prosecution accepts that a deduction for the ifoga presented to the village should be made, but it is a question then as to the weight to be given to that ifoga.
9. A village fine was paid to your own village. This was $4,000.00, 40 boxes of chicken legs, a cow and a sow.

The Victim

10. The victim was a 68 year old male of Lauli’i. He was a Church Minister for the Seventh Day Adventist Church.
11. The VIR prepared following interview of the victim’s wife Fuatino Su’a Atonio said that her husband was suffering following the accident. He was a loved husband, father and grandfather.
12. Fuatino and her children are people of strong faith and forgiveness. They forgive you for what has happened and for the death of her husband.
13. The victim’s funeral cost exceeded $40,000.00.

Aggravating and Mitigating Factors:

14. In Police v Faatafa [2016] WSSC 51 (8 April 2016), His Honour Sapolu CJ addressed aggravating and mitigating factors in cases of motor manslaughter. Sapolu CJ stated:
    

“8. In Gacitua v R [2013] NZCA 234, para [25], the New Zealand Court of Appeal said that the aggravating and mitigating factors recommended by the English Sentencing Advisory Panel and adopted by the English Court of Criminal Appeal in R v Cooksley [2003] 3 A11 ER 40, para [15] were useful in identifying some of the aggravating and mitigating factors relevant to sentencing in a case of motor manslaughter. The weight to be given to each factor is a matter for assessment in the particular circumstances. The factors as set out in R v Cooksley [2003] 3 A11 ER 40, para [15], are:

“Highly culpable standard of driving at time of offence

• (a) The consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl’
• (b) Greatly excessive speed; racing; competitive driving against another vehicle; ‘showing off’
• (c) Disregard of warnings from fellow passengers.
• (d) A prolonged, persistent and deliberate course of very bad driving.
• (e) Aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking).
• (f) Driving while the driver’s attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held).
• (g) Driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills.
• (h) Driving when knowingly deprived of adequate sleep or rest.
• (i) Driving poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns.

Driving habitually below accepted standard

• (j) Other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle.
• (k) Previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving.

Outcome of offence

• (l) More than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable).
• (m) Serious injury to one or more victims, in addition to the death(s).

Irresponsible behaviour at time of offence

• (n) Behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape.
• (o) Causing death in the course of dangerous driving in an attempt to avoid detection or apprehension.
• (p) Offence committed while the offender was on bail.

Mitigating factors

• (a) A good driving record;
• (b) The absence of previous convictions;
• (c) A timely plea of guilty;
• (d) Genuine shock or remorse (which may be greater if the victim is either a close relation or friend);
• (e) The offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence), and
• (f) The fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving”.
  

9. From the above list of factors, the aggravating factors relating to the present offending would be: consumption of alcohol as the accused was heavily intoxicated when he drove his car, excessive speed, and bad driving
15. Applying these criteria to Summary of Facts, the factors aggravating to your offending was the greatly excessive speed in the circumstances and you being an unlicensed driver at the time of the offending. It is noted that you were not intoxicated nor is there evidence of a “prolonged, persistent and deliberate course of very bad driving” leading up to the accident.
16. The mitigating factors are your prior good character, your genuine remorse and contrition, the ifoga, village fine imposed on you and your guilty plea entered on the hearing date.

Discussion

17. Prosecution sought a start point of 3 years imprisonment followed by an uplift of 2 years imprisonment for the aggravating factors submitted by Prosecution being (a) grossly excessive speed; (b) the risk to safety of the public; (c) driving above the speed limit when passing a Church; (d) committing other offences while committing this offending (ie driving whilst unlicensed); and (e) the injuries caused to the deceased and his death. Factors (b), (c) and (e) are not factors expressly recognized in Gacitua v R and driving above the speed limit in front of a church is not an aggravating factor with which prosecution has referred this Court to any authority.
18. The approach to sentencing applied by prosecution in motor manslaughter cases was addressed by the Court of Appeal in Iosua v Attorney General [2014] WSCA 5 (2 May 2014) where the Court of Appeal stated:
    39. Different meanings can be attached to “starting point” for sentencing purposes. The way the Judge approached the matter was to have a high starting point which included all aggravating considerations. The other approach is to have a lower starting point to reflect the core nature of the offence and then to increase it for the aggravating factors in the instant case. It does not matter which approach is taken so long as the end result is the same.
    40. One way of approaching the present case is to adopt a period of imprisonment as a starting point confined to the core offence of driving a public transport vehicle full of passengers into a flooded river without adequate regard for their safety. We think that in the particular circumstances of this case six years is an appropriate figure to adopt for that purpose. It cannot be pretended that this is a matter of fine analysis. It is a robust assessment based on the analogies with which we were presented and our assessment of the special responsibilities placed on those in control of a public transport vehicle.” (emphasis added)
        
19. It is also the approach that appears to be set out in Archbold (Second Supplement to the 2013 Edition) referred to by Prosecution in their Sentencing Submissions, a copy of which was not attached to prosecution submissions.
20. In Police v Faatafa (supra), Sapolu CJ adopted the approach in Taueki v R [2005] NZCA 174; [2005] 3 NZLR 372. This was recently explained by the Court of Appeal in Tele'a v National Prosecution Office [2017] WSCA 4 (31 March 2017) as follows:

“27. Taueki was a signnt decision bion both for its methodology and for the guideline bands it provided. The methodology was usefully summarised in Attorney General v Matalavea at [15] as follows:

In order to compare this case with others we adopt the now conventional approach of identifying a starting point for the conduct, viewed objectively without reference to Mr Matalavea’s personal circumstances, before turning to those factors as well as others relied on in mitigation.”

21. Two approaches can therefore be adopted. That in Iosua v Attorney General (supra) or Taueki v R (supra). Which approach is adopted does not matter so long as the end result is the same.
22. This case is quite different from Iosua in that this was not a public service vehicle driven into a particularly dangerous situation with a bus full of passengers. Of the two approaches, I adopt the approach in Taueki also applied by Sapolu CJ in Police v Faatafa. For sentencing purposes therefore, I understand Prosecution to be seeking a 5 year start point for sentence.
23. The difficulties in terms of manslaughter sentencing was recently recognized by the Court of Appeal in Iosua v Attorney General which stated:

“17. The maximum sentence for manslaughter is life imprisonment. It is notorious that the nature of manslaughter is so variable that no clear guidelines can be adopted. Even for the starting point each case must be considered carefully. The focus lies on the particular level of culpability displayed by the offender as well as its consequences...”

24. The difficulty in sentencing for motor manslaughter was also recognised in Gacitua v R [2013] NZCA 234 (20 June 2013) where the Court of Appeal quoted from Lord Woolf CJ in Cooksley at paragraph 24:

“[24] ...The Chairman said:

27. ... This offence causes particular difficulty for sentencers. By definition, it is one which always gives rise to extremely serious harm: the death of at least one victim (and in some cases serious injury to others). Understandably this often leads to calls from victims’ families, and from the wider community, for tough sentencing. On the other hand, an offender sentenced for causing death by dangerous driving did not intend to cause death or serious injury, even in the extreme case where he or she deliberately drove for a prolonged period with no regard for the safety of others. ...”

25. In considering sentence, I have referred to Gacitua v R and R v Skerrett CA236/86, 9 December 1986 and aggravating factors identified in those authorities. I have also considered Police v Faatafa (supra) where a start point of 5 ½ years imprisonment was adopted. That offending involved a much higher level of culpability then in this case as it involved a combination of excessive speed, intoxication and bad driving leading to that offending. In Police v Tapaleao [2014] WSSC 38, a start point of 7 years was adopted in offending that involved a combination of heavy intoxication, bad and dangerous driving including zig zagging, excessive speed and warnings, also with a higher degree of culpability.
26. In considering sentence, I have also considered Police v Siaso [2014] WSSC 56 (14 October 2014) where the facts of that case are very similar to this case. That case involved an accident during the course of an over-take striking and killing a pedestrian. That accused was driving at high speed, accelerated leading up to striking the pedestrian and was drinking a beer whilst driving. Alcohol may have been a factor. The accused did not have a driver’s license and the car did not have a warrant of fitness. The accused was sentenced to 12 months imprisonment on a charge of negligent driving causing death, reduced from an earlier charge of motor manslaughter.
27. In your case Malauulu, the Summary of Facts does not disclose ongoing dangerous driving. No alcohol was involved, often hand in hand with speed and road deaths in this country. Your culpability rests on your speeding, possibly in wet conditions, at night at between 15mph – 25 mph above the speed limit. When considering the aggravating factors referred to in Skerrett and Gacitua, your offending is at the lower end of culpability of this type of offending.
28. While it is at the lower end, a non-custodial sentence is inappropriate. In researching cases with similar factual circumstances to yours, there appears to be no similar local authority except for Police v Siaso which was sentenced on the basis of negligent driving causing death. Similarly in New Zealand, many of the cases involving motor manslaughter identified a number of aggravating factors often including excessively high speed, alcohol and or drugs, ignoring of warnings and other combinations of aggravating factors.
29. In your case, it was principally speed and the fact that you were at the time unlicensed. Even in this sense, the Summary of Facts and the material before the Court does not suggest that you never had a license. If that was the case, it would be more aggravating.
30. In this case, I consider a 3 year start point of imprisonment as appropriate. I deduct 3 months for your prior good character and 3 months for the ifoga presented to Lauli’i on behalf of the victim’s family that was accepted. I also deduct 2 months for the village penalty imposed on you by your own village that has been paid. That leaves 2 years and 4 months. For your genuine remorse, I deduct 2 months leaving 2 years and 2 months. For your guilty plea on withdrawal of the various duplicate and other charges, I deduct 6 months leaving 1 year and 8 months. I note that a change of plea was indicated during call-over.
31. It is also appropriate that you be disqualified from holding or obtaining a driver’s licence pursuant to section 33 of the Road Traffic Ordinance 1960 (“RTO”). As a result of your driving, you have caused the death of the victim. You will be disqualified from holding or obtaining a driver’s licence for a period of 4 years.

Result:

32. Accordingly, the you are convicted and sentenced as follows:
    100. on the charge of manslaughter, you are convicted and sentenced to 1 year and 8 months imprisonment less any time remanded in custody; and
    4. unlicensed driving, convicted and discharged.
33. Pursuant to section 33 of the RTO, you are disqualified from holding or obtaining a driver’s licence for a period of 4 years. Pursuant to section 33A, I further order that your disqualification shall continue until such time as you have passed the prescribed test of competence to drive any class or classes of vehicles that you may then seek to drive.
34. As this Court also sits as a Coroners Court, I find that the deceased Su’a Atonio Feterika Filisi, 68 year old male of Lauli’i died on Monday 10^th April 2017 at the TTM Hospital, Motootua as a result of intracranial bleeding as a result of traumatic head injury from a motor vehicle accident at Lauli’i.

JUSTICE CLARKE