Police v Sape [2022] WSSC 13 (15 February 2022)

IN THE SUPREME COURT OF SAMOA
Police v Sape [2022] WSSC 13 (15 February 2022)

Case name:	Police v Sape
Citation:	[2022] WSSC 13
Decision date:	Sentence: 09 February 2022 Reasons: 15 February 2022
Parties:	POLICE (Prosecution) v MOMOE AFIAFI SAPE, female of Toamoa (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Tuatagaloa
On appeal from:
Order:	In light of the circumstances of this case, a custodial sentence is not appropriate. The defendant is sentenced as follows: (i) Negligent driving causing death – The defendant is convicted and sentenced to 2 years’ supervision. The defendant is also disqualified from holding a driver’s license for 12 months starting from the date of sentence; (ii) Negligent driving causing injury – The defendant is discharge without conviction. The victim of this offence died resulting in the charge of negligent driving causing death; (iii) Failure to stop and ascertain – The defendant is discharged without conviction; and (iv) Unlicensed driver – The defendant is convicted and fined $200 to be paid by 4pm, in default one week imprisonment.
Representation:	I. Tanielu for Prosecution F. Lagaaia for the Defendant
Catchwords:	Negligent driving causing death – negligent driving causing injury – unlicensed driver – failure to stop and ascertain – ifoga carried out – first offender – non-custodial sentence.
Words and phrases:
Legislation cited:
Cases cited:	Police v Iosua (Unreported, Supreme Court, Slicer J, 20 November 2013); Police v Tausagi [2017] WSSC 18; Police v Tapaleao [2014] WSSC 38; Police v Tofi [2014] WSCA 5.
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

MOMOE AFIAFI SAPE, female of Toamua

Defendant

Counsel: I Tanielu for Prosecution
F Lagaaia for the Defendant

Sentence: 09 February 2022

Reasons: 15 February 2022

SENTENCE OF JUSTICE TUATAGALOA

These are the reasons for the sentence already imposed upon the defendant on 9 February 2022.

The charges:

1. The defendant appears for sentence on the following charges:
   • Negligent driving causing death pursuant to section 39A(3) of the Road Traffic Orde 1960 with with a maximum penalty of 10 years’ imprisonment or to a maximum fine of $25,000 and disqualification for minimum one year under s. 39A(3)(b);
   • Negligent driving causing injury pursuant to s. 39A(2) of the Road Traffic Ordinance 1960 which penalty is maximum monetary fine of $2000 or maximum 7 years’ imprisonment and disqualification for minimum one under s. 39A(2)(b);
   • pt;'>Unlicensed Driver pursuant to ss. 27(1)(a) & 72A(2) of the Road Traffic Ordinance 1960 which s. 72A(2) provides for the penalty of maximum $200 fine for first offender or subsequent conviction to a maximum fine of $400 or maximum 3 months’ imprisonment; and
   • Failure to stop and ascertain pursuant to sections 44(2)(5) & 72A(2) of the Road Traffic Ordinance 1960 which provides for the penalty of maximum $200 fine for first offender or subsequent conviction to a maximum fine of $400 or maximum 3 months’ imprisonment.

The offending:

2. The summary of facts confirmed by the defendant says:
   • The defendant on 17 July 2021 at around 7pm was driving a vehicle (private) with the registered plate number 37471.
   • The defendant had her four children in the car and was driving from Toamua on Vaitele Road heading in the direction towards Apia.
   • The deceased at the time was walking on the footpath on the right side of the road heading home in the opposite direction of where the defendant was driving from.
   • The deceased decided to cross the road and he stepped on to the outside lane to cross.
   • The defendant saw the deceased and honked twice but the deceased continued walking onto the inside lane the defendant was travelling on.
   • The defendant swerved her car to her right to avoid hitting the deceased but did not succeed. The deceased was hit by the front left hand side of the defendant vehicle and was said to have been flung backwards landing on the road in front of the bus stop at the end of the Vaitele Road.
   • The defendant saw many bystanders had congregated around the deceased and fearing for her and her children’s safety continued on without stopping.
   • The bystanders attended to the deceased and took him to the hospital where he underwent surgery due to severe head injuries that he later died from two days later on 19 July 2021.
   • The defendant was also found to have been driving without a valid driver’s license.

The defendant

3. The defendant is 32 years’ old from the village of Toamua; married with six children.
4. The pre-sentence report (PSR) by the probation gives the defendant’s personal background - education, employment and family background.
5. The PSR says that the defendant has been working as a seamstress for the Godinet’s Fashion House since 2019.
6. According to the defendant’s mother, the defendant is a gentle, quiet person who not only looks after her family but them as well (parents) and she would not know what to do without her daughter.
7. There are written testimonials from the defendant’s faifeau and pulenuu (village mayor) who speak of the defendant being an active member within the church and also with her duties and responsibilities within the village. The defendant’s employer also spoke of the defendant as being a very competent seamstress.
8. The defendant with her family did a ‘ifoga’ to the deceased’s family together with $4000, 50 cartons of herring and 8 fine mats. The ifoga was confirmed by the deceased father in the victim impact report (VIR). The ifoga was accepted by the family of the deceased.
9. The defendant has no previous convictions and is a first offender.

The deceased:

10. According to the summary of facts:
    • The deceased was 24 years’ old of Toamua, married with three children. He was a brick maker.
    • On the day of the accident, the defendant was drinking with some of his friends in front of a place next to the Bluebird Hardware at Vaitele. This place is not far from the main road. A cousin of the defendant walked over and told the defendant to go home. The defendant left shortly after and made his way home.
11. The defendant is said by his father in VIR to be his right hand as he was the only one working in the family taking care of not only his own young family but his parents as well. The father like any other parent who loses a child spoke of an emptiness in their family and how much the deceased is missed.

The aggravating and mitigating factors:

12. There are no aggravating factors personal to the defendant. The aggravating factors listed by the prosecution are not in my view aggravating at all given the circumstances of this offending. For example, the prosecution list as aggravating the degree of negligence saying that the defendant has a duty of care and attention to uphold whilst operating a motor vehicle. They say that the negligence of the defendant is at the high end of the scale. I disagree given the following from the prosecutions summary of facts (confirmed by the defendant) and submissions of Counsel for the defendant:
    • The deceased crossed the road not on a pedestrian crossing.
    • The main road he was crossing is double lane on each side.
    • There are always cars on this main road and at most times it is very busy.
    • Cars on this main road travel at 35 – 40km per hour.
    • The defendant was travelling on the inside lane.
    • The defendant honked at the defendant who was on the outside lane.
    • The deceased continued to walk on to the inside lane that the defendant was travelling on.
    • The defendant swerved her car away but could not avoid the deceased and the left front side of the vehicle hit the deceased.
13. I also do not consider as an aggravating factor the failure of the defendant to stop when the deceased was hit for the reason that she feared for her safety and that of her children in the car for any violence in retaliation from the people and men that had walked over to where the deceased was lying.
14. The only aggravating factors would be:
    • The defendant did not report the matter when it happened to the police. The defendant in the PSR told probation services that she turned herself in the following day; and
    • The defendant not having a driver’s license is perhaps the most aggravating because she should never have been driving yet she did and that shows her total disregard of the law.
15. The mitigating features personal to the defendant and to the offending are:
    • The guilty pleas to the offences;
    • The ‘ifoga’ by her and her extended family;
    • The actions she took by honking the horn to alert the deceased of the oncoming vehicle and attempts to swerve away from the deceased to avoid hitting him as he kept walking onto the lane she was travelling on;
    • There was no excessive speed implicated.
16. The prosecution advocated for a custodial sentence with a starting point of four years. Counsel for the defendant submitted for a non-custodial sentence.

Discussion:

17. The offence of negligent driving causing death prior to amendments to the Road Traffic Ordinance 1961^[1] was in the domain of the District Court with a maximum penalty of seven years imprisonment. Since the amendments in 2020, the maximum penalty has increased to 10 years’ imprisonment and maximum 7 years for negligent driving causing injury. The offence of negligent driving causing death now falls within the jurisdiction of the Supreme Courts.
18. Before the amendments, there were a couple of major vehicle accidents that were filed and dealt with by the Supreme Court by way of vehicular or motor manslaughter since it was introduced through the Crimes2013. The four (4) ve4) vehicular manslaughter cases that have been sentenced by this Court were all of different circumstances resulted in deaths.^[2]case of Police v Ta v Tapalea rei> resulted in the death of a male pedestrian. According to the facts of Tapaleao case, the driver (defendant) was under the influence of alcohol and was travelling at excessive speed in a zigzag manner. The defendant’s vehicle drifted to the side of the road and hit the deceased who was walking alongside the road. A seven year starting point with an end sentence of three years and three months’ imprisonment was imposed. The Tapaleao case although it involved a pedestrian, its facts are quite different from the present case.
19. I agree with Counsel for the defendant that the three cases prosecution refer to in their Sentencing Memorandum are differentiated from the present case as the defendant drivers of those cases were under the influence of alcohol, were travelling at excessive speed and the vehicles had faulty brakes. None of those facts are present in the current matter.
20. The prosecution seeks a starting point of 4 years. Counsel for the defendant seeks for non-custodial sentence saying that there are more mitigating features to the offending than the aggravating features proposed by the prosecutions. I agree.
21. In light of the circumstances of this case, a custodial sentence is not appropriate. The defendant is sentenced as follows:
    • (i) Negligent driving causing death – The defendant is convicted and sentenced to 2 years’ supervision. The defendant is also disqualified from holding a driver’s license for 12 months starting from the date of sentence;
    • (ii) Negligent driving causing injury – The defendant is discharge without conviction. The victim of this offence died resulting in the charge of negligent driving causing death;
    • (iii) Failure to stop and ascertain – The defendant is discharged without conviction; and
    • (iv) Unlicensed driver – The defendant is convicted and fined $200 to be paid by 4pm, in default one-week imprisonment.
      

JUSTICE TUATAGALOA

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^[1] Road Traffic Amendment Act 2020, No.10.
^[2] Police v Iosua (Unreported, Supreme Court, Slicer J, 20 November 2013), Police v Tapaleao [2014] WSSC 38; Police v Tofi [2014] WSCA 5; Police v Tausagi [2017] WSSC 18.