Police v Seumanu [2023] WSSC 2 (3 February 2023)

IN THE SUPREME COURT OF SAMOA
Police v Seumanu [2023] WSSC 2 (03 February 2023)

Case name:	Police v Seumanu
Citation:	[2023] WSSC 2
Decision date:	03 February 2023
Parties:	POLICE (Prosecution) and FALANIKO SEUMANU, male of Vaitele-tai (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	The defendant is accordingly convicted and sentenced as follows: (a) on the charge of negligent driving causing death, you are convicted and sentenced to 2 years and 11 months’ imprisonment; (b) on two charges of negligent driving causing injury a 12 months’ imprisonment for each charge. (c) The imprisonment terms are to be served concurrently less any time remanded in custody. The defendant is also disqualified from holding or obtaining a driver’s license for a period of 4 years.
Representation:	I. Tanielu for Prosecution M. Soonalole for the Defendant
Catchwords:	Negligent driving causing death – negligent driving causing injury – intoxicated – victims’ passengers in car – one death – banished – early guilty plea – custodial sentence.
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960, ss. 39A(1); 39A(2); 39A(3).
Cases cited:	Becroft and Hall’s Transport Law (NZ), Lexis Nexis NZ Ltd (OnLine Edition), SPPC, 8.2 “Culpability v Consequences”; Mapesone v Police [2003] WSSC 4; Police v Keji Li [2017] WSSC 170; Police v Siuaso [2014] WSSC 56; Police v Vaimainuu [2022] WSSC 31; R v Boswell (1984) 3 All ER 353; Seuoti v Police [2006] WSSC 48.
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

FALANIKO SEUMANU, male of Vaitele-tai

Defendant

Counsel: I Tanielu for the Prosecution
M Soonalole for the Defendant

Sentence: 03 February 2023

SENTENCING OF JUSTICE TUATAGALOA

The charges

1. Falaniko, you appear for sentence on the following charges that you later vacated not guilty pleas to and entered guilty pleas:
   • Negligent driving causing death pursuant to section 39A (1) & (3) of the Road Traffic Ordinance 1960 which penalty is maximum 10 years’ imprisonment or fine of not more than $20,000 and must be disqualified from holding or obtaining a driving licence for 12 months;
   • Negligent driving causing injuries (x2) pursuant to section 39A (1) & (2) of Road Traffic Ordinance 1960 which penalty is maximum 7 years or fine of not more than $20,000 and must be disqualified from holding or obtaining a driving licence for 12 months.

The offending

2. Accordingly, on 10 March 2021 the deceased and the two victims were having drinks at Junior Pope’s (victim) house in the afternoon when you (defendant) arrived with your partner, Lote to drop off the deceased shopping. Lote spoke with the deceased while you remained in the car. Shortly after, they (deceased and victims) all hopped into the car to go drop off the deceased shopping at his house located inland. On the way, you and Lote bought a box of Taula Strong beers (12 big bottles) and a big bottle of Maso Vodka. You arrived at the deceased’s house and had a barbeque and drinks. You were said to have drunk the vodka bottle with Ianuario (victim) while the deceased, Lote and Pope Junior (victim) drank the beers. When you finished drinking, you left to go home with Lote and on the way dropped off the two victims to their houses. The deceased also got into the car as he decided to spend the night at another family home. On the way, the car veered off the road and rolled.
3. Lote who is your partner is first cousins with Pope Junior. The deceased, Tomasone Ama Soesa a.k.a Kelekolio was their uncle. Ianuario is from the same village as Pope Junior and the deceased.

The victims

4. There are three victims of this offending. The deceased, Tomasone Ama Soesa, a 45 year old male; Ianuario Ieremia, 40 years of age and Pope Junior Soesa, 25 years’ old who both sustained serious injuries.

The injuries

Tomasone Kelekolio Soesa (deceased):

5. Dr Sebastian Paulo who was on duty at the Leulumoega Hospital when the deceased arrived noted the following:^[1]
   • No signs of life;
   • Likely traumatic brain injury with bleeding from the ears
   • Depressed skull fracture;
   • Multiple lacerations and abrasions;
   • Possible rib fractures.
6. Dr Paulo concluded that the cause of death was due to the following:
   • (i) Traumatic brain injury
   • (ii) Possible lemothorax (right side)
   • (iii) Excessive bleeding.

Ianuario Ieremia and Pope Junior Soesa

7. There was no medical report on the seriousness of the injuries sustained by the two victims. The Court was able to gauge their injuries from the Victim Impact Reports as follows:
   • Ianuario is said to have suffered serious injury to his back (gau aano le patua), lacerations and abrasions to his hands. Ianuario said that he was immobile for two months due to the injuries to his back. To date he has fully recovered and back to work.
   • Pope Junior suffered a back injury and lacerations and abrasions to his hands. Pope said that for three months his back was sore and underwent Samoan massage for about three months. To date he has fully recovered.
8. The deceased is the youngest of his family. His three older siblings who live overseas in a combined Victim Impact Report refer to the pain of losing their youngest brother, his life wasted and how much they miss him. They refer to the deceased as follows:
   • “Kele was funny, had a strong work ethic and although he was the youngest, he was someone we could always depend on. We relied on our brother Kele to look after our family home and farm in Samoa. Now that he is gone, our whole lives have been turned upside down and we’ve had to now relocate permanently to Samoa. We’ve had to sacrifice our home, our jobs, being with our kids and watching our grandkids grow up to relocate here. Life will never be the same for us.”

Aggravating Factors

9. The aggravating features of your offending are:
   • (a) alcohol was a contributing factor;
   • (b) you were driving when under the influence of alcohol;
   • (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) There was obviously speed as the vehicle rolled because the defendant could not control it.
10. There are no aggravating features personal to you as an offender. The Court notes that there has been no apology by either the defendant or his family to the deceased and the victims’ families.

Mitigating Factors

11. Mitigating factors personal to you that I accept are as follows:
    • (a) Banishment from the partner’s village of Leulumoega-tuai where he was living;
    • (b) The character references that accompany the PSR from the pulenuu, partner’s father and what is said by your partner in the PSR even though he has a previous conviction dating back 8 years; and
    • (c) I will take your change of plea as an ‘early guilty plea’.

Discussion

12. There have been too many lives lost in car accidents where alcohol and speed are involved. This is one of them. In this case, the defendant clearly did not heed the call by his passengers who became the victims to slow down. In the present case, the defendant was said to have consumed vodka (fagu Maso). He was obviously intoxicated but still got behind the wheel.
13. Due to the prevalence of road accidents costing people’s lives Parliament in March 2020 significantly increased the penalty for negligent driving causing death^[2] to a maximum 10 years or a fine of not more than $20,000. This places the offending within the jurisdiction of the Supreme Courts. The penalty for negligent driving causing injury was also increased to 7 years from maximum 5 years’ imprisonment or to a fine of not more than $20,000 and still remains within the jurisdiction of the District Courts.
14. In Seuoti v Police^[3], the Supreme Court observed the approach by the District Courts to sentencing for negligent driving causing death, per Vaai J:
    • “... 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 recognizes the two broad categories of cases in this area:
    • Accidents caused by momentary inattention or error of judgment (commonly known as the lower end of the scale of negligence); and
    • 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^[4] (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...”
15. Chief Justice Patu in Police v Siuaso^[5] reiterated the need for deterrence when passing sentence in cases of negligent driving causing death due to the prevalence of this type of offending. I agree.
16. The driver of a motor vehicle has a duty of care to other road users, pedestrians and passengers. There is a high degree of negligence involved when the defendant decides to drive although under the influence of alcohol and at the same time allows others to get into the car. I find nothing in the statements by those who were injured or the caution statement to say that the defendant refused the others from getting in the car as he was too drunk to take them home.
17. The defendant should never have driven that night after drinking alcohol and should never have agreed to give the others a lift home. Like so many who decide to drive when they believe they are not that drunk, the defendant had probably thought that he would never get into an accident. Sadly, a life has been lost and others were seriously injured. The burden of Tomasone a.k.a Kelekolio’s death will be one that the defendant will carry for the rest of his life, born from an error of judgment when he decided to drive whilst heavily intoxicated.
18. As the Court said earlier, too many lives have been lost as a result of people driving whilst under the influence of alcohol. Usually, where the driver is under the influence of alcohol speed is also involved. This case is no different. The defendant could not control the vehicle. As cited in Police v Keji Li ^[6]:
    • “The quality of the driving on the particular occasion is the most important consideration when fixing the sentence.”^[7]
19. Life is precious and to save lives the Court will not shy away from imposing appropriate sentence as a measure of deterrence for those who drink and drive. The consequences of making such a decision while under the influence of alcohol is usually fatal.
20. According to Seuoti the circumstances of this offending falls within the second category. Defence Counsel in submissions concedes that the culpability of the defendant falls within the negligence in the second category. Given the increased in penalty and the need for deterrence to save a lot of lives, a custodial sentence is considered appropriate unless there are special circumstances. There are no special circumstances before the Court to warrant a non-custodial sentence. An offer of employment in Australia is in my view not “special circumstances”. An offer of reparation by the defendant to the amount of $20,000 is not considered appropriate by the Court in the circumstances of this offending. The defendant must take responsibility for his behaviour; which behaviour has cost a life. The Court is also mindful that the defendant has a previous conviction for drunkenness and although it was some eight years ago from the date of the incident, the prior conviction is relevant as it involves alcohol, the same as present. Twice where alcohol is involved the defendant is convicted and sentenced.
21. The prosecution sought for a custodial sentence with a starting point of 5 years. Both counsels refer to Police v Vaimainuu^[8] where a 4 ½ year starting point was considered appropriate. I agree with defence counsel that Vaimainuu involved two innocent victims who were standing on the side of the road. In the present case, the victims knowingly got in to the defendant’s vehicle aware that the defendant was under the influence of alcohol albeit that the accident would have happened whether or not he had other people in the car.
22. On a totality basis a four year starting point is appropriate for the negligent driving causing death; less three months for the deceased getting in to the defendant’s vehicle knowing that the defendant was under the influence of alcohol. A further six months is deducted for other mitigating factors personal to the defendant except for his early guilty plea to which I further give a 10% discount for it was given more than a year later. The end sentence is 2 years and 11 months.

For the offence of negligent driving causing injury (x2) a term of 12 months’ imprisonment is appropriate for each charge.

Result

24. The defendant is accordingly convicted and sentenced as follows:
    • (a) on the charge of negligent driving causing death, you are convicted and sentenced to 2 years and 11 months’ imprisonment;
    • (b) on two charges of negligent driving causing injury a 12 months’ imprisonment for each charge.
    • (c) The imprisonment terms are to be served concurrently less any time remanded in custody.
25. The defendant is also disqualified from holding or obtaining a driver’s license for a period of 4 years.

JUSTICE TUATAGALOA

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^[1] Report of Medical Doctor to Coroners, dated 11.03.21 and Medical Report dated 21 December 2022.
^[2] Road Traffic Ordinance 1960, section 39A(3)
^[3] Seuoti v Police [2006] WSSC 48 (1 September 2006)
^[4] R v Boswell (1984) 3 All ER 353
^[5] Police v Siuaso [2014] WSSC 56 (14 October 2014); see also Mapesone v Police [2003] WSSC 4, Seuoti v Police [2006] WSSC 48.
^[6] Police v Keji Li [2017] WSSC 170 at [26]
^[7] Becroft and Hall’s Transport Law (NZ), Lexis Nexis NZ Ltd (OnLine Edition), SPPC, 8.2 “Culpability v Consequences”
^[8] Police v Vaimainuu [2022] WSSC 31 (1 July 2022).