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Police v Tautaiolefue [2024] WSSC 104 (12 April 2024)

IN THE SUPREME COURT OF SAMOA
Police v Tautaiolefue [2024] WSSC 104 (12 April 2024)

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

PELETISO TAUTAIOLEFUE, male of Saleaula, Savaii

Defendant

Counsel: I Atoa for Prosecution
T Patea for the Defendant

Sentence: 12 April 2024

SENTENCE OF JUSTICE TUATAGALOA

The charges

1. The defendant appears for sentence on the following charge 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 summary of facts confirmed by the defendant says:
   • The defendant on 20 May 2023 was driving a Toyota Hiace Van (private) with the registered plate number 15340 heading towards the direction of Apia from Faleolo airport.
   • Upon reaching Levi, Saleimoa the deceased was said to have crossed the road from the opposite side of the road to which the defendant was travelling on.
   • The deceased was said to have been hit by the defendant’s vehicle in the middle of the lane on which the defendant was driving on.
   • The defendant upon hitting the deceased stopped and a man by the name of Petelo that was at that part of the road approached to offer assistance but heard someone calling out to stone the defendant’s car signaled the defendant to reverse his car and leave. Instead, the defendant continued to drive forward and by doing so had ran over the deceased who fell and was lying under the vehicle.
   • The deceased was taken to the hospital by a taxi driver who passed by and stopped to offer assistance.
   • The deceased was in a critical condition when he arrived at the hospital and died five days later from injuries sustained.

The defendant

3. The defendant is 65 years’ old from the village of Saleaula, Savaii; married with eight (8) children.
4. The pre-sentence report (PSR) by the probation gives the defendant’s personal background - education, employment and family background. The defendant is a senior deacon of his EFKS church and the chief orator (tu’ua) of his village. According to the written testimonials from his older sister, church minister and village mayor, the defendant is a reliable, trustworthy and respectful member of their community. The defendant accordingly has been driving since he was 20 years old.
5. The defendant and his family did a ’ifoga’ to the deceased’s family where they presented the fine mat used for the ifoga and $10,000 towards the funeral. The ifoga was confirmed and accepted by the deceased’s brother in the victim impact report (VIR).
6. The defendant has no previous convictions and is a first offender.

The deceased

7. The only information about the deceased is that he is 47 years old from the village of Levi, Saleimoa. The deceased sustained the following injuries which lead to his death:
   • Multiple fractured chest ribs; and
   • Lung contusions.
8. The cause of death is respiratory failure due to chest injury severely damaging his lungs.
9. The deceased’s brother in VIR expressed sadness for the sudden demise of the deceased but in accordance with out customs and traditions, the family have accepted the ifoga by the defendant and his family.

The aggravating and mitigating factors

10. The Prosecutions submit that here are no aggravating factors personal to the defendant. The only aggravating factors are:
    • Inattention on the road – The defendant should have paid more attention while driving, because if he had he would have been able to see the defendant crossing;
    • Serious injuries which lead to loss of life – There was inattentive lapse of judgment on the defendant when he continued to drive forward instead of reversing making the vehicle go over or run over the deceased who was said to have fallen underneath the front part of the vehicle when hit.
11. The Prosecutions accept that the accident was caused by momentary inattentive or error of judgment therefore falls within the second category identified in R v Boswell (1984) 3 All ER 353 accepted and applied by the Samoan courts.^[1] The Prosecution recommends for a non-custodial sentence.
12. Defence Counsel in his submissions provide for the following mitigating factors:
    • There was no speeding or that the defendant was under the influence of alcohol implicated;
    • The road conditions were fine, was getting dark around 7pm but the street lights were on;
    • The defendant did not in all honesty see the deceased crossing the road;
    • That he feared for his safety and his passenger when he saw people from the village coming towards his vehicle thus, the reason he drove off by continuing to go forward whilst the deceased was under the vehicle.
    • The deceased was intoxicated when received by Dr Aleki Fuimaono at Moto’otua Hospital and noted on his Report dated 29^th May 2023;
    • The defendant has been driving since he was 20 years old and this is the first time he had a car accident;
    • The defendant is a first offender at 65 years old;
    • The defendant pleaded guilty;
    • The defendant is truly remorseful; and
    • A, ifoga was carried out whereby ie tele and $10,000 was given to the deceased funeral.
13. Defence Counsel seeks for discharge without conviction. I turn now to consider the application by counsel.

Jurisdiction to Discharge without Conviction

14. I reiterated what is said by Justice Vaai in AG v Khamtahn Stanley & Lomalasi Laufili^[2] as to the law at paragraphs [18] - [20]:
    • “[18] Section 69 of the Sentencing Act 2016 confers jurisdiction on a Court to discharge an offender without conviction. Section 70 provides guidance. The Court must be satisfied that the direct and indirect consequences of a conviction to the defendant would be out of all proportion to the gravity of the offence before discharging a defendant without conviction.
    • “[19] The Court of Appeal in Attorney General v Ropati ^[3]discussed the correct approach to section 69 and 70. A four step approach is provided:
      • (a) Assess the gravity of the offence, a task which includes consideration of all the aggravating and mitigating factors relating to the offender and the offending;
      • (b) Identify the direct and indirect consequences of conviction for the offender;
      • (c) Consider whether those consequences are out of all proportion to the gravity of the offence;
      • (d) If the Court determined they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge.
    • “[20] The Court’s discretion to discharge without conviction under section 69 exists only if the Court is satisfied that the section 70 threshold has been met. Section 70 provides a gateway through which any discharge without conviction must pass.
15. The threshold test in section 70 is not a matter of discretion, but rather a matter of fact requiring judicial assessment.

Discussion

16. Counsel for the defendant seeks for a discharge without conviction submitting that a conviction would have a disproportionate impact on the defendant for he holds the oratory title for the family and village; although that he seldom travels overseas, nevertheless a conviction will jeopardize visa application should he wish to travel overseas for family faalavelave; that a conviction would mean that he will lose his ‘tofi tiakono’ within his EFKS but also to attending the Komiti Aoao at the Fonotele. Counsel for the young offender implores the court to place heavy consideration on the defendant’s role and duties within the church.
17. The Prosecution did not make submissions against the application for a discharge without conviction. Their recommendation for a conviction and non-custodial sentence is taken by the Court that they oppose a discharge without conviction albeit no reasons given.
18. I accept the submissions of Counsel that the defendant said that the road conditions were fine, not many cars on the road that it was getting dark around 7pm but the street lights were on. If this was so, then the defendant would have been able to see the deceased crossing the road. I, therefore accept the Prosecutions submissions that there was inattentiveness on the part of the defendant while driving on this day. There was a man named Petelo who was present and said in his statement that he saw the deceased crossing the road and was hit in the middle of the lane the defendant was travelling on.
19. I accept the following mitigating factors. That he feared for his safety and his passenger when he saw people from the village coming towards his vehicle thus, the reason he drove off by continuing to go forward whilst the deceased was under the vehicle.
    • The deceased was intoxicated when received by Dr Aleki Fuimaono at Moto’otua Hospital and noted on his Report dated 29^th May 2023;
    • The defendant has been driving since he was 20 years old and this is the first time he had a car accident;
    • The defendant is a first offender at 65 years old;
    • The defendant pleaded guilty;
    • The defendant is truly remorseful; and
    • A, ifoga was carried out whereby ie tele and $10,000 was given to the deceased funeral.
20. I now consider the four steps in Attorney General v Ropati:
    • (a) The gravity of the offending is at the lower end of the scale. I accept that the injuries sustained may have been further aggravated by the defendant driving over the deceased in haste to get away fearing for his safety when he saw people walking towards his vehicle and someone calling out to stone his vehicle;
    • (b) The only direct consequence of a conviction upon the defendant is in regards to his position within the EFKS. That he is a deacon within his EFKS that allows him to represent his EFKS in the Komiti Aoao at the Fonotele I Malua. A conviction will mean that he stands down from this position and representation to the Komiti Aoao as confirmed by his faifeau. That is, the rules of the EFKS church. In this context, it is one’s moral compass that is more important and a discharge without conviction will not remove the fact that the defendant has caused the death of the deceased. The possibility of a conviction hindering overseas travel by the defendant if needs to in terms of issuance of visa is a matter for the authorities that deal with such issues. There is nothing submitted to confirm to the Court that a conviction would result in denial of visa.
    • (c) Although, the gravity of the offending is at the lower end of the scale, a life has been lost. I consider that the consequences of a conviction will not be out of proportion. The risks must be real and not fanciful.
21. The application for a discharge without conviction is denied.
22. In view of the circumstances of the offending, the defendant, Peletiso Tautaiolefue is convicted and discharged.

JUSTICE TUATAGALOA

^[1] Seuoti v Police [2006] WSSC 48 – precedent case to first apply the two categories in R v Boswell.
^[2] Attorney General v Stanley & Anor [2022] WSSC 34.
^[3] Attorney General v Ropati (2019) WSCA 2.