IN THE SUPREME COURT OF SAMOA
Police v Leo [2024] WSSC 112 (5 August 2024)

Case name: 	Police v Leo	
		
Citation: 	[2024] WSSC 112 	
		
Decision date: 	5 August 2024	
		
Parties: 	POLICE (Informant) v MIKAELE LEO, male of Leauvaa (Defendant)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Supreme Court – CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tuatagaloa 	
		
On appeal from:		
		
Order:	The defendant, Mikaele Leo is convicted and sentenced to six (6) months’ imprisonment less any time in custody. 

The defendant is also disqualified from holding or obtaining a driver’s licence for a period of 12 months.	
		
Representation: 	T Fesili for Prosecution
Q Sauaga for the Defendant	
		
Catchwords: 	Negligent driving causing death.	
		
Words and phrases:		
		
Legislation cited:	Road Traffic Ordinance 1960, ss. 39A(3); 39A(3)(b); 	
		
Cases cited:	Police v Alafaio [2024] WSSC 25;
Police v Seumanu [2023] WSSC 2;
Police v Vaafusuaga [2023] WSSC 41;
Police v Vaamainuu [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

Informant

AND:

MIKAELE LEO, male of Leauvaa

Defendant

Counsel:	T Fesili for Prosecution
		Q Sauaga for the Defendant

Sentence:	5 August 2024 

SENTENCE of Justice Tuatagaloa
The charge
1. 	The defendant was found guilty on 13th June 2024 after a defended hearing. He now appears for sentence on one count of negligent driving causing death pursuant to section 39A(3) of the Road Traffic Ordinance 1960 with a maximum penalty of 10 years’ imprisonment, or to a maximum fine of $25,000 and disqualification for minimum one year under s. 39A(3)(b).
The offending
2. 	The facts of this case have been traversed during the hearing of this matter. In summary, the defendant failed to stop or give way at the intersection, but instead drove, straight on to the main road while the victim’s vehicle was approaching travelling on the main road causing the front left side of the victim’s vehicle to collide with the right side of the dyna truck base driven by the defendant. The Court found that the victim suffered a heart attack as a result of the accident and was pronounced dead on arrival at the Moto’otua Hospital.
3. 	Although, the attending physician did not observe any external injuries on the body of the deceased he noted on his Report to the Coroner the cause of death as “likely fatal cardiac arrhythmia due to acute coronary syndrome from the motor vehicle accident”. The attending physician was satisfied as to the cause of death and did not order for a post mortem.
The defendant
4. 	The defendant was 53 years’ old from the village of Leauvaa, married with eight children.
5. 	The Pre-Sentence Report (PSR) by the probation gives the defendant personal background - education, employment and family background. The PSR says that the defendant at the time of the accident was working as a driver for HJ Keil Company at Taufusi. 
6. 	A verbal testimony in support of Mikaele was provided by his niece Sina in the PSR whereby she relayed that, the defendant is hard working, kind and had cared for her and her siblings when their mother died as if he was their father.
7. 	There are written testimonials from Mikaele’s faifeau, Deacon Efaraima Auala, pulenuu Tuilau Sanele Paola and his employer, Letoa Wienzell Keil, all of whom highlight Mikaele’s positive contribution to the community. Deacon Auala speaks of Mikaele as a trustworthy and loyal member of the congregation; Pulenuu Tuilau portrays Mikaele as someone who routinely contributes to village affairs; his employer Letoa spoke of Mikaele as a committed and respectful employee who has worked for the company for almost 30 years. 
8. 	The defendant in a sworn affidavit confirmed he made an apology to the deceased’s son and his employer, Letoa Wenzell was present and $10,000 was offered by the company to the deceased’s son to help out with his mother’s funeral (lauava) the reason being that it was the company’s dyna truck that was driven by the defendant at the time of the accident. The Probation Services confirmed acceptance of the apology by the deceased’s son and money given in the PSR.
9. 	The defendant has no previous convictions and is a first offender.
The deceased
10. 	The deceased was over 60 years old and hails from the villages of Vaivase and Taelefaga, Fagaloa. The deceased was driving on the day of the accident with her daughter as passenger. The deceased must have been in shock when the defendant’s vehicle drove straight on the main road directly in her vehicle’s path causing her to hit the defendant’s vehicle, and then she suffered a heart attack resulting in her untimely death. 
The aggravating and mitigating factors
11. 	There are no aggravating factors personal to the defendant. This was just pure negligence and recklessness on the defendant particularly having regard to the following conditions on the morning it happened resulting in the loss of life:
•	The main road was busy;
•	The road was wet and slippery for it had rained earlier and it was still drizzly at the time (mauluulu) of the accident;
•	The dyna truck driven by the defendant had not fully merged into the traffic on the main road for the front left side of the deceased’s vehicle collided with the right side of the Dyna truck base (or bed) towards the end. The point of impact means that the Dyna had not fully immersed itself on to the main road.
12. 	I find the defendant to be contradicting himself. In the PSR he is truly remorseful and fully accepts the findings of the Court but in his sworn affidavit at paragraph [7] he seems to say that he was on the right lane and had the right of way but just that his vehicle was not fully immersed on to the lane. This is not correct. The defendant did not have the right of way for there were or was the victim’s vehicle on the road which he would have seen if he had stopped first before turning left on to the main road. Either the defendant truly refused to accept the Court’s decision or he does not understand the road traffic rules hence the accident.
13. 	The mitigating features personal to the defendant and to the offending are: 
(i) 	The apology by the defendant accompanied by his employers to the deceased family shortly after the accident;
(ii) 	There was no speed or alcohol involved;
(iii) 	The defendant prior good character is reflected in the character references from his faifeau, pulenuu and employer that accompanied the Pre-Sentence Report (PSR); and
(iv) 	I accept that the defendant is truly remorseful for the loss of life. 
14. 	The deceased daughter confirmed that the defendant may have apologised to her brother and (with his employer) gave $10,000 towards her mother’s funeral but she said that the proper thing to do was an ifoga by the defendant and/or his family. I agree that this would be the best thing to do by the defendant given that a life has been lost due to his negligence.
Discussion
15. 	The offence of negligent driving causing death prior to amendments to the Road Traffic Ordinance 1961 was in the domain of the District Court with a maximum penalty of seven years imprisonment. Since the amendments in 2020, the maximum penalty has increased to 10 years’ imprisonment and maximum 7 years for negligent driving causing injury. The offence of negligent driving causing death now falls within the jurisdiction of the Supreme Courts.
16. 	The approach to sentencing in cases of this nature generally fall into two categories established in Seuoti v Police [2006] WSSC 48 (1 September 2006). This approach has been discussed in various cases and despite the change in maximum imprisonment term since 2020, when the Seuoti case was decided, the two categories are still relevant and continue to provide helpful guidance when it comes to sentencing in negligent driving causing death.  Unless there are persuasive reasons to deviate, the two categories remain relevant and applicable:
(i) 	First category are accidents caused by momentary inattention. These lie at the lower end of the negligence scale and attracts non-custodial sentences.
(ii) 	The second and more serious category are accidents caused by driving in a manner that shows a selfish disregard of other road users or a high degree of recklessness. This is at the opposite end of the negligence scale and would attract custodial sentences unless there are very special circumstances to deviate.
17. 	Counsel for the defendant referred to two cases of Police v Vaamainuu and Police v Vaafusuaga where the approach of the Courts has been discussed and submits that the defendant actions were the result of momentary inattention and error of judgment therefore falls within the first of the two categories and does not require a penalty of imprisonment. There was also no speeding and alcohol involved. 
18. 	Respectfully to counsel I cannot agree. In my view, where there is speed and alcohol involved, it would place the case in the more serious offence of motor manslaughter.
19. 	The driver of a motor vehicle has a duty of care to other road users, pedestrians and passengers.  A prudent driver in the following conditions where the main road was busy and the road was wet and slippery and was still drizzly at the time (mauluulu) and driving a Dyna truck, should have exercised much care by stopping first at the intersection to assess if it’s safe to turn left on to the main road. The evidence accepted by the Court is the defendant did not stop to give way instead it drove straight on to the main road turning left. This is pure negligence.
20. 	I also do not accept the Prosecution’s recommendation for a non-custodial sentence of two (2) years supervision. The Prosecution in their submissions seem to soften or downplay the negligence of the defendant.
21. 	The defendant’s conduct in this case cannot be described as momentary inattention or error of judgment and in my view falls in the second category, driving recklessly in a manner showing selfish disregard for the safety of others. The penalty must not only reflect the loss of a person’s life but also send a message to offenders and to every driver in the country that this kind of driving behaviour is not acceptable and can have severe consequences. Considering all the circumstances an imprisonment term must be imposed. 
22. 	In the circumstances of this offending, I find appropriate the starting point of 2 years imprisonment. From that the defendant is entitled to certain deductions which his counsel has quite properly referred to. The first is for your clean record, background of service and tautua not only to your Ekalesia and family but also to the community at large and to the country. The many character references filed on your behalf with the Probation office are a testimony to this. For that, I deduct 10 months to reflect those factors. 
23. 	The defendant will also receive a further deduction to reflect the apology and reconciliation (faaleleiga) that has been carried out in this matter, as well as the monetary contribution to the deceased funeral (lauava). These have all been confirmed by the Probation Service in the pre-sentence report.  A further 8 months is deducted. 
24. 	The end sentence is six (6) months.
Conclusion
25. 	The defendant, Mikaele Leo is convicted and sentenced to six (6) months’ imprisonment less any time in custody. 
26. 	The defendant is also disqualified from holding or obtaining a driver’s licence for a period of 12 months.
JUSTICE TUATAGALOA