Police v Sinclair [2024] WSSC 101 (15 November 2024)

IN THE SUPREME COURT OF SAMOA
Police v Sinclair [2024] WSSC 101 (15 November 2024)

Case name:	Police v Sinclair
Citation:	[2024] WSSC 101
Decision date:	15 November 2024
Parties:	POLICE (Informant) v EDWIN SINCLAIR, male of Vaivase (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court – CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	On the charge of negligent driving causing death, you are convicted and sentenced to: (a) reparation order of $5,000.00 to be paid to Cynthia Tokuma, the mother of Emmanuel in a single lump sum payment within two (2) calendar months from today; (b) fine of $5,000.00 to be paid within 28 days, in default, 6 months imprisonment; and (c) 150 hours of community work. It is clear to me Edwin that you are a real risk to other road users. You demonstrate a serious hearing impediment often making you appear confused. Pursuant to section 39A(3)(b), your driver’s license is revoked and you are disqualified from holding a driver’s license for a period of 3 years. You are not to be re-issued with a driver’s license after that period until you have passed a driving test for the class of vehicle that you wish to then drive.
Representation:	J Leung Wai for Prosecution T Leavai for Accused
Catchwords:	Negligent driving causing death
Words and phrases:
Legislation cited:
Cases cited:	R v Boswell (1984); Seuoti v Police [2006] WSSC 48 (1 September 2006).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

EDWIN SINCLAIR, male of Vaivase

Accused

Counsel: J Leung Wai for Prosecution
T Leavai for Accused

Submissions: 6^th September and 11^th October 2024.
Sentence: 15^th November 2024

SENTENCE

1. Edwin Sinclair, you appear for sentence on one charge of negligent driving causing death which carries a maximum penalty of up to ten (10) years imprisonment and a fine not exceeding 250 penalty units.

The Offending

2. You pleaded not guilty and the matter proceeded to trial. The full facts are set out in my judgment dated 5^th August 2024. In short, you had finished work on the evening of the 29^th September 2022 and were driving home on Vaitele Street from Vaitele to Vaivase. At Vailoa, two year old Emmanuel Sani Tokuma was standing on the seaward side of the road off the main road. As you drove to Vaivase, you strayed off Vaitele Street and struck Emmanuel killing him. While there was some evidence that you may have been on your phone at the time distracting you and causing you to swerve off the road, I did not find that evidence cogent or sufficiently reliable and accordingly did not accept that evidence. Speed and alcohol is also not a relevant factor in this case.

The Accused

3. You are now a 70 year old man. According to your Pre-Sentence Report, you were raised by your maternal family in Matautu. You are the second eldest of five children. You completed High School and worked at Price Waterhouse Auditing, seemingly in Samoa. It is unclear whether you have any formal accounting qualifications. In 1983, you told the Probation Service you began work with Andrew Ah Liki. In Mr Ah Liki’s letter, he however states you started with him in 1994 and have worked there consistently since.
4. You have positive character references and there is no evidence of any prior convictions.

The Victim

5. The victim is 2 year old Emmanuel Sani Tokuma. He is the son of Cynthia Tokuma from Tanugamanono. Emmanuel had accompanied his two aunties to the store that evening. One of his aunties had gone back to the store to buy him a pepa keke. When she came out of the store, he was excited to see his aunty with the pepa keke. His second aunty placed him down adjacent to the road and he ran to her. As he ran to her, he stopped before reaching her and that is when your car swerved off the road, struck him and killed him. Emmanuel died from severe traumatic chest and brain injuries.
6. Emmanuel was a deeply loved child. His mother speaks of the pain of his death and her sadness. The pain of her young child’s death will no doubt follow her for the rest of her life.

Aggravating factors

7. The aggravating factors of your offending are (a) the impact of your offending on the victim’s family; and (b) the scale of your negligence failing to maintain proper attention to your driving and the road when there were a number of pedestrians on the side of the road

Mitigating Factors

8. The Pre-Sentence Report refers to an ifoga having been carried out. A letter dated 24^th October 2024 signed by Emmanuel’s family is referred to in reliance of an ifoga having been carried out. In her Victim Impact Report however dated 13^th August 2024, Emmanuel’s mother describes the events of the so called ifoga as:
   • “Sa oo atu le oloo molia ma nisi o lona aiga e faatino le latou faatoesega, pe a fua atu ile auala na faatino ai e le’o se ifoga sa o atu lava tutu i fafo e aunoa ma se tasi sa puloa ise ietoga e atagia ai o se ifoga.”
9. What was carried out by your family was not an ifoga. There are nevertheless a number of mitigating features:
   • (a) your prior good character;
   • (b) the apology and reconciliation that has taken place with the victim’s family and which has been accepted; and
   • (c) your remorse reflected in the Pre-Sentence Report.

Discussion

10. Edwin, on the 29^th January 2022, your negligence robbed a two-year old boy of his life. That fact should weigh heavily on your conscience for the rest of your days. In her Victim Impact Report, Emmanuel’s mother speaks of her disappointment that you disputed the charges against you for so long, prolonging the weight of this matter on them. You pleaded not guilty and attributed blame for Emmanuel’s death on Emmanuel himself. I found your evidence unconvincing and rejected that part of it. Responsibility for Emmanuel’s death lays at your feet.
11. In Court, I have struggled to see an inkling of remorse. I however have given you the benefit of the doubt on the question of remorse given what is stated in the Pre-Sentence Report and that your apparent lack of remorse in Court may be due to your very poor hearing and sometimes confused appearance. The deduction for remorse is however tempered by your not guilty plea.
12. Prosecution correctly sets out the Samoan courts approach to sentencing for negligent driving causing death applying R v Boswell (1984). This can be broken down into two broad categories:
    • (a) accidents caused by momentary inattention or error of judgment; and
    • (b) accidents caused by driving in a manner which shows a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness.
13. Generally, cases falling within the first category attract non-custodial sentences. Cases that fall within the second category attract custodial sentences unless there are very special circumstances otherwise.^[1] Both prosecution and your counsel submit that your case involves momentary inattention and recommended a non-custodial sentence.
14. It is unclear Edwin why you strayed into the pedestrian area of the roadway killing Emmanuel. While there was some evidence you may have been on your phone, as I said, I did not accept that evidence. Had I been satisfied that you were on your phone, today’s outcome would be quite different for you. I accept what both counsel say and infer that your case was one of momentary attention and falls within category 1 where generally, non-custodial sentences are imposed. Given however that it was daylight and clear that pedestrians were on the roadside and your attention should not have been elsewhere, today’s sentence will be at the high end of non-custodial sentences.
15. A Reparation Report from the Probation Service has been provided. The Probation Service notes that $2,000.00 and a fine mat were presented as part of the apology and reconciliation. This was accepted. Further, $10,000.00 was paid to assist with the funeral expenses. Prosecution and defence agree to a reparation order in the sum of $5,000.00 would be appropriate. I agree and will impose a sentence of reparation. The sentence however will also include payment of a fine and community work.

Result

16. On the charge of negligent driving causing death, you are convicted and sentenced to:
    • (a) reparation order of $5,000.00 to be paid to Cynthia Tokuma, the mother of Emmanuel in a single lump sum payment within two (2) calendar months from today;
    • (b) fine of $5,000.00 to be paid within 28 days, in default, 6 months imprisonment; and
    • (c) 150 hours of community work.
17. It is clear to me Edwin that you are a real risk to other road users. You demonstrate a serious hearing impediment often making you appear confused. Pursuant to section 39A(3)(b), your driver’s license is revoked and you are disqualified from holding a driver’s license for a period of 3 years. You are not to be re-issued with a driver’s license after that period until you have passed a driving test for the class of vehicle that you wish to then drive.

Coronial Finding:

18. This Court also sits as a Coroners Court. I issue the Coronial Finding to certify that Emmanuel Sani Tokuma, a 2 year old male of Vailoa Faleata born on the 23^rd March 2020 died at the Tupua Tamasese Meaole Hospital on the 29^th September 2022 as a result of severe traumatic chest injuries and extensive sub-arachnoid traumatic brain injury and cerebral edema secondary to a motor vehicle accident. I further confirm that the driver of the vehicle involved has been dealt with according to the law.

JUSTICE CLARKE

---

^[1] Seuoti v Police [2006] WSSC 48 (1 September 2006).