SUPREME COURT OF SAMOA
Police v Siaso [2014] WSSC 56

Case name: Police v Siaso
Citation: [2014] WSSC   56
Decision date: 14 October 2014
Parties: POLICE (Prosecution) and ATONIO SIASO male of Siufaga, Falelatai, Accused
Hearing date(s): 19 and 24 September 2014
File number(s): S2195/14
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
Leone Su’a-Mailo for prosecution
Accused in person 
Catchwords: 
motor-manslaughter, 
Words and phrases:
negligent driving causing death, unlicensed driver, maximum penalty, aggravating and mitigating features, sentence
Legislation cited:
Crimes Act 2013ss.83, 92(1) and (2) (b), and 102, s.108
Road Traffic Ordinance 1960, s.39A ss.27(1) and 72A s.7(1) and (2)
Cases cited:
Mapesone v Police [2003] WSSC 4
Police v Ini (2013)
Seuoti v Police [2006] WSSC 48
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2195/14, S2197/14

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

ATONIO SIASO male of Siufaga Falelatai
Accused

Counsel
L Su’a-Mailo for prosecution
Accused in person 

Sentence:	14 October 2014  

S E N T E N C E
The charges
1.	At first, the accused appeared for sentence on one charge of manslaughter which is sometimes referred to as ‘motor manslaughter’, contrary to ss.83, 92(1) and (2) (b), and 102 of the Crimes Act 2013, which carries a maximum penalty of life imprisonment pursuant to s.108; one charge of negligent driving causing death, contrary to s.39A of the Road Traffic Ordinance 1960, which carries a maximum penalty of 5 years imprisonment or a fine not exceeding $2,000; one charge of  being an unlicensed driver, contrary to ss.27(1) and 72A of the Road Traffic Ordinance 1960, which carries a maximum penalty of 2 penalty units because the accused is a first offender; and one charge of driving an unlicensed vehicle, contrary to s.7(1) and (2) of the Road Traffic Ordinance 1960, which carries a maximum penalty of a fine not exceeding 2 penalty units.  The accused pleaded guilty to all charges at the earliest opportunity.
2.	After receiving the pre-sentence report, the prosecution’s sentencing memorandum, the prosecution’s amended summary of facts, and after hearing the accused’s plea in mitigation, I adjourned this matter to prepare a written sentencing decision.  It then occurred to me that the charge of manslaughter might not be appropriate as the amended summary of facts does not show that the accused was driving with gross negligence or recklessness at the time of the fatal accident:  see Police v Ini (2013) (unreported judgment of Sapolu CJ delivered on 9 July 2012).  This test is now expressed in s.83(2) of the Crimes Act 2013 as a major departure in the circumstance of a particular case from the standard of care expected of a reasonable person to whom a legal duty applies.   
3.	Thus when this matter was recalled for delivering my decision, I pointed out to counsel for the prosecution that the facts in the amended summary of facts may not be capable of sustaining the charge of manslaughter notwithstanding that the unrepresented accused has already pleaded guilty to the manslaughter charge.  After taking time to reconsider the matter, counsel for the prosecution quite responsibly withdrew the charge of manslaughter.  The accused is therefore now appearing for sentence on the charges of negligent driving causing death, being an unlicensed driver, and driving an unlicensed vehicle.   
The offending 
4.	According to the prosecution’s amended summary of facts, on Saturday evening 5 July 2014 between 6-7pm, the deceased, his niece, and his 15 year old son were taking a stroll along the West Coast road at Nofoalii.  Around the same time, the accused and his younger brother had travelled from Siufaga, Falelatai, to the Toleafoa Petrol Station at Fasitoo-uta to fill up the accused’s Toyota Hilux pick up vehicle and were travelling back to Falelatai along the West Coast with the accused driving his vehicle.  At that time, the accused was without a valid driver’s licence and the warrant of fitness of his vehicle had expired and had not been renewed.
5.	While the accused was driving his vehicle, he and his brother were drinking beer inside the vehicle and were travelling at high speed.  When they reached Nofoalii, there was another car in front of them.  The accused then further accelerated his vehicle and steered to the right lane on the road in order to overtake the car in front of them.  At that time, the deceased, his niece, and his son were crossing the road at Nofoalii from left to right.  It was already dark and the headlights of the accused’s vehicle were turned on.
6.	On the facts presented in the amended summary of facts, the left side of the road would be the inland side and the right side of the road would be the seaward side.  So the accused, his niece, and his son were crossing from the inland side to the seaward side of the road.
7.	The deceased’s niece and son managed to reach the right side of the road before the car in front of the accused’s vehicle reached them.  The deceased took a bit longer to reach the right side of the road.
8.	At that time, the accused had further accelerated his vehicle with its headlights on steering on to the right lane on the road to overtake the car at the front.  The accused then noticed from the headlights of his vehicle the deceased who was still crossing on the right lane of the road.  He tried to take action to avoid hitting the deceased but his vehicle almost collided with the car he was trying to overtake.  So the accused’s vehicle hit the victim who was still on the right lane of the road.  Upon impact, the deceased’s body flew in the air before it landed on the hedges on the seaward side of the road.  
9.	Out of fear for his personal safety and that of his younger brother who was with him as well as the safety of his vehicle, the accused did not stop but continued on to the Faleolo police post and turned himself in to the police.  Even though the accused told the Court that he had consumed only part of a large bottle of beer when the accident occurred, the report by the Faleolo police show that the accused was evidently under the influence of alcohol when he turned himself in to the police.
10.	After the deceased was hit by the accused’s vehicle, he was taken to the Leulumoega District Hospital where he was resuscitated before being transferred to the Tupua Tamasese Meaole Hospital (TTM Hospital) in Apia around 10pm.  At the TTM Hospital, the deceased was pronounced dead by the examining doctor around 11pm.
11.	Upon medical examination, the deceased was found to have suffered external multiple bruises and abrasions, a fractured pelvis, a fractured left bone forming the lower part of the hip bone (left ischium), significant internal bleeding around these fractured bones, multiple lacerations to the spleen, and injuries to the brain.
12.	Evidently, the accused was driving at high speed at the time the accident occurred.  He was also consuming alcohol while driving which might have affected his  judgment and driving ability.  As the police report shows, the accused was observed to be under the influence of alcohol when he turned himself in to the police at Faleolo.  The accused evidently failed in his duty of care to other road users.  On the other hand, the West Coast road is usually a busy road.  There are always vehicles using the road though not at regular intervals.  The deceased should have made sure that the road was safe before he crossed it.  It was also already dark at the time.  To an extent, the deceased in crossing the West Coast road in the given circumstances contributed to what happened.
The deceased
13.	At the time of this tragic accident, the deceased was 42 years old.  He was married with two teenage children.  He was living with his family in Auckland, New Zealand, but was visiting his family at Nofoalii.
The accused
14.	The accused is a 38 year old male of Siufaga, Falelatai.  He had attended school up to Year 9.  He is married with two children.  He has a plantation from which he maintains his family.
15.	The accused is also a first offender.  The oral testimonial from his mother and the written testimonials from the bishop of his church and the pulenuu of his village all show that the accused had been a person of good character prior to the commission of these offences.
16.	The family of the accused has also performed a ifoga to the family of the deceased and it was accepted.  The ifoga was accompanied by a presentation of three large fine mats and $500 cash.  
17.	The accused has also pleaded guilty to the charges against him at the earliest opportunity.
The aggravating and mitigating features
18.	In relation to the offending, the first aggravating factor is that the accused was driving at high speed. He further accelerated his vehicle when he tried to overtake the car in front of him.  This was when it was already dark and his vision of what was in front of his vehicle was partly blocked by the car in front of him.  He should have exercised more care to ensure that the road was safe.  The fact that the deceased flew in the air when he was hit by the accused’s vehicle and landed on the hedges on the seaward side of the road speaks of the speed in which the accused was driving his vehicle.  Secondly, the accused was drinking beer with his younger brother while he was driving the vehicle. Something that he should not have done. This might have partially distracted his attention from what was in front of him as he was trying to overtake the other car.  It might also have reduced his good judgment and driving ability.  On the other hand, the first mitigating feature in relation to the offending is that the accused did try to take avoiding action when he saw the deceased on the right lane of the road.  However, his vehicle almost collided with the car he was trying to overtake.  Thirdly, the accused turned himself in to the police immediately following the accident.  Fourthly, the deceased’s conduct in a way must have contributed to what happened.  The West Coast road, as already mentioned, is usually a busy road with traffic.  One must take care before crossing this road.  It was also dark and the deceased must have seen the car that was in front of the accused’s vehicle particularly as the headlights of the cars using the road must have been turned on at that time.  It would have been safe to wait until the traffic has gone past and the road was safe.
19.	In relation to the accused as offender, there is no aggravating feature.  However, there are mitigating features.  He is a first offender and had been a person of good character prior to the commission of these offences.  His family has also performed a ifoga to the family of the deceased which was accepted.  There is also remorse on the part of the accused.  He has also pleaded guilty at the earliest opportunity.

Previous cases on negligent driving causing death
20.	I have only been able to find two previous sentencing decisions of this Court on the offence of negligent driving causing death.  Both were on appeals from the District Court.  The first is Mapesone v Police [2003] WSSC 4.  In that case, the appellant was driving a bus overloaded with passengers at excessive speed.  The bus veered on to the wrong side of the road into the path of an on-coming taxi driven by the deceased.  The driver of the taxi was killed and a passenger was seriously injured.  The appellant was convicted and sentenced to 12 months imprisonment on the charge of negligent driving causing death and was convicted and sentenced to 6 months imprisonment on the charge of negligent driving causing injuries.  Both sentences were made concurrent.  The appellant appealed to this Court on the ground that the end sentence was manifestly excessive.  Doherty J dismissed the appeal.
21.	The second case is Seuoti v Police [2006] WSSC 48.  In that case, the appellant and his friends had been drinking in a night club until it was closed at midnight.  All of them then got onto the appellant’s double-cab pick-up vehicle driven by the appellant to return to their village.  Four of the appellant’s friends, including the deceased, sat in the open tray of the pick-up.  On their way, the vehicle while negotiating a bend went off the road onto loose gravel causing it to spin, struck a rock and finally rested against a power pole.  The deceased who fell on to the road suffered head injuries from which he died.  Overloading, speeding, and alcohol were found to be the cause of the accident.  The appellant was given an end sentence of 18 months imprisonment.  The appellant appealed to this Court on the ground that the sentence was manifestly excessive.  Vaai J dismissed the appeal.
22.	In both Mapesone v Police [2003] WSSC 4 and Seuoti v Police [2006] WSSC 48, this Court emphasised the need for deterrence when passing sentence in cases of negligent driving causing death because of the prevalence of this kind of offending.  
23.	Having regard to the maximum penalty of 5 years imprisonment for this offence, the need for deterrence in cases of negligent driving causing death, and the aggravating features relating to this particular offending, I will take 2½ years as the starting point for sentencing.  I will deduct 6 months for the mitigating features relating to the offending.  That leaves 2 years.  I will deduct a further 6 months for the mitigating features relating to the accused as offender but not including the guilty plea.  That leaves 18 months.  I will then deduct 1/3 for the guilty plea and that leaves 12 months.
The result
24.	The accused is sentenced to 12 months imprisonment on the charge of negligent driving causing death.  Any time the accused has already spent in custody is to be further deducted from that sentence.
25.	The accused is also disqualified from holding a driver’s licence for 2 years.
26.	On the charge of being an unlicensed driver, the accused is convicted and discharged.
27.	On the charge of driving an unlicensed vehicle, the accused is also convicted and discharged.
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  CHIEF JUSTICE