Police v Faimoa [2022] WSSC 60 (26 October 2022)

IN THE SUPREME COURT OF SAMOA
Police v Faimoa [2022] WSSC 60 (26 October 2022)

Case name:	Police v Faimoa
Citation:	[2022] WSSC 60
Decision date:	26 October 2022
Parties:	POLICE (Informant) v LAALAA FAIMOA, male of Sataoa Safata & Vaitele-Fou (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	On the charge of negligent driving causing death, you are convicted and fined $2,000.00. That sum is to be paid by 2pm next Friday 4th November 2022, in default 4 months’ imprisonment. You are further disqualified from driving for a period of one year as mandatory under section 39A(3)(b) Road Traffic Ordinance 1960. I issued a coroner finding in respect on this matter. Coronial Finding Lastly I issue the coronial finding in respect of the deceased in this matter. I certify that Meleke Malielegaoi, a 51 year old male of Lepa and Saanapu died on arrival at the Tupua Tamasese Meaole Hospital on the 5th December 2021. The cause of death was traumatic head injuries sustained in a motor vehicle accident at Saanapu on the night of the 4th December 2021. I further confirm that the driver of the vehicle involved has been dealt with according to law.
Representation:	F. Ioane for Prosecution J. Brunt for the Defendant
Catchwords:	Negligent driving causing death – early guilty plea – ifoga – contribution to funeral expenses – remorseful – first offender – non-custodial sentence – monetary penalty.
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960, ss. 39A; 39A(3)(b).
Cases cited:	Police v Alapati [2022] WSSC 32; Police v Keiji Li [2017] WSSC 170; Police v Talamoni [2022] WSSC 45; 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

AND:

LAALAA FAIMOA male of Sataoa Safata and Vaitele fou

Defendant

Counsel: F. Ioane for Prosecution
J. Brunt for Defendant

Sentence: 26 October 2022

SENTENCE OF ROMA J

Charge

1. You are being sentenced this afternoon on one charge of negligent driving causing death contrary to s39A Road Traffic Ordinance 1960. The maximum penalty has since March 2020 increased to ten (10) years’ imprisonment or a fine of $25,000. You had denied the charge but on the 23^rd August this year when the matter was to be heard, leave was granted for you to vacate your denial and a guilty plea was entered to the charge.

Offending

2. On the 4^th December 2021 at Saanapu, the deceased a 51 year old male of Lepa and Saanapu and some men from his family had just completed construction work on his home. They consumed alcohol before the deceased, drunk was seen leaving the group and staggering towards the road. Not long after he left, he sat in the middle of the road, laid down and fell asleep. A vehicle heading from east to west came across him. The driver slowed down and noticed a body lying on the road. She stopped to check and confirmed that it was in fact a person’s body lying in the middle of the road. The summary says that the person’s head was placed just over the lane of the vehicles coming from the opposite direction. The driver became frightened and hopped inside the car, reversed to a nearby home and called for help. At the same time, she noticed lights of a vehicle approaching the bend from the opposite direction at speed. She began flashing her head lights to warn the driver from the opposite direction of the body lying on the road. But the driver from the opposite direction continued driving. That driver was you, and inside the vehicle were your wife and children. The summary further says that without reducing speed you drove over the deceased’s head and upper torso. You then stopped the vehicle to check what you had run over and noticed it was a person’s body. By that time people came running and fearing for your safety and that of your wife and children, you drove off and headed to Lotofaga police to report the incident. The deceased on the other hand was taken to hospital. According to the medical doctor’s report to the coroner, the deceased sustained the following injuries:
   • (i) a laceration to the left forearm deep into the muscles and vessels;
   • (ii) a deep laceration to the head; and
   • (iii) open fractures to his skull.
3. The deceased died as a result of traumatic head injuries. In the pre-sentence report you explained that you were on your way from Vaitele to Sataoa. At Saanapu you noticed a vehicle parked roadside on the opposite direction. The vehicle’s lights were on high beam which affected your vision. You dimmed your head lights three times to get the attention of the driver. As you got closer you became concerned that the other driver might have been under the influence of alcohol. You decided to manoeuvre slightly to the side of the road but found your vehicle running over something. You stopped to check and found that it was a person’s body. You drove to Lotofaga police and reported the incident.

Victim

4. The deceased victim was a 55 year old male of Lepa and Leauvaa. In the victim impact report his widow explains the difficulty they faced accepting that her husband had passed suddenly and unexpectedly. He had been their family’s breadwinner. She further says that she accepts that what happened was unintentional and an accident. She has forgiven you and confirms that an ifoga was conducted and accepted by their family. Your family also made a significant contribution to the deceased’s funeral. In the pre sentence report the deceased’s family confirms that a presentation of $5,000, 200 cartons of tinned fish, large fine mats and 2 cattle beasts was made. They express forgiveness and seek leniency in passing sentence.

Accused

5. You are a 53 year old father of six (6), brought up with nine (9) siblings and dependent on the plantation for support. You completed school at Year 12 level at Safata College. You were able to move overseas where you found employment in New Zealand, Australia and American Samoa. You returned to live permanently here in Samoa when your father became ill. I have read the testimonials by the chief of your family, your pastor at the Assembly Church at Sataoa, and pulenuu of Sataoa. They speak highly of your character and contribution to your family, the village and church. You continue to look after your parents. You are a first offender.

Aggravating Factors

6. In relation to your offending, prosecution submits that an aggravating feature is the degree of negligence. They argue that speeding and your failure to recognise the warning given by the other driver beaming high her headlights aggravate your offending. But the summary does not say at what speed you were driving. Through the submission by counsel, you also deny speeding and say that your vision was affected by the lights. You were unable to see the deceased, and concerned that the other driver might have been intoxicated, you steered towards the side of the road when you ran over something. I have given your explanation much thought and I am not satisfied that speed was a factor. In any event prosecution conceded when this matter was last called that your offending falls within category one, being the lower end of the scale.
7. But an aggravating feature of your offending is obviously the impact. Your offending resulted in serious injuries and death of the victim. The impact on the victim’s wife and family which I have referred to must also be considered. As offender there are no aggravating factors personal to you.

Mitigating Factors

8. The first relates to the circumstances of your offending. No alcohol was involved and as expressed earlier, I am not satisfied that speed was a factor. Your vision was impaired and there was little chance of you knowing that the deceased or any person was lying on the road. Compared to other matters that have come before the Court, the gravity of your offending is at the lower end of the scale.
9. The second mitigating feature of the offending is the fact that the deceased has been sleeping in the middle of the road. That is a significant mitigating factor.
10. Thirdly is the fact that immediately after the incident you reported the matter to police.
11. Personal to you as offender I take into account these factors:
    • (i) your guilty plea to the charge;
    • (ii) the ifoga and reconciliation confirmed by the material before me;
    • (iii) the substantial contribution by your family to the family of the deceased;
    • (iv) your personal circumstances; the testimonials attached to the probation report; the fact that you have accepted responsibility and expressed genuine remorse. You are also a first offender.

Discussion

12. The maximum penalty for negligent driving causing death as I have said before was increased in March 2020 to ten (10) years imprisonment or a fine of $25,000. In the case of Seuoti v. Police [2006] WSSC 48 (1 September 2006), the Supreme Court in an appeal against sentence from the District Court recognised that there were two (2) broad categories of cases of negligent driving causing death and or injury.
    • (i) accidents caused by momentary inattention or error of judgment (the lower end of the scale);
    • (ii) accidents caused by driving in a manner that shows a selfish disregard of other road users or of his passengers or with a degree of recklessness (the higher end on the scale).
13. The same approach was applied in Police v. Keiji Li [2017] WSSC 170 (8 November 2017) and more recently in Police v. Vaamainuu [2022] WSSC 31 (1 July 2022); Police v. Talamoni [2022] WSSC 45 (26 July 2022); and Police v. Alapati [2022] WSSC 32 (27 July 2022). As noted in those cases, the cases that fell within the first category attract non custodial sentences and those within the second category attract custodial sentences.
14. I have found your offending to fall within the first category, a position conceded by prosecution despite earlier submitting in its sentencing memorandum that it falls within the second category and should therefore attract a custodial sentence. Again in your matter speed was not a factor, no alcohol was involved, your vision was impaired by lights from the opposite direction and you had little chance of knowing that the deceased was lying on the road. Prosecution in its sentencing memorandum cites two (2) unreported sentences which were both decided when cases of negligent driving causing death were dealt with in the District Court. As expressed to prosecution when this matter was last called and for the reasons mentioned above, those two cases have very little if any relevance to this matter. Having said all of that, I find that a non-custodial sentence is appropriate. Probation Service recommends a monetary penalty which I accept as appropriate in your case.

Result

15. On the charge of negligent driving causing death, you are convicted and fined $2,000.00. That sum is to be paid by 2pm next Friday 4^th November 2022, in default 4 months’ imprisonment. You are further disqualified from driving for a period of one year as mandatory under section 39A(3)(b) Road Traffic Ordinance 1960. I issued a coroner finding in respect on this matter.

Coronial Finding

16. Lastly I issue the coronial finding in respect of the deceased in this matter. I certify that Meleke Malielegaoi, a 51 year old male of Lepa and Saanapu died on arrival at the Tupua Tamasese Meaole Hospital on the 5^th December 2021. The cause of death was traumatic head injuries sustained in a motor vehicle accident at Saanapu on the night of the 4^th December 2021. I further confirm that the driver of the vehicle involved has been dealt with according to law.
    

JUSTICE ROMA