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Police v Tauafao [2024] WSSC 87 (19 September 2024)

IN THE SUPREME COURT OF SAMOA
Police v Tauafao [2024] WSSC 87 (19 September 2024)


Case name:
Police v Tauafao


Citation:


Decision date:
19 September 2024


Parties:
POLICE (Informant) v GAFA SIONA TAUAFAO, male of Malie (Accused)


Hearing date(s):
25th July; 9th & 28th August; 10th September


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:
You are accordingly convicted and sentenced as follows less remand in custody:
- negligent driving causing death, 3 years 5 months imprisonment totality;
- failure to stop and ascertain injury, 9 months imprisonment, concurrent;
- unregistered vehicle, 2 months imprisonment, concurrent; and
- you are disqualified from holding or obtaining a driver’s licence for a period of 5 years from today. You are not to be re-issued a driver’s licence until you have passed the prescribed test of competence to drive any class or classes of vehicles you seek.
- This Court also sits as a Coroners Court. I issue this Coronial Finding to certify that Zhang Dong Mei, a 47 year old female of Ululoloa and China died en route to the Tupua Meaole Hospital on the morning of Sunday 24th September 2023 as a result of severe haemothorax resulting from severe traumatic chest injuries severe thoracic spinal; fracture dislocation sustained in a hit and run accident at Vailoa on 24th September 2023. I further confirm that the driver of the vehicle involved has been dealt with according to the law.


Representation:
MT Fesili for Prosecution
C Seiuli for the Accused


Catchwords:



Words and phrases:
“guilty of negligent driving causing death” – “fled the scene" – “travelling at high speed” – “unregistered vehicle” – “did not report offending to police” – “attempted to conceal offending”.


Legislation cited:
Samoan Sentencing Act 2016;
New Zealand Sentencing Act 2002.


Cases cited:
Mareikura v R [2012] NZCA 108;
Mundy v Police [2020] NZHC 240;
R v Cluney, 2013 NLCA 46;
R v Dutton [2005] NSWCCA 48;
R v Janceski [2005] NSWCCA 288 (18 August 2005), New South Wales Court of Criminal Appeal;
Police v Faimoa [2022] WSSC 60.


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


A N D:


GAFA SIONA TAUAFAO, male of Malie.


Accused


Counsel: MT Fesili for Prosecution
C Seiuli for Accused


Sentence: 25th July, 9th & 28th August 2024 and 10th September 2024.


Decision: 19th September 2024


RESERVED SENTENCE

The Charge:

  1. Following a defended hearing, I found Gafa guilty of negligent driving causing death. Prior to trial, he pleaded guilty to failing to stop to ascertain whether he has injured a person and driving unregistered vehicle. He appears for sentencing for these charges.

The Offending:

  1. In early morning of Sunday 24th September 2023, Gafa and a female passenger travelled from Malie to Apia on the West-Coast Road in Gafa’s Hyundai Getz. When they reached Vailoa, a car in which Zhang Dong Mei, a Chinese national, had parked on the West Coast Road centre median strip between the west bound and east bound lanes. That car was facing to Faleolo Airport. Zhang Dong Mei exited the left front passenger side door, walked to the back of the car and without looking, crossed the road to the fish stand on the seaward side of the West Coast Road. At the same time, Gafa was driving at high speed from Faleolo towards Apia, overtaking a taxi as he did so. Despite Zhang Dong Mei being able to be seen from “afar”, Gafa did not slow down and continued to drive at high-speed hitting Zhang Dong Mei. He then fled the scene and did not report the accident to police. Zhang Dong Mei later died of her injuries.

The Accused:

  1. Gafa is a 38 year old male of Malie. He is the second eldest of nine children. He completed school to year 13. When he completed school, he began a promising rugby career and was selected to play for Samoa under 18s, 21s and later, Samoa A. He was also in contention to play for the Manu Samoa.
  2. Gafa has held various jobs including with the Samoa Land Corporation, Land Transport Authority and Samoa Airways. He left formal employment and began to work at his parent’s shop and as a taxi driver. He is separated from his wife and is the father of 3 children.

The Victim:

  1. Despite the seriousness of the charges and the death of Zhang Dong Mei, very little is known about her except for what is in the post-mortem report and the doctors report to the Coroner. The deceased was a 47 year old Chinese female of Ululoloa and China.

Aggravating and Mitigating Factors:

  1. The aggravating features of the offending in this matter are:
  2. The mitigating factors that I will take into account is Gafa’s post-trial remorse for his offending which I accept as genuine; payment of the village penalty of $2,000.00 and early guilty pleas to the two lesser charges. I have also read the references from Gafa’s wife and father. These depose to Gafa’s role as provider and carer to his family and children. A modest deduction will also be extended for his personal family circumstances.
  3. Although Gafa’s counsel submits that in his favour is his prior good character, he cannot be said to be a person of “prior good character” as he was convicted in March 2021 of dishonesty offending.

Conduct of the Victim as a Mitigating Factor:

  1. An issue in this case is whether Zhang Dong Mei’s contribution to her own death by failing to keep a proper lookout as she crossed the road can be taken into account as a mitigating factor by the Court. At the request of the Court, further submissions on this point were made. Counsel referred to various Samoan, Australian and Canadian case authorities.
  2. The Samoan Sentencing Act 2016 is modelled on the New Zealand Sentencing Act 2002. Section 9(2) of the New Zealand Sentencing Act 2002 expressly provides in terms of aggravating and mitigating factors that:

“(2) In sentencing or otherwise dealing with an offender the court must take into account the following mitigating factors to the extent that they are applicable in the case:

...

(c) the conduct of the victim;”

  1. The Samoan Sentencing Act 2016 deals with aggravating and mitigating factors in section 7. Section 7 of the Sentencing Act 2016 has some identical provisions to section 9 but does not include as a mitigating factor “the conduct of the victim”. Section 9(4)(a) of the Sentencing Act 2016 does however permit the Court to take “into account any other aggravating or mitigating factor that the court thinks fit.”
  2. In Mareikura v R [2012] NZCA 108, the New Zealand Court of Appeal applied section 9(2)(c) of the Sentencing Act 2002 in a matter of wounding with intent to cause grievous bodily harm. The offender was trying to assist the intoxicated victim. The victim became aggressive and began removing his upper body clothing to confront the offender. The offender was in retreat backing away but then produced a blade striking the victim to the left side of his face. In applying section 9(2)(c), the Court of Appeal stated at [10] that:

“Where, as in this case, the conduct of the victim is directly related to the circumstances of the offending, we consider the appropriate point to have regard to that factor is in fixing the starting point.”

  1. The approach in Mareikura is consistent with Samoan Court’s approach to provocation as a relevant factor in mitigation of the offending.[1]
  2. In Mundy v Police [2020] NZHC 240, Gendall J had to deal with a charge of dangerous driving causing death. The Appellant (offender) sped through an intersection at between 82 and 99 kilometres per hour in a 50 kilometre per hour zone. At that time, a Nissan drove through the same intersection failing to stop at the “Stop” sign and was struck by the offender’s vehicle. A Nissan passenger died. Gendall J stated that:

“[25] It is acknowledged that s 9(2)(c) of the Sentencing Act may mitigate the overall culpability of the offender, in certain circumstances. However, this highly fact specific assessment takes into account the nature, duration and gravity of the contributing conduct...

...

[34] Given all the authorities outlined, I consider Judge Callaghan would have been justified in setting a starting sentence point in the range of three years and six months’ imprisonment, in the absence of contributing conduct by the other driver. This would adequately reflect the aggravating factors present here.”

  1. The New Zealand statutory based approach to the conduct of a victim as a mitigating factor to the offending is consistent with approaches in Canada. In R v Cluney, 2013 NLCA 46, the Supreme Court of New Foundland and Labrador Court of Appeal dealt with the case of an intoxicated driver who had consumed narcotics, was speeding and driving a car with a mechanical fault. The victim was his passenger. The victim grabbed the steering wheel of the car causing the accident. The victim was killed. The Court accepted that the conduct of the victim was a relevant factor in sentencing as the victim’s role in the accident was an important factor in assessing the offender’s degree of responsibility for the victim’s death.[2]
  2. In New South Wales, the situation is somewhat different. Generally, a victim’s conduct or culpability is not a factor taken into account in mitigation of sentence.[3] In R v Dutton [2005] NSWCCA 48, the New South Wales Court of Criminal Appeal stated at [35]:

“It is not appropriate to have regard to the conduct of the victim as mitigating the respondent’s criminal behaviour in putting members of the public, including her passenger, at risk.”

  1. This approach follows the New South Wales Court of Criminal Appeal’s earlier decision in R v Errington [1999] NSWCCA 18.[4]
  2. In R v Janceski [2005] NSWCCA 288 (18 August 2005), the New South Wales Court of Criminal Appeal however recognized that:

“29 The culpability of the victim will usually be relevant to the assessment of the seriousness of the offender’s conduct, and therefore to the offender’s culpability. However, I would not accept that the fact that the deceased driver in the present case was the primary cause of the impact would reduce the respondent’s culpability to “minimal”, or indeed would reduce that culpability to any great extent.”(emphasis added)

  1. It seems from R v Janceski at [29] that there may be certain circumstances where a victim’s culpability is a relevant factor in mitigation. Like New Zealand, that would be a factor relevant to the seriousness of the offender’s conduct and therefore, the offender’s culpability. This is similar to the New Zealand approach where the conduct of a victim is mitigating of the offender’s offending.
  2. In my view, the New Zealand and Canadian authorities demonstrate the types of circumstances in which the conduct of the victim might be mitigating of an offender’s offending. Samoan Courts already apply this approach in cases involving provocation, to which I have earlier referred. In Police v Faimoa [2022] WSSC 60, Roma J also applied the victim asleep on the road as conduct mitigating of the offender’s offending, concerning a charge of negligent driving causing death. While the approach in New South Wales is more restrictive, R v Janceski nevertheless appears to adopt a similar approach as mitigating of the offending.
  3. Section 9(4)(a) of the Sentencing Act 2016 permits the Court to take “into account any other aggravating or mitigating factor that the court thinks fit.” In my respectful view, in appropriate circumstances, the Court may take into account the conduct of a victim in assessing the overall culpability of an offender. This is consistent with the approach of Samoan Courts demonstrated by the earlier cases I have referred to. Where relevant, a victim’s conduct will usually only bear on the assessment of the seriousness of the offender’s conduct. Not every case in which a victim might have contributed to their demise will reduce an offender’s culpability. The assessment of the offender’s culpability focuses on the conduct of the offender, not the victim.[5]
  4. Although the conduct of a victim can be taken into account in mitigation, this case is a far cry from cases such as Police v Faimoa; Mundy v Police; and R v Cluney. Zhang Dong Mei had failed to pay attention as she crossed the road. She should equally have seen your car Gafa from afar approaching her. That however in this case is not relevant in my view to the assessment of your culpability. Your culpability relates to the high speed you were driving despite Zhang Dong Mei on the road able to be seen from afar; your failure to slow down or take any other action to avoid striking her; together with the other aggravating factors to which I have referred. It is on that basis the start point will be set.

Discussion:

  1. Gafa, despite a number of people being on the side of the road at the fish stall, Zhang Dong Mei’s car parked in the centre reserve and she crossing the road, you continued to drive at high speed in gross disregard of Zhang Dong Mei’s safety and that of other people adjacent to the road that morning. You then struck Zhang Dong Mei and fled the scene together with Ms Leung Wai and then took steps to conceal what you had done.
  2. Samoa’s roads are increasingly dangerous because of the many drivers like you Gafa who speed and have no regard to the safety of other road users, whether pedestrians or other vehicles – causing senseless and unnecessary deaths. The West Coast Road is a particularly dangerous stretch of road for pedestrians and vehicles alike because of this. Too many drivers seem to think the rules of the road do not apply to them. Those road rules are there for good reason to avoid exactly this type of accident occurring.
  3. Prosecution seeks a 5 year imprisonment start point. Your counsel seeks a non-custodial sentence. There is absolutely no question that a custodial sentence is warranted. Your offending falls squarely within the second category of cases in which imprisonment terms are imposed showing a selfish disregard for the safety of other road users with a high degree of negligence.[6] The question for me is setting the appropriate start point. In doing so, I bear in mind the need to deter not only you but also other drivers from this type of extraordinarily selfish disregard for the safety of other road users. Drivers must understand that coming with the privilege of driving is the obligation to drive responsibly with proper regard to the safety of all other road users. Where drivers fail to do so and show the degree of selfishness and disregard you demonstrated, they can expect the imposition of a custodial sentence.
  4. Having regard to the authorities referred to me, adopting the negligent driving causing death charge on a totality basis, the appropriate sentence start point is 4 ½ years imprisonment. This is because of your relatively high level of culpability speeding and taking no precautions for the safety of Zhang Dong Mei or others around the road that morning. After hitting Zhang Dong Mei, you then fled the scene rendering no assistance following the harm you had caused and tried to conceal your offending. The Getz should also never have been on the road as it was unregistered, again showing your flagrant disregard for traffic laws. From that start point, I deduct 3 months for remorse. I also deduct 4 months for your personal family circumstances and the village penalty paid. From the balance, I deduct 6 months for your early guilty plea to two of the lesser charges saving time as well as focusing the trial on the question of only of whether you were negligent.

The penalty:

  1. You are accordingly convicted and sentenced as follows less remand in custody:

Coronial Finding:

  1. This Court also sits as a Coroners Court. I issue this Coronial Finding to certify that Zhang Dong Mei, a 47 year old female of Ululoloa and China died en route to the Tupua Meaole Hospital on the morning of Sunday 24th September 2023 as a result of severe haemothorax resulting from severe traumatic chest injuries severe thoracic spinal; fracture dislocation sustained in a hit and run accident at Vailoa on 24th September 2023. I further confirm that the driver of the vehicle involved has been dealt with according to the law.

JUSTICE CLARKE


[1] See for example: Police v Faleiva [2022] WSSC 57; Police Tausagi [2020] WSSC 14; Police v Tamoto [2019] WSSC 47; Police v Ioane [2018] WSSC 69.
[2] R v Cluney, 2013 NLCA 46 at [17].
[3] R v Butler; R v Russell [2021] NSWDC 666.
[4] See paragraph [27] and [28].
[5] See also: Chang v Attorney General [2018] WSCA 3 at [42].
[6] See discussion: Police v Keiji Li [2017] WSSC 170 (8 November 2017) and Police v Vaamainuu [2022] WSSC 31 (1 July 2022).

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