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

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

SILA SEUOTI
of Vaega Satupaitea
Appellant

AND

POLICE
Respondent

Counsels: A.V. S. Vaai for Appellant
Ms P. Chang for Respondent

Hearing: 24th August 2006
Judgment: 1st September 2006

JUDGMENT OF VAAI J

The appellant pleaded guilty in the District Court at Tuasivi Savaii to the charge of negligent driving causing death and was sentenced to 18 months imprisonment and disqualified from driving for 3 years. He now appeals to this Court against sentence.

Background

The appellant and his friends were at the Evaeva nightclub at Salelologa on the night of the 18th September 2004. At the closure of the club after midnight the appellant and eight passengers travelled in the pick up truck driven by the appellant; four of the passengers including the deceased were seated in the open tray of the pick up; they were all from the village of Satupaitea. Very soon after the commencement of the journey, the vehicle while negotiating a bend went off the tarsealed road onto loose gravel causing it to spin, struck a rock and finally rested against a power pole. As a result the deceased fell onto the road and suffered head injuries which resulted in his death a few hours after accident; other passengers also suffered injuries.

In passing sentence the judge had particular reference to the overloading, speed and alcohol as the primary contributing factors to the cause of the accident. With four people inside and four on the open tray the pickup was overloaded and there was a higher duty of care on the defendant when he chose to take the 8 passengers that night. Although the drunken driving charge was withdrawn the judge emphasised the dangers of drinking and driving, which has led to numerous traffic accidents and consequently unnecessary deaths and bodily injuries. He noted the appellant had been drinking at the club until its closure after midnight and had only driven a very short distance when the accident happened. Emphasis was placed on the many warnings issued by the court that those who drink alcohol, drive and kill others must expect to go to prison. He concluded that custodial sentence was the appropriate sentence and set three years as a starting point before giving credit for the mitigating factors.

Grounds of Appeal

The Notice of Appeal sets out the two grounds namely:

(a) The sentence imposed was inappropriate, harsh and excessive;

(b) The Honourable judge omitted to take into account substantial factors relating to the offence and to the offender’s character and personal history in handing down the said sentence.

In advancing the first ground of appeal counsel for the appellant stressed the need for the court to be consistent in its approach to sentencing for offences of the same kind and the courts attention has been drawn to four cases in which the District Court imposed sentences of predominantly monetary fines for similar offending in the years 2004, 2005 and 2006 and which suggest that a custodial sentence is justified only if the offender was also guilty of drunken driving. Special reference was made to the decision of Puni J in Police v Unasa Leulu Felise [1998] WSSC 39 (2/10/98) which counsel said the defendant was found guilty of negligent driving causing death (while drunk) and was given a non-custodial sentence and fined $2,000. When compared to that case, the present appellant’s custodial sentence given the favourable mitigating factors in addition to the guilty plea is indeed extreme. The submission in my view lacks substance and must fail. In the first place the schedule of cases produced by the appellant’s counsel does not reflect the realistic approach adopted by the District Court to sentencing for the same offence nor does it show an accurate tariff of sentences imposed in the previous years. The schedule produced by the respondent in my view reflects a more accurate tariff of sentencing in the District Court since the year 2002 when imposing sentences for similar offending. Since 2002 when the average term of 12 months imprisonment was imposed, the tariff has steadily increased to 18 months and 2 years. And in the cases where fines were imposed a sentence of imprisonment was to take effect if that fine was not paid forthwith; which is again an indication of the view the court had taken, so that for a number of years, due to the prevalence of road accidents, the District Court in which these type of offending are dealt with has been ringing warning bells that stern actions and tough measures will be taken to combat this particular prevalence of offending.

Secondly the sentencing approach reflected in the schedule of sentencing tariffs produced by both the appellant and the respondent is a clear indication that the District Court recognises the two broad categories of cases in this area:

(i) Accidents caused by momentary inattention or error of judgment (commonly known as the lower end of the scale of negligence); and

(ii) Accident caused by driving in a manner which shows selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness (higher end of the scale of negligence).

See also R v Boswell (1984) 3 All ER 353

Where the offending falls within the second category, a custodial sentence is often considered appropriate unless there are very special circumstances. The cases referred to by counsel for the appellant in which the District Court imposed monetary fines fall into the first category. I have had the advantage of perusing the files of Police v Kereta Milo (23/8/06) and Police v Leonia Fa’anoi (7/7/06); they involved accidents caused by error of judgment. In the case of Police v Unasa Leulu Felise Vaa (supra), Puni J, contrary to counsel for the appellant’s contention, dismissed the charge of drunken driving, but found the defendant guilty of negligent driving causing death. The facts of that case as I read from the reserved judgment dated 2nd October 1998 are, compared to the present case, not as grave and were obviously not considered to fall squarely into the top end of the scale of negligence.

Thirdly as the facts vary markedly amongst the cases it is very rare for any two cases to have exactly the same facts so that even when applying the same sentencing approach, different sentences for the same offence is to be expected. Counsel for the respondent has properly drawn attention to the principle set down by this court in Taoai v Police (8/3/02) unreported decision of Sapolu CJ ( [2002] WSSC 5).

"It is a cardinal principle of criminal sentencing that the sentence must suit the circumstances of the case at hand. No two cases have the same facts. The facts may vary quite markedly from case to case so one would expect to find differences in sentences imposed for the same kind of offence in different cases even though the same sentencing approach is applied. ... But consistency in sentencing approach does not mean the same thing as consistency in results."

When compared to sentences imposed by the District Court since 2002 for the same offence the custodial sentence of 18 months cannot in my view be seen as manifestly excessive or extreme (to use counsels’ terms).

In advancing the second ground of appeal counsel for the appellant reiterated what was said in mitigation in the lower court with special emphasis on the conduct of the deceased whose presence on the tray of the pick up was unknown to and without the consent of the appellant. It is submitted that the sentencing judge failed to take into account the fact that the appellant had expressly told the deceased and others who later jumped onto the vehicle’s tray (without the appellant’s knowledge or consent) that they had to find alternative transport. It follows therefore that the deceased’s own conduct was a contributing factor which led to his death and more importantly the appellant owed no duty of care to the deceased, who unknown to the appellant was on the tray of the pick up. By omitting to take into account those two vital factors counsel argued that the custodial sentence imposed was manifestly excessive, inappropriate and harsh.

From reading the judge’s sentencing notes it is quite obvious that he declined to accept that the appellant was not aware of the presence of the deceased and others on the tray of the vehicle. The vehicle according to counsels submissions in the District Court was a small double cab pick up so that the presence of the deceased and others to cause the overloading should have been very obvious if indeed the appellant’s judgment was not impaired by alcohol. If the appellant and others got onto the pickup before the appellant got into the driver’s seat the appellant should have seen them; similarly if they had jumped on after he got onto the driver’s seat he should have felt it. In my view the sentencing judge was quite entitled to reject counsels contention that the appellant was unaware of the deceased’s presence on the vehicle.

It is further submitted that it was put to the sentencing judge that although the appellant had been drinking, he was not drunk and was in control of the situation (other external factors contributing to the accident that occurred). It is suggested that as the judge made no mention of the appellant being drunk the sentence should therefore reflect that alcohol was not a contributor factor. Other mitigating factors advanced in the District Court and also included in the Probation report which include remorse, presentation of traditional ifoga, contribution to the funeral expenses, first offender, the guilty plea and others are also alleged to have been virtually ignored and not given due weight as they were not referred to in the judges sentencing remarks.

It has already been pointed out that the learned judge did consider the circumstances surrounding the offending as well as the aggravating features of the accident before he decided that custodial sentence was appropriate and from 3 years as a starting point he imposed 18 months after making deductions for the mitigating factors.

Deterrence was the major factor in determining the ultimate term imposed as the learned judge emphasised the duty of the court to impose custodial sentence for drinking and driving resulting in deaths even though the court has no pleasure in sending young men like the appellant to prison. The appellate court will not interfere with the sentence unless it is of the view the lower court sentence is manifestly excessive and ought to be interfered with. Given the personal circumstances and background of the accused the sentence imposed has undoubtedly caused distress, and hardship but in the public interest the custodial sentence was considered suitable to make him accountable for his actions and to give a general deterrent to the community at large against the obviously prevalent offence of drinking and driving.

It is arguable, that given the maximum custodial sentence which the court can impose is 5 years, the 3 years starting point may seem excessive; but given the significant aggravating features of the offending it cannot in my view be labelled as manifestly excessive. In particular the vehicle had only travelled a very short distance and must have travelled at a speed for it to be considered a write off after the accident; so that speed and alcohol were significant aggravating factors. Finally the appellant cannot be allowed to say that despite his consumption of alcohol he was in full control of the situation because firstly he cannot be the judge of his own cause, and secondly if he was in control the tragic accident would not have occurred.

Conclusions

For the reasons given the appeal is dismissed.

VAAI J