Police v Talamoni [2022] WSSC 45 (26 July 2022)

IN THE SUPREME COURT OF SAMOA
Police v Talamoni [2022] WSSC 45 (26 July 2022)

Case name:	Police v Talamoni
Citation:	[2022] WSSC 45
Decision date:	26 July 2022
Parties:	POLICE (Informant) v TITO TALAMONI, male of Faleula (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i A. Roma
On appeal from:
Order:	On the one charge of negligent driving causing death, you are ordered to pay court costs of $1,000 by 2pm this Friday 29 July 2022. Upon payment of those costs, you will be discharged without conviction.
Representation:	I. Tanielu for the Informant F. Lagaaia for the Defendant
Catchwords:	Negligent driving causing death – ifoga carried out – reconciliation – early guilty plea – fined – discharged without conviction.
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960, ss. 3; 39A(1); 39A(3)(b).
Cases cited:	Attorney General v. Ropati [2019] WSCA 2; Police v Keiji Li [2017] WSSC 170; Police v Vaamainuu [2022] WSSC 31; 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

A N D

TITO TALAMONI, male of Faleula

Defendant

Counsel: I. Tanielu for the Informant
F. Lagaaia for the Defendant

Sentence: 26 July 2022

SENTENCING OF JUSTICE ROMA

Charge

1. You appear for sentence on 1 count of negligent driving causing death contrary to s39A(1) & (3), Road Traffic Ordinance 1960. The maximum penalty is 10 years’ imprisonment or a fine of $25,000. You had denied the charge but on 24 May 2022 sought to vacate your denial and substitute a guilty plea.
2. When the matter was last called I raised with both counsel my view that the summary does not disclose evidence of negligence on your part; and the accident appears to have been caused by the young deceased suddenly crossing the road when it was unsafe. I maintain that view despite the amendment to the summary just now by consent. The charge is not one of speeding, it is of negligent driving causing death.
3. Through counsel you maintain your plea of guilty to the charge. I must sentence you in accordance with that plea.

Offending

4. The summary says that on 28 July 2021 at about 1pm, you left the stand at Faleula from where you operate to pick up a passenger from Faleula tai. You were driving a taxi registration no. T4648. At the same time, the deceased, an 11 year old female had finished school and was on the bus with her mother and siblings heading home to Faleula uta.
5. They stopped the bus to get off and when they did, the victim walked directly behind the bus intending to cross the road. By the time she crossed, your taxi reached the point where the bus had stopped. She was struck by the front right side of your vehicle, thrown off her feet and landed on her head.
6. The original summary says that you were speeding. As amended it now says that you were driving at a speed of more than 50kmph and did not reduce speed to the required speed limit of 24kmph pursuant to the Road Code 2010.
7. Immediately after the incident you stopped and took the victim to hospital where she later died. The medical practitioner’s report to the coroner says that she suffered bruises all over her head, an open fracture on her left leg and bleeding from her mouth. The cause of death was severe head injuries. You turned yourself in later on the same day.
8. You told probation that you were stunned by the victim crossing from behind the bus and you had no time to swerve or stop to avoid the accident.

Victim

9. The victim is an 11 year old female of Faleula. She was with her mother and siblings when the accident occurred and her young life tragically taken away. The material before me says that she had got off first and her mother was getting change from the bus driver when she heard the sound of the impact.
10. Her father describes in a letter to probation how she is dearly missed. But he also confirms the reconciliation; their acceptance of the ifoga; how they feel partly blamed for the accident; and how they have found peace despite their loss and moved on. In the VIR her mother shares her devastation when doctors could do little to bring her back. She is surprised that you have not had your licence revoked up to now.

Aggravating Factors

11. The aggravating features of your offending are:
    • (i) Speeding – the summary says that you were speeding. But speeding alone does not constitute negligence. I also accept from your counsel’s submission that you had reduced speed when approaching the bus. Whether or not you considered the potential risk of pedestrians crossing behind, I bear in mind that the deceased was also at fault. She suddenly crossed onto your lane. You could do little to avoid her being hit;
    • (ii) Impact – the deceased suffered serious injuries to her head, leg and mouth. The severity of her head injuries led to her death.

Mitigating Factors

12. The mitigating features of your offending are:
    • (i) You reduced speed but the deceased suddenly crossed onto your lane when it was not clear or safe to do so;
    • (ii) You stopped the vehicle after impact and rendered the victim assistance;
    • (iii) You voluntarily turned yourself in to police.
13. Personal to you as offender, I consider the following:
    • (i) Guilty plea;
    • (ii) Ifoga – the pre sentence report confirms the presentation of large fine mats and sum of $10,000 plus $3,000 in the form of ‘lafo’. The ifoga was accepted and the deceased’s father says that that you are also related to his wife and mother of the deceased;
    • (iii) Contribution to the funeral – your family also made a presentation at the funeral and so did your employer on your behalf;
    • (iv) Personal circumstances – you are 26 years of age and married with 2 young children aged 6 and 4 years. You have been working as a taxi driver earning an average income of $200 per week. The testimonials from Bishop Pasi, the pulenuu Laupa Etuale Tauala, your employer and your wife describe you as a hardworking, responsible and caring member of your church, village and family. You are the sole breadwinner for your young family. A mandatory disqualification from driving consequent upon your conviction for this offence will impact your ability to support your family. You cooperated with police investigation and I accept that you are remorseful. You are a first offender and you will live the rest of your life knowing that your actions resulted in the death of a young girl. That will be greater punishment in itself.

Discussion

14. Until 20 March 2020, cases of negligent driving causing death were dealt with in the District Court. The significant increase in the maximum penalty to 10 years’ imprisonment or a fine of $25,000 for negligent driving causing death; and 7 years’ imprisonment or a fine of $20,000 for negligent driving causing injury is clear evidence of Parliament’s intention to stamp out the increasing number of injuries and fatalities resulting from reckless and irresponsible driving without any regard for the safety of road users.
15. Tragically this incident resulted in the untimely death of a young girl who had her whole life ahead of her. But it also highlights the real need for better awareness of safe road use practices by everyone. It is not enough to increase penalties and hope that reckless driving on the roads would be deterred.
16. More action must be taken to prevent traffic accidents. Simple measures such as drivers reducing speed when approaching a bus dropping off passengers and anticipating the risk of someone crossing; passengers crossing only when the bus leaves and they have a clear and safe view of the road; and parents not allowing young children near or on the road unsupervised.
17. The approach to sentencing for negligent driving causing death was discussed in Seuoti v. Police [2006] WSSC 48 (1 September 2006) where the Supreme Court said of the District Court sentencing practice at the time as follows:
    • “ ... 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) Accidents caused by driving in a manner which shows selfish disregard of other road users or of his passengers, or with a degree of recklessness (higher end of the scale of negligence).”
18. The same was applied in Police v. Keiji Li [2017] WSSC 170 (8 November 2017) and most recently in Police v. Vaamainuu (1 July 2022) where Clarke J refers to a number of cases prior to the increase in penalty and notes that those that fell within category 1 attracted non - custodial sentences; and cases that fell within category 2 attracted custodial sentences.
19. Coming back to your case, this is another tragic incident of a young child crossing the road behind a stationary bus when it was unsafe to do so and without any supervision by an adult. I have said before that speed alone does not constitute negligence. And in my view, there was no chance you could have safely avoided the victim even at reduced speed. If there was any negligence on your part, it would be at the lowest end of the scale. It would fall within the first category identified in Seuoti and the Court could simply impose a non custodial sentence as recommended by probation and your counsel.
20. But I have considered whether this is an appropriate case for the exercise of the court’s discretion to grant a discharge without conviction under s69 Criminal Procedure Act, even in the absence of an application by your counsel. The law on discharges without conviction is well settled (see Attorney General v. Ropati [2019] WSCA 2 (15 April 2019). The approach is that the Court must:
    • (i) Assess the gravity of the offending, a task which includes having regard to aggravating and mitigating factors;
    • (ii) Identify the direct and indirect consequences of a conviction;
    • (iii) Decide whether the consequences of a conviction would be out of all proportion to the gravity of the offending;
    • (iv) Exercise a discretion as to whether a discharge should be the outcome.
21. I have assessed the gravity of your offending to be at the lowest end of the scale of offending.
22. A direct consequence of your conviction for this offending would be a mandatory disqualification of your driver’s licence for a period of 1 year or more under s39A(3)(b). You are employed as a taxi driver and earn an average weekly salary of $200. You are the sole breadwinner for your young family. A conviction will surely impact your ability to support them.
23. I am satisfied therefore that the consequences of a conviction on you would be out of all proportion to the gravity of the offending.
24. I am further satisfied that this is an appropriate case for the exercise of the Court’s discretion in favour of a discharge without conviction.

Result

25. On the one charge of negligent driving causing death, you are ordered to pay court costs of $1,000 by 2pm this Friday 29 July 2022. Upon payment of those costs, you will be discharged without conviction.

Coronial Finding

26. As this Court also sits as a Coroners Court, I issue the Coronial Finding to certify that Melisa Faatauvaa, an 11 year old female of Faleula died at Tupua Meaole Hospital on the night of 29 July 2021 as a result of severe head injuries sustained in a traffic accident at Faleula uta on 28 July 2021. I further confirm that the driver of the vehicle involved has been dealt with according to the law.
    

JUSTICE FEPULEA’I A. ROMA