Police v Vaamainuu [2022] WSSC 31 (1 July 2022)

IN THE SUPREME COURT OF SAMOA
Police v Vaamainuu [2022] WSSC 31 (01 July 2022)

Case name:	Police v Vaamainuu
Citation:	[2022] WSSC 31
Decision date:	01 July 2022
Parties:	POLICE (Informant) v MU VAAMAINUU, male of Samalaeulu & Ulutogia (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	You are accordingly convicted and sentenced as follows: (a) on the charge of negligent driving causing death on a totality basis, you are convicted and sentenced to 2 years and 4 months imprisonment, less any time remanded in custody; (b) informations S1820/21 and S1821/21 negligent driving causing injury to Esera Isaia and Leo Posiano, 6 months imprisonment, concurrent to (a) above; and (c) Information S1822/21, 3 months imprisonment concurrent to (a) and (b) above. You are also disqualified from holding or obtaining a driver’s license for a period of 3 years and 6 months.
Representation:	T. Sasagi for the Informant A. Lesa for the Defendant
Catchwords:	Negligent driving causing death – negligent driving causing injury - consumed alcohol – four victims – one death – three injured – sleep deprivation – of previous good character – remorseful – ifoga carried out – early guilty plea – custodial sentence.
Words and phrases:
Legislation cited:
Cases cited:	Police v Keji Li [2017] WSSC 170; R v Boswell (1984) 3 All ER 353; R v Cooksley [2003] 3 All ER 40; Seuoti v Police [2006] WSSC 48;
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

MU VAAMAINUU, male of Samalaeulu and Ulutogia

Defendant

Counsel: T Sasagi for the Informant
A Lesa for the Defendant

Hearing: 20 June 2022
Sentence: 01 July 2022

SENTENCE

The Charge

1. Mu, you appear for sentence on one charge of negligent driving causing death and three charges of negligent driving causing injury detailed in Charging Document of 22^nd November 2021.

The Offending

2. Following a disputed Summary of Facts hearing, the accepted facts are that on the 12^th November 2021, you and a work colleague consumed a small bottle of Rover Vodka costing $19.00 at the Ministry of Agriculture and Fisheries (MAF) Office Salelologa after work. At about 7.00pm, you and two work colleagues drove to a local night club in Salelologa. There, a $40 beer tower was bought, approximately 5 litres in total.
3. Following the disputed Summary of Facts hearing, I found on the evidence that you consumed no more than one glass of beer from the beer tower. At approximately 9.00pm, you and your colleagues left the night club in your car. You dropped off your work colleagues at the MAF office Salelologa and drove on to Samalaeulu. Between 9.30pm and 10.00pm, as you approached the bridge on the main road at Puapua, you fell asleep. You lost control of your car and veered off the main road into a group of people on the side of the road. The group of people were villagers who had been attending a Tausala that evening at the Catholic Church across the main road. As a result, one person was killed and three injured, all young males.
4. The disputed Summary of Facts hearing focused on the amount of alcohol consumed by you to assess the level of your impairment from that alcohol to drive your car. As I found, that question is answered by you when you said in caution statement that:
   • “Sa ou fa’alogoina lava o lea taimi e mo’i lava oute le’o ona tele ma sa lelei lava la’u agai mai Salelologa agai ni lo matou aiga i Samalaeulu...”
5. In Talapani’s evidence, he had described your state after drinking the Rover Vodka in similar terms. Although you were not heavily intoxicated, you had started to become intoxicated from the alcohol you had consumed that evening which impaired your ability to drive.

Background of the Accused

6. You are a 45 year old male of Samalaeulu and Ulutogia. In your Pre-Sentence Report (PSR), you told the Probation Service that you were raised in Aleipata and are the third of four children. You completed your secondary schooling at Maluafou College and have worked at the MAF since 1998. Since that time, you have continued to improve yourself through education studying agricultural science at the University of the South Pacific. You have continued to improve yourself pursuing further study in New Zealand, Japan and China while working at the MAF. Your family relies on your employment.
7. You are married with six children and are employed with the MAF at Salelologa. You are described by your wife as a loving and reliable husband.

The Victims

8. There are four victims to your offending. The first is the deceased, Tuiavae Junior Tautulei. He was a 16 year old boy from Puapua and was in year 12 at Vaiola College. His father in his Victim Impact Report refers to the injuries suffered by him and that he and his wife feel the pain of the loss of their son, his life wasted and how much they miss him, particularly as he is their youngest child. The funeral cost $30,000.00 and four heads of cattle.
9. The three other victims were Sio Pita, 18 years old, Leo Posiano, 17 years old and Esera Isaia, 23 years old, all males of Puapua. Sio suffered minor abrasions to his left leg which did not require medical attention. Esera suffered injuries to his left side and his left leg requiring placement in a cast and injuries to his toes. In his VIR, he says he was kept in hospital for two to three weeks and as at February this year, still required a crutch to assist with his walking. Leo suffered injuries to his left side and left leg. He later required surgery to his left knee and he requires a crutch for mobility and rehabilitation. He is concerned whether he will regain full recovery to his leg.

Aggravating Factors

10. The aggravating features of your offending are:
    • (a) alcohol was a contributing factor;^[1]
    • (b) you were driving when deprived of adequate sleep or rest;^[2]
    • (c) the number of victims and the harm caused by your offending including the nature of the injuries suffered by two of the surviving victims including the extended period of time needed to recover from the injuries sustained; and
    • (d) the location of your offending opposite a church where church going members of the public congregate and in this case, where the victims had been attending a Tausala.
11. There are no aggravating features personal to you as an offender.

Mitigating Factors

12. Mitigating of the offending is that after the accident, your car came to a stop and you were beaten by people on the scene, which came out in the evidence during the disputed Summary of Facts hearing. You were taken to the hospital by Police and then released from hospital that same morning.
13. Mitigating factors personal to you that I accept are as follows:
    • (a) Your prior good character reflected in the character references that accompany the PSR from your pule nuu, church representative and workplace;
    • (b) your genuine and heartfelt remorse expressed in court and elsewhere in the material I have read;
    • (c) the ifoga and apology extended to the family of the deceased Tuiavae as well as to the reconciliation and apology to the other victims and their families reflected in the VIRs; and
    • (d) Your early guilty plea.
14. There is no material before me to determine how long you have held a driver’s license. As such, there is no discount on your prior driving record.

Discussion

15. The events on the evening of the 12^th November 2021 at Puapua is nothing short of a tragedy for all involved. For Tuiavae, he lost his life at just 16 years of age. A boy entering adulthood, still at school with his whole life ahead of him. For his parents, their deep love for their youngest child and immense sadness and loss following his death is laid out in the VIR from his father, Olo Tautulei. For Esera, he says he spent 2 – 3 weeks in hospital and in February this year, still required a crutch to assist with his walking. For Leo, he required surgery and in February this year, still also required a crutch to assist with his walking. Your offending caused serious injuries to these two victims that required hospital care and which continued to afflict them even a few months after the incident.
16. It is also a tragedy for you Mu. You have a family. You are clearly well educated. You have strived to educate and improve yourself and have been chosen to attend a number of educational opportunities overseas, testament to the fact that you are a valued and hardworking member of the MAF. When you addressed the Court, the impact of your offending on the victims and their families as well as on your own life and that of your family has also not been lost on you. The burden of Tuiavae’s death will be one you will carry for the rest of your life, born as your counsel said, from an error of judgment when you decided to drive, with fatal consequences.
17. In your caution statement, you stated “Sa ou fa’alogoina lava o lea taimi e mo’i lava oute le’o ona tele ma sa lelei lava la’u agai mai Salelologa agai ni lo matou aiga i Samalaeulu...” Like so may people who decide to drive when they believe they are not that drunk, you thought that killing someone on the road and injuring others would never happen to you. It did and sadly, a young life has been lost and others seriously injured. You should never have been driving. What has happened to you should be a warning to other people not to drive when their ability to do so is impaired by alcohol. The consequences of that seemingly small decision can be immense, life changing and sadly, fatal.
18. The approach by the District Court to sentencing for negligent driving causing death was discussed in Seuoti v Police [2006] WSSC 48 (1 September 2006), referred to in Police v Keji Li [2017] WSSC 170 (8 November 2017). In Seuoti v Police, the Supreme Court observed the District Court sentencing practices at that time as follows:
    • “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).
    • See also R v Boswell (1984) 3 All ER 353

Where the offending falls within the second category, a custodial sentence is considered appropriate unless there are very special circumstances...”^[3]

19. In Police v Keji Li, this Court observed at paragraph 27 that in terms of negligent driving causing death sentencing, the sentencing practices referred to in Seuoti v Police continued to be applied by the District Court.
20. The following table shows sentences imposed in negligent driving causing death cases. These sentences were imposed when the maximum penalty for negligent driving causing death or bodily injury was 5 years imprisonment or a fine of up to $2,000.00. In March 2020, Parliament significantly increased the penalty for these offences to 10 years imprisonment and a maximum fine of $25,000.00.

Case.	Court.[4]	Factors.	Category.[5]	Penalty.
Mapesone v Police [2003] WSSC 41 (6 October 2003).	SC	Overloaded bus, high speed veering onto wrong side of road into oncoming car. One fatality, one injury.	Not specified. Facts – category 2.	End sentence 12 months imprisonment for negligent driving causing death. 6 months imprisonment, concurrent negligent driving causing injury.
Seuoti v Police [2006] WSSC 48 (1 September 2006).	SC	Overloading of truck, speed and alcohol. Single fatality.	Not specified. Facts – category 2.	3 year start point. End sentence 18 months. Appeal dismissed.
Police v Risiti [2014] WSDC 4 (30 July 2014).
Police v Siaso [2014] WSSC 56 (14 October 2014).	SC	High speed, alcohol while driving. Single fatality.	Not specified. Facts – category 2.	2 ½ year start point. 12 month imprisonments.
Police v Lauina [2017] WSDC 5 (12 May 2017).	DC	Fell asleep at wheel.	Not specified. Sentenced category 1.	Fined $800.00, Prosecution costs $200.00 and $300.00 Probation costs.
Police v Keji Li [2017] WSSC 170 (8 November 2017).	SC	Crossed into opposite lane. Single fatality.	Category 1.	Reparation order to victim family: total payment $20,000.00 plus 200 hours community work.
Police v Tusa [2017] WSDC 25 (8 December 2017)	DC	Single fatality, child.	Not specified. Facts – category 1.	Probation 1 year, $1,200 Court fine, $100 Police costs.

21. As these cases demonstrate, prior to the increase in penalties for this offending, cases that fell within category 1 attracted non-custodial sentences. Cases that fell within category 2 attracted custodial sentences. In the absence of submissions to the contrary, the categorization of negligent driving causing death cases into the two categories referred to in Seuoti v Police continues to be helpful guidance for sentencing.
22. In these proceedings, your counsel submits that your matter falls within the first category involving momentary inattention or an error of judgment. That is not the case. You had consumed alcohol, you had begun to be affected by that alcohol and you then fell asleep at the wheel as you drove home. In R v Cooksley [2003] 3 All ER 40 at paragraphs 38 and 39, Lord Woolf CJ refers to the judgment of the Court delivered by Kay CJ in A-G's Ref (No 56 of 2002) [2003] 1 Cr App R (S) 476 where Kay CJ made the point that:
    • “...If you drive with excess alcohol late at night, one of the possibilities is that it will increase the chances that you will fall asleep at the wheel. Those who fall asleep at the wheel, whether from excess alcohol or otherwise, represent an enormous danger to other road users. Accordingly, it is incumbent upon all to ensure that they do not place themselves in a position where that is likely to happen.
    • ...
    • falling asleep is not generally something that happens in a moment. It is normally the end product of a process of feeling tired and people do have the opportunity to stop and avoid an accident when they start to feel that they are falling asleep.”
23. Falling asleep as you drove was not momentary inattention. It was the end product of a process of feeling tired from various contributing factors, including alcohol at the end of a work day driving at night. By driving in those circumstances, you showed what is described in the sentencing authorities as a selfish disregard for the safety of other road users.
24. The question for the Court is that under the new penalties for negligent driving causing death that fall within the second category of cases, what penalty should now be imposed? Prosecution seeks a 6 year imprisonment start point for the charge of negligent driving causing death and 5 year start point for negligent driving causing injury, to be served concurrently. Your lawyer seeks a community based sentence of 400 hours community work supervised by probation. Alternatively, if a community based sentence is inappropriate, an imprisonment term with a start point of 12 – 18 months.
25. At the outset, given the aggravating factors of your offending, a community based sentence is not appropriate. In R v Cooksley, the English Court of Appeal identified the following sentencing guidelines for dangerous driving causing death or careless driving causing death under the influence of drink or drugs (maximum penalty also) under the English statutes with a maximum penalty of up to 10 years imprisonment:
    • No aggravating features: 12 to 18 months imprisonment;
    • Intermediate culpability: 2 to 3 years imprisonment;
    • Higher culpability: 4 to 5 years imprisonment; and
    • Serious culpability: 6 years or over.
26. The English Court of Appeal did not differentiate between dangerous driving causing death and careless driving causing death under the influence of drink or drugs in the English sentencing guidelines. Although the English offences are different, the guidelines can provide helpful guidance for category 2 offending in Samoa as the maximum imprisonment penalty is also 10 years.
27. In my respectful view, given the aggravating features of your offending and the higher penalties now imposed by Parliament, and bare in mind the sentencing earlier by the Samoan Court, the appropriate start; the appropriate start for sentence is 4½ years imprisonment. Had you been more heavily impaired by alcohol, a higher start point may have been warranted. I lower that start point however by 3 months to 4 years and 3 months due to the assault that you were subjected to following the accident. From that adjusted start point, I deduct 5 months for your prior good character, 8 months for your genuine remorse, the ifoga presented and accepted and the reconciliation that has taken place; and 10 months for your early guilty plea leaving an end sentence of 2 years and 4 months imprisonment.

Result:

28. You are accordingly convicted and sentenced as follows:
    • (a) on the charge of negligent driving causing death on a totality basis, you are convicted and sentenced to 2 years and 4 months imprisonment, less any time remanded in custody;
    • (b) informations S1820/21 and S1821/21 negligent driving causing injury to Esera Isaia and Leo Posiano, 6 months imprisonment, concurrent to (a) above; and
    • (c) Information S1822/21, 3 months imprisonment concurrent to (a) and (b) above.
29. You are also disqualified from holding or obtaining a driver’s license for a period of 3 years and 6 months.

JUSTICE CLARKE

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^[1] R v Cooksley [2003] 3 All ER 40 at paraph 15, the consumption of alcohol identified as a highly culpable aggravating factor for the offence of causing death by dangerous driving and careless driving when under the influence of drink or drugs.
^[2] See: R v Cooksley [2003] 3 All ER 40 at paraph 15, also identified as a highly culpable aggravating factor.
^[3] Note: R v Boswell [1984] 3 All ER 353 concerned reckless driving causing death and reckless driving.
^[4] Supreme Court denoted by SC. District Court denoted by DC.
^[5] Category 1 and 2 follow the categories referred to in Police v Seuoti.