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Police v Alapati [2022] WSSC 32 (27 July 2022)

SUPREME COURT OF SAMOA
Police v Alapati [2022] WSSC 32

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE v SETU ALAPATI male of Auala Savaii and Saleaaumua Aleipata

Defendant

Counsel:

Sentence: 27 July 2022

ORAL SENTENCE OF JUSTICE ROMA

Charges

[1] On the 7^th August 2021 at Leusoalii a traffic accident occurred involving 2 vehicles resulting in the tragic death of 2 females aged in their 30s; and injuries to 3 other victims. The 2 deceased were your wife and your sister in law. The accident further resulted in the 5 charges on which you now appear for sentencing – 2 of negligent driving causing death. The maximum penalty is 10 years’ imprisonment or a fine of $25,000.00 for each charge; and 3 charges of negligent driving causing injury. The maximum penalty is 7 years’ imprisonment or a fine of $20,000.00 for each charge.

[2] You had denied charges of negligent driving causing death. But on the 2^nd May 2022 you vacated your denial and substituted guilty pleas after a charge of motor manslaughter was withdrawn.

Offending

[3] From the summary which you accept, you were driving a Hyundai Tucson registration number R1363 heading towards Lalomanu from Apia along east coast road. Inside the vehicle were 2 passengers. Your wife 35 years of age and now deceased was seated on the passenger seat. The second passenger, your sister in law 33 years of age and also now deceased was seated on the back seat. A second vehicle was in front heading the same direction. Inside was the driver and a passenger seated on the passenger seat. Both became victims of injuries suffered as a result of the accident.

[4] When both vehicles approached a curve at Leusoalii, you over took the vehicle in front along the curve. You had not completely overtaken that vehicle when you saw another coming from the opposite direction. To avoid a head on collision with the oncoming vehicle you swerved to the seaward side infront of the second vehicle. The driver of that second vehicle then took a sudden swerve to the seaward side to avoid being hit by your vehicle. The second vehicle crashed into a vegetable stall on the side of the road and came to a halt against a coconut tree nearby. Yours headed straight towards a pulu tree where a 10-year-old female was standing. She was struck by the front of your vehicle car and thrown mid - air before she landed on the ground approximately 10 meters from the point of impact. Your vehicle came to a halt when it crashed into the slumped over tree trunk.

[5] The first victim was your sister in law Barbara. She suffered a huge laceration on the right side of her head and right ear down to her neck; a fractured skull with brain tissues draining out; and a laceration behind her left thigh. She was pronounced dead on arrival at the hospital. The cause of death was traumatic brain injury. The second victim was your wife Delta. She arrived in hospital in a critical condition. She was clinically found to have less sensation and power below T1 level. She died 3 days later in hospital. The cause of death was severe spinal injuries. The third victim was the driver of the second vehicle. He suffered swollen feet. The fourth victim was the passenger of the second vehicle. He sustained an open wound above the right side of his face; and open wound on the right side of his ear and an abrasion on his right knee. The fifth victim was the 10-year-old bystander. She sustained an abrasion on her right arm; her stomach and right side; and on both legs. You also suffered chest and back pains.

[6] You went to police on the 19^th August when discharged from hospital. In the pre sentence report you admit your offending and suggest that you had successfully overtaken the second vehicle but were blocked by that vehicle when you tried to merge back onto your lane. The simple answer as you know is that it was never safe and you must never overtake another vehicle at a curve. You also told Probation that you quit drinking after the incident which suggests alcohol was involved. There is however no mention of alcohol in the summary.

The Victims

[7] The first was your late sister in law Barbara. She was married to your wife’s’ brother. In the victim impact report by her sister Rosie Katalina Iosefo and her husband, they confirm that reconciliation has taken place. The ifoga was conducted and accepted on the 13^th August 2021. They express forgiveness and seek leniency in sentence.

[8] The second victim was your late wife Delta. She suffered serious injuries that led to her tragic and untimely death. In the victim impact report your father in law speaks of the impact on your family especially your young children. They fear that you might go to prison. They have always treated you as their own which was why they decided to present the ifoga to the family of your late sister in law only. He seeks leniency in sentencing especially on behalf of your young children.

[9] The third victim was driver of the second vehicle. The original victim impact report says that he now suffers a permanent injury to his legs which affects how he walks. His vehicle was heavily damaged; no apology was made and neither has there been any form of restitution. But in an amended victim impact report dated 4^th July, he says you and your family had come to apologise; he has forgiven you and does not want to think about what happened.

[10] The fourth victim was the passenger of the second vehicle. He suffered serious injuries according to the summary. But the material says that he has since travelled overseas on seasonal work.

[11] The fifth victim was a 10 year old female who was on the side of the road. She was admitted for 2 weeks before she was discharged. She was unable to attend school for 2 months after the accident. In the victim impact report her mother says that they paid the medical costs, no apology was rendered and no one visited her daughter in hospital.

Aggravating Factors

[12] The aggravating features of your offending are as follows:

(i) degree of negligence - you overtook a vehicle at a curve when you had no clear view of oncoming traffic and it was unsafe to do so. It required speed and showed your disregard of the safety of other road users, your own passengers and the general public;

(ii) multiple victims were involved - there were 5 victims including 2 deceased;

(iii) impact of the offending - the offending caused serious injuries which led to the death of 2 people; permanent injury to one other victim and damage to his property; serious injury to another victim who has since left the country; and serious injuries to a 10 year old school girl which required hospitalisation for 2 weeks and 2 months’ away from school;

(iv) prevalence of the offending and need for deterrence - there have been far too many cases of reckless driving by drivers without any regard for the safety of road users and the general public resulting in serious injuries and death.

[13] There are no aggravating factors personal to you as offender. You are a first offender.
Mitigating Factors

[14] There are none in relation to your offending. But personal to you as offender, I consider the following:

(i) your guilty pleas to all charges;

(ii) the ifoga presented to the family of the first deceased which was accepted by the family. They have expressed forgiveness and seek the court’s leniency in sentencing;

(iii) the reconciliation within your family in relation to your late wife, the second deceased as confirmed by your father in law. Reconciliation was also sought and reached in respect of the third victim, the driver of the second vehicle;
(iv) your personal circumstances - you are 39 years of age, now a widower with 2 young children aged 15 and 10 years. You are the fifth of 6 siblings. You ended your formal education at Samoa College in Year 13 level. You have since held a number of employment opportunities including 11 years with the Ministry of Police and 3 years with South Pacific Business Development where you were employed when the accident occurred. You hold the ‘Matamea’ title of Auala Savaii, a title once held by your late father. I have read the testimonials provided through probation and your counsel. The testimonials by Rev. Pati Vili of the Congregational Christian Church at Saleaumua; Rev. Ali Alapati your eldest brother who is also the Minister of the Congregational Christian Church at Lelepa; Papalii Fautua who is the pulenuu of Auala Savaii; Matautia Rula Levi who is according to her testimonial the ‘Sa’o o le nuu o Utufaalalafa Saleaumua’; and Fueloa Tavita and Leveti Sauiluma your parents in law. They speak of your humble upbringing; good character and outstanding service to your family, village and church. They emphasize how one incident of bad judgment has had serious consequences on a lot of people, in particular grief to your family and your young children. I also consider with much though the plea by your young children through Probation as to the impact of a custodial sentence. I accept that they too are innocent victims of what happened. They have lost their mother and face a possibility of being separated from their father if a custodial sentence is imposed. You are a first offender. I accept that you are remorseful. You will live the rest of your life with the guilt that your actions resulted in the loss of 2 lives including your wife and mother of your 2 young children. The court can impose no greater punishment than that.

Discussion

[15] The increase in penalties to 10 years’ imprisonment or a $25,000 fine for negligent driving causing death; and 7 years’ imprisonment or a $20,000 fine for negligent driving causing injury; and the subsequent transfer of negligent driving causing death cases for determination in the Supreme Court is a clear indication of Parliament’s intention. It is to stamp out the increasing number of fatalities and injuries caused by the reckless driving of drivers especially those who have a selfish disregard for the safety of other road uses and the public.

[16] The approach to sentencing cases of negligent driving causing death and / or injury has been that as identified in Seuoti v. Police [2006] WSSC 48 (1 September 2006). That the Court recognised two broad categories cases in this area:

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

(ii) Accidents caused by driving in a manner which shows selfish disregard of other road users or of his passengers or with a degree of recklessness (high end of the scale).

[17] The same approach was referred to in Police v. Keiji Li [2017] WSSC 170 (8 November 2017) and Police v. Mu Vaamainuu (1 July 2022) and most recently in Police v. Tito Talamoni, a decision handed down yesterday 26^th July. As noted in those cases, the cases that fell within the first category attracted non-custodial sentences and those within the second category attracted custodial sentences.

[18] Your offending falls within the second category and prosecution seeks a custodial sentence with a start point of 8 years. Your Counsel on the other hand submits that the need for denunciation and deterrence would still be served by a sentence involving a combination of a fine and community service hours. I do not agree.

[19] Your actions have had serious consequences. I accept that your family and that of the first deceased have suffered. You and your young children continue to suffer the most from the unexpected loss of their mother. But the sentence must address your offending and manner charged. In view of the aggravating features of your offending, a custodial sentence is the appropriate penalty.

[20] I have considered the cases referred to earlier. I have also reviewed the helpful table of cases referred to in Police v. Mu Vaamainuu by Clarke J. On the lead charges of negligent driving causing death, I adopt a starting point of 6 years. I make the following deductions. I deduct 4 months for the reconciliation with your late wife’s family and ifoga to the first deceased’s family. I deduct a further 4 months for the references and testimonials in support of your previous good character. I deduct a further 4 months for your personal circumstances including the impact on you and your first offender status. I deduct a further 6 months for the impact on your young children and their plea for leniency in sentencing. A term of 4 and a half years is left after the deductions. I make a final deduction of 12 months for your guilty pleas to the charges. The end sentence is 3 and a half years.

Result

[21] On the 2 charges of negligent driving causing death, you are convicted of each charge and sentenced to 3 and a half years’ imprisonment.

[22] On the 3 charges of negligent driving causing injuries, you are convicted of each charge and sentenced to 18 months’ imprisonment. All 5 sentences to be served concurrently.

Coronial Finding

[23] Finally, as this Court also sits as the Coroners Court I issue the final coronial findings in respect of the 2 deceased. I certify that Barbara Ivi, a 33-year-old female of Tanugamanono, died on arrival at Tupua Tamasese Meaole Hospital on the evening of the 7^th August 2021. The cause of death was traumatic brain injuries sustained in a motor vehicle accident at Leusoaliii earlier that evening.
[24] I further certify that Delta Galugalu Tavita Alapati, a 35-year-old female of Vaitele tai died at Tupua Tamasese Meaole Hospital on the 10^th August 2021. The cause of death was severe spinal injuries sustained in the same motor vehicle accident at Leusoalii on the 7^th August 2021. I further confirm that the driver of the vehicle involved has been dealt with according to the law.

JUSTICE FEPULEA’I A. ROMA