Police v Maiava [2023] WSSC 94 (8 December 2023)

IN THE SUPMREME COURT OF SAMOA
Police v Maiava & Anor [2023] WSSC 94 (08 December 2023)

Case name:	Police v Maiava & Anor
Citation:	[2023] WSSC 94
Decision date:	08 December 2023
Parties:	POLICE (Informant) v MIKAELE MAIAVA (First Defendant) and TALOSAGATUUFAATASI FAATAGI (Second Defendant)
Hearing date(s):	26th – 28th June 2023 Submissions: 23rd August 2023
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of negligent driving causing death, both defendants are convicted and sentenced to 2 years imprisonment. Remand in custody time to be deducted from that term. On the charge of dangerous and reckless driving, as observed, the defendants conduct was reckless and extremely dangerous, beginning from at or immediately before the Leulumoega Primary School hump to where the accident occurred. On that charge, the defendants are likewise convicted and sentenced to 12 months imprisonment, that term is to be served concurrent to the 2 year term. It will also be ordered that the defendants driving licenses are to be suspended forthwith and are not to be reinstated until the defendants undertake and pass the Land Transport Authority Defensive Driving Course or equivalent, certifying their competence to be safe and responsible road users.
Representation:	L. Taimalelagi for prosecution M. Lui for first defendant L. Sio-Ofoia for second defendant
Catchwords:	Negligent driving causing death – reckless and dangerous driving
Words and phrases:
Legislation cited:	Road Traffic Ordinance 1960, s. 39A
Cases cited:	Police v Vaafusuaga Police v Alapati Police v Siaosi
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

MIKAELE MAIAVA, male of Moamoa.

First Defendant

A N D:

TALOSAGATUUFAATASI FAATAGI of Leulumoega.

Second Defendant

Counsel: L. Taimalelagi for prosecution
M. Lui for first defendant
L. Sio-Ofoia for second defendant

Hearing: 26, 27, 28 June 2023

Submissions: 23 August 2023

Decision: 13 October 2023

Sentence: 08 December 2023

SENTENCE

1. After a defended hearing, the two defendants were found guilty of the following charges:
   • (i) The first defendant Mikaele Maiava pursuant to information S239/20 alleging that at Leulumoega Tuai on 09 November 2019 he did drive a red Ford Ranger negligently causing the death of Aniseko Sagato a 23 years old male of Vaiusu in violation of section 39A of the Road Traffic Ordinance 1960.
   • (ii) The second charge is information S240/20 which charges the first defendant at the same place and time with reckless and dangerous driving.
2. The second defendant Talosagatuufaatasi Faatagi faces identical charges in relation to his driving of a white Toyota Hilux pickup registration number 26143.
3. As this case involves death by a motor vehicle accident, a Coroners Finding is also required. But because there are many disturbing aspects of the case from a Coronial Inquiry stand point, I will issue the Coroners Finding by separate decision. A copy of that finding will be issued to the Police and to counsels in due course.
4. The facts of the present matter were fully canvassed in courts written decision delivered on 13 October 2023.
5. Those show that the defendants after turning into the Cross-Island road from Leulumoega to Lefaga. Shortly before or at the road hump in front of the Leulumoega Primary School, began engaging in what was essentially a road race, uphill for some 1½ miles. Fortunately there was no oncoming traffic on the road at the time. And the roadway was deserted except for an eye witness who was standing on the top of the hill on a long strait - watching the tragic events below him unfold.
6. After engaging in several overtaking maneuvers, the inevitable occurred and the vehicles driven by the two defendants collided. Both left the road. In the case of the red Ford Ranger driven by Mikaele it ended upside down in the undergrowth some distance away from the edge of the road. The vehicle driven by his co-defendant Talosagatuufaatasi ended up on its side atop of some vegetation a few meters from the road edge. Both vehicles were on the Faleolo Airport side of the road.
7. It is indeed fortunate there were no other vehicles or pedestrians in the area when the accident occurred. But the tragedy is that a passenger in Mikaele’s vehicle namely his 23 year old employee Aniseko Sagato died at the scene from wounds sustained in the accident.
8. This matter led to the charges against the defendants of which they have as noted earlier been found guilty.
9. The offence of negligent driving causing death carries a maximum penalty at law of 10 years imprisonment or a $25,000 fine. Given the circumstances of this matter, prosecution are seeking a start point for sentence of 5 to 6 years imprisonment.
10. They maintain that best serves the applicable principles of sentencing as codified in the Sentencing Act 2016 viz accountability for the harm caused, promoting in the defendants a sense of acknowledgment and responsibility for said harm, denunciation of their conduct as unacceptable and deterrence general and specific. But the penalty should also reflect the gravity of the offending and the defendants’ culpability. Further, the sentencing statute also mandates the court to take into account sentences imposed in similar cases in order to promote consistency.
11. A review of the relevant authorities on negligent driving causing death reveals that a 4 to 6 years starting point has been applied in cases with significant aggravating factors. For example a defendant driving while grossly intoxicated such as in Police v Vaafusuaga or where the defendant overtook at speed on a blind curve such as in Police v Alapati
12. I accept however that the present case falls into the second of the Vaafusuaga categories, namely an accident caused by the defendants driving in a manner that shows a selfish disregard for the safety of others and involving a high degree of recklessness. That is the more serious kind of negligent driving.
13. Other cases were also referred to by counsel but these pre-dated the increase in 2020 by Parliament of the maximum penalty for negligent driving causing death from 5 to 10 years and from $2,000 to $25,000 fine. They are thus of limited usefulness except on matters of principle.
14. The prosecution have correctly highlighted the aggravating features of this case. The road race the defendants were engaged in; how this continued for a distance of some 1½ miles uphill; the excessive speed and dangerous maneuvers undertaken by the defendants, for example in the overtaking of the one vehicle that was in front of them, the van of the witness Moresby Okesene; the fact that a 23 year old only child has had his life needlessly cut short and the effect and trauma that has brought to his parents and his family. To that can be added the further fact that it was the defendant Mikaele who was responsible for taking the deceased to Savaii for a job. As a driver, he had the life of this young man and the others in his vehicle in his hands. Hands which ultimately killed the deceased.
15. Prosecution has also asked the court in regard to defendant Mikaele to take alcohol as an aggravating factor. But as noted in the courts decision, the evidence showed only that there was consumption of alcohol in Savaii before the party boarded the ferry to Upolu. But there was no evidence adduced to establish that at the time of the accident Mikaele was drunk or that the alcohol consumed by him impacted his judgment or ability to drive. Significantly absent was any evidence as to his alcohol blood level when admitted to Motootua Hospital post-accident. Something which the Police clearly failed to check and which will be canvassed in the courts Coronial Ruling.
16. Whilst I agree therefore with the Police that Mikaele should not have consumed any alcohol while in charge of a motor vehicle, absent such evidence, the court has no basis to conclude alcohol was a contributing factor to the accident. This is different to Police v Siaosi cited by counsel where the evidence was the defendant was immediately prior to the accident “drinking beer inside his vehicle” and where the report of the Faleolo Police to whom the defendant surrendered himself post-accident was that the defendant was “under the influence of alcohol when he turned himself into the Police.”
17. Considering all the relevant circumstances in particular the unacceptable reckless conduct exhibited by the defendants, which must be weighed against the deserted road conditions at accident time, plus the needless loss of a young man’s life, imprisonment is in my view is required in accordance with the abovementioned sentencing principles. In particular it is necessary above all else to send a clear and unambiguous message to all drivers, whether they be boy racers or menopause racers, that the road is not your playground. Your car is not a plaything, its capabilities are to be feared and respected. When you drive you are not Michael Schumacher and the roads of this country are not a Formula One racetrack. And if you suffer as many these days appear to from such delusional fantasies, then you should take a lesson from what has happened to these two defendants and where their antics and behaviour has led them – straight to the gates of Tanumalala Prison.
18. There is no basis for differentiating between the two defendants. They were both engaged in the road race, dangerously overtaking one another at different stages, resulting in the vehicles colliding, causing the accident which killed the deceased. Sentence for both of you will therefore start at 3½ years imprisonment.
19. You are both first offenders and you both have good pre-sentence reports outlining your record of service to your ekalesia, families and to the community as substantiated by the many testimonials filed in your support. The defendant Talosagatuufaatasi is pulenuu of his village and the other defendant Mikaele is a well-known Tokelauan activist and contributor to numerous community projects both domestic and international. I have no doubt his skills as a horticulturalist and gardener will be useful while he serves his time. Defendants will receive the usual deduction of 6 months to reflect these factors. Leaves a balance of 3 years
20. There has been full customary settlement and reconciliation between both defendants and the deceased’s family as confirmed in their pre-sentence reports. That is the proper and appropriate thing to do in accordance with our tu and aganuu. Defendants will receive a further 6 months deduction for this. Leaves a balance of 2½ years.
21. I am impressed by one further factor which is highlighted not only in Defence Counsels submissions but also in the pre-sentence reports. And that is the fact that they have not only expressed remorse, but they have gone further and practiced remorse. In that since the accident, they have actively continued to support the parents and family of the deceased. Mikaele’s pre-sentence report states that:
    • “Mikaele has provided money and food for the family of the victim every week. Additionally, if they needed financial assistance for family obligations they contact him. The parents have made it known that they wholeheartedly forgive Mikaele and humbly request for a non-custodial sentence for Mikaele as not only does he provide significantly for their family but they have come to regard him as their son.”
22. Similarly Talosagatuufaatasi’s pre-sentence report reads:
    • “According to the victim’s parents, since the day of the incident, there has not been a time where they approach Talosaga unsuccessfully for assistance for money or fine mats. Not once have they returned home empty handed. Talosaga has been compassionate and generous towards them. They therefore humbly seek the courts leniency.”
23. It is to the defendants’ credit that not only they have expressed remorse but they walked their talk. Something they should receive in my view further credit for. A further 6 months is deducted from their sentence to reflect this. Leaves a balance of 2 years imprisonment. No further adjustment is required to be made to their sentences.
24. On the charge of negligent driving causing death, both defendants are convicted and sentenced to 2 years imprisonment. Remand in custody time to be deducted from that term.
25. On the charge of dangerous and reckless driving, as observed, the defendants conduct was reckless and extremely dangerous, beginning from at or immediately before the Leulumoega Primary School hump to where the accident occurred.
26. On that charge, the defendants are likewise convicted and sentenced to 12 months imprisonment; that term is to be served concurrent to the 2 year term.
27. It will also be ordered that the defendants driving licenses are to be suspended forthwith and are not to be reinstated until the defendants undertake and pass the Land Transport Authority Defensive Driving Course or equivalent, certifying their competence to be safe and responsible road users.
    

JUSTICE NELSON