Police v Vaafusuaga [2023] WSSC 41 (3 August 2023)

IN THE SUPREME COURT OF SAMOA
Police v Vaafusuaga [2023] WSSC 41 (03 August 2023)

Case name:	Police v Vaafusuaga
Citation:	[2023] WSSC 41
Decision date:	03 August 2023
Parties:	POLICE (Prosecution) v BENJAMIN FAAFETAI VAAFUSUAGA, male of Fugalei & Faga Savaii (Defendant)
Hearing date(s):
File number(s):	File No: Charging document dated 18/10/21
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE NELSON
On appeal from:
Order:	Mo le mataupu lenei ia o le faaiuga lena a le Fa'amasinoga mo le moliaga lena Benjamin e fa (4) tausaga e te nofo sala ai ile toese. Ae a iai se taimi sa e nofo taofia ai e faatalitali le fa’aiuga e tatau ona toese mai le fa (4) tausaga lena.
Representation:	J. Pickering for Prosecution A. Sua’ for the Defendant
Catchwords:	Negligent driving causing death – defendant grossly intoxicated – car speeding – motor vehicle accident – was racing other cars – first offender – custodial sentence.
Words and phrases:	“ifoga carried out” – “defendant’s family contributed to victim’s lauava & funeral expenses”.
Legislation cited:
Cases cited:	Police v Vaamainuu [2022] WSSC 31; R v Boswell [1984] 3 AllER 353.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

BENJAMIN FAAFETAI VAAFUSUAGA male of Fugalei and Faga Savaii.

Defendant

Counsel: J Pickering for prosecution
A Su’a for defendant

Sentence: 03 August 2023

SENTENCE

1. The defendant pleaded guilty to a charge that at Taufusi on 21 August 2021 he did drive a motor vehicle namely a Subaru Legacy plate number 30680 in a negligent manner on Vaea Street in Apia and thereby caused the death of Nili Faauma a male of Fugalei and Sataoa Safata.
2. As this court also sits as a Coroners Court I make the Coronial Finding that Nili Faauma, a male 27 years of age of Fugalei and Sataoa Safata died from injuries sustained in a motor vehicle accident that occurred on Vaea Street in Apia on the night of 21^st August 2021. I further certify that alcohol played a significant role in this accident.
3. The undisputed Police summary of facts states that the defendant is a 23 year old male of Fugalei, Faga and Salailua in Savaii, single and was at the time of the accident employed by the Samoa Water Authority. On the night in question he was driving a black Subaru Legacy vehicle plate number 30680.
4. The night of 21 August 2021 at around 11:15 p.m. the defendant and the deceased were travelling on Vaea Street in the defendants Subaru Legacy. Prior to the accident they had both been out drinking alcohol with friends at the Marina Bar at Matautu-Tai.
5. The Police summary notes the defendant was intoxicated. That is an understatement. The defendants own cautioned statement to the police reads as follows:
   • “Fesili: O le a le taimi na e alu ese ai ma le fale kalapu?
   • Tali: Ou te le’i iloa le taimi, ae pau a le tala na ou iloaina mulimuli o le taimi lava na tapuni ai le fale kalapu na ou alu ese ai.
   • Fesili: O ai na lua omai faatasi i lau taavale?
   • Tali: Ou te leiloa lava ma se mea poo ai na ma omai i la’u taavale ma ou te leiloaina se Nili na ma o i la’u taavale.
   • Fesili: Na e iloa na iai Nili i totonu o lau taavale i le taimi na lavea ai?
   • Tali: Leai, o a’u na ou leiloa mai lava se mea i le taimi na ou alu ese mai le fale kalapu ona sa matua’i ova lo’u onā (blackout). E pau le taimi na ou iloaina na ou te’i ane o loo o’u taoto i le falemai i Motootua.”

The defendant was not merely intoxicated, he was grossly intoxicated.

6. After leaving the Marina Bar the defendant drove down Vaea Street travelling from North to South that is from the Apia town clock heading towards Mount Vaea. The Police summary says at that time two other vehicle were racing with the defendant on Vaea Street. The defendants car was speeding and the defendant was driving well in excess of the prescribed speed limit.
7. When the Subaru reached the three corners in front of Ah Liki Wholesale it suddenly swerved to the right and hit the EPC concrete block in front of the Sai Motors Compound. This caused the car to flip upside down with its wheels in the air and it did a 180 degree turn and ended up facing the town clock.
8. Passersby in the area rushed to the scene and extracted the defendant and the deceased from the car. An off-duty Police Officer who was also present at the scene reported the matter to the Police for assistance and FESA took the deceased to the hospital where he was pronounced dead on arrival.
9. The deceaseds medical report notes findings on clinical examination included bleeding from the mouth, no signs of life, fixed dilated pupils. X-rays revealed he also had fractured ribs and the cause of death certified by the examining physician was stated to be traumatic brain injury secondary to the motor vehicle accident.
10. These facts undoubtedly show the offending was serious and indeed was tragic. The documentation before me indicates the defendant and the deceased were best friends. They grew up together and they were described by many as being ‘brothers’. There is no doubt that the defendant will have to live for the rest of his life remembering what happened on this evening.
11. The courts function today is to issue a sentence for his behaviour which holds him accountable for his actions. The sentence must also denounce his conduct in getting behind the wheel of a vehicle when obviously he was in no condition to drive. And most importantly the courts sentence must continue to send a message to all young men and women of this country in an effort to try and avoid this sort of catastrophic consequence occurring. The courts message is simple: if you drink, don’t drive, if you drive, don’t drink. And if you drink to excess you certainly should not drive. And the courts message must also be to the friends of the defendant that they were drinking with. If you see your friend is too drunk take the keys off him, ring a taxi, ring up his family, don’t let your drunk friend drive. That is what good friend do, they protect each other. But for the grace of God Benjamin it could have been you who died. And looking at the facts of your case it could easily have been the both of you that died.
12. You have pleaded guilty to negligent driving causing death. Cases like this coming before the Samoan courts generally fall into two categories. These categories are established by the decision of R v Boswell [1984] 3 AllER 353 and were recently usefully reviewed by this court in Police v Vaamainuu [2022] WSSC 31.
13. The first category are accidents caused by momentary inattention or error of judgment these lie at the lower end of the negligence scale. The second and more serious category are accidents caused by driving in a manner that shows a selfish disregard for the safety of others and driving in a manner that shows a high degree of recklessness. This is at the opposite end of the negligence scale. Drunken driving falls into the second of the two categories and it normally attracts a sentence of imprisonment.
14. It is also worth noting that the maximum penalty for negligent driving causing death was increased in 2020 by Parliament from a maximum of 5 years to 10 years imprisonment and for fines from $2,000.00 to $25,000.00.
15. This is a recognition by Parliament of the seriousness of such offending because it has resulted in the loss of a human life. It is also an indication of the concern of the Parliament of this country about the rising number of these kinds of cases coming before the court. A concern shared by the courts resulting in a very firm policy that little leniency is extended to people who come before the court on cases of drunken driving causing death.
16. The aggravating factors of your case include not only the excessive amount of alcohol you consumed but also the fact that you were engaged in a race on one of the main roads in Apia. The witnesses to your accident described the racing to be at very high speed and certainly well in excess of the internal 25mph speed limit of the Apia town area. It is also an aggravating factor that your actions have cut short the life of your friend, a young man who according to the documents before me was only one year away from qualifying as an EFKS pastor from Malua. He had his whole life before him and your actions took that away Benjamin and for no good reason.
17. Considering all the relevant factors and the need to continue to demonstrate to the public how seriously the law regards this type of offending, the need for deterrence trumps all other considerations. Ten (10) years is the maximum penalty for this offending but sentencing in this case should in my view start at 6 years in prison.
18. From that I make deductions for the mitigating factors which your counsel has properly pointed to. Firstly you are a first offender you have a clean driving record. You have a good pre-sentence report and clearly you are a person of good character as testified to in the many references attached to your report. References from your employer, your faifeau and many other people. I apply the normal deduction of six (6) months for those factors.
19. Secondly the court accepts the usual customary ifoga and reconciliation has occurred. Your family has also contributed significantly to the deceaseds “lau’ava” and funeral expenses and indeed the deceaseds parents in their victim impact report make reference to your ongoing support of them. This again indicates that you are a person with a good heart, you are trying your best to make amends for what you did, I accept that. In respect of the settlement I will apply the usual deduction of six (6) months from your sentence. But I will deduct a further six (6) months to properly reflect your obvious genuine remorse and your attempts to right the wrong you did. Because a persons actions always speaks louder than their words. Those deductions total eighteen (18) months deducted from the start point of sentence of six (6) years, leaves four and a half (4½) years balance.
20. Your counsel has argued that there should be a further deduction because of your young age. It seems clear you were twenty-three (23) years of age at the time of the accident but the pre-sentence report indicates you were almost 24 you were in fact in August 2021 a few months away from your twenty fourth (24^th) birthday. It also appears you are a graduate of APTC and have been working since eighteen (18) years. Deductions for young age is normally given to twenty-one (21) year olds down recognising their immaturity impetuosity and prospects of rehabilitation. But you were an educated young man working at the time and you were just under twenty four (24) years of age. You were old enough and mature enough to make good choices. The problem is on this occasion you did not. I do not consider that you qualify for a deduction because of your age.
21. But what you are entitled to is a deduction for your guilty plea which according to the file was entered on trial day because you initially pleaded not guilty to the charge. Had the guilty plea been entered earlier you would have qualified for a larger deduction but because it was only entered on trial day after some years you only qualify for a ten percent (10%) deduction from the balance of your sentence. It is ten percent (10%) because it did save some of everyones precious time by your pleading guilty. Ten percent (10%) of four and half (4½) years is about 5.4 months which I will increase and round off to six (6) months as a deduction. That leaves a balance of four (4) years in prison.
22. There are no other deductions or adjustments that need to be made to your sentence. In respect of this charge you will be convicted Benjamin and sentenced to four (4) years in prison. Any time you spent in custody awaiting trial is to be deducted from that four (4) years.
23. Mo le mataupu lenei ia o le faaiuga lena a le Fa'amasinoga mo le moliaga lena Benjamin e fa (4) tausaga e te nofo sala ai ile toese. Ae a iai se taimi sa e nofo taofia ai e faatalitali le fa’aiuga e tatau ona toese mai le fa (4) tausaga lena.
    

JUSTICE NELSON