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Police v Salesa [2024] WSSC 131 (5 November 2024)

IN THE SUPREME COURT OF SAMOA
Police v Salesa [2024] WSSC 131 (5 November 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

PERIVE LEULUAIALII IOANE SALESA, male of Salailua.

Accused

Representation: M T. Fesili for Prosecution

V Afoa for the Accused

Sentencing Hearing: 9^th October 2024
Sentence Decision: 5^th November 2024

RESERVED SENTENCE

The Charge:

1. Perive, you appear for sentence on one charge of negligent driving causing death, one of negligent driving causing injury and one of driving without a valid driver’s license.

The Offending:

2. According to the Amended Summary of Facts dated 9^th October 2024 accepted by you through your lawyer, on the 19^th January 2024, you had been “instructed” by your father to drive the family car from Salailua to Salelologa Wharf. You followed your father’s “request”. In the front seat was your father and the back seat was your uncle and his son who were going to the wharf to return to Upolu. While travelling to the wharf, you noticed that your father and your uncle had fallen asleep. At about 1.00pm when your car reached Gataivai, you also ended up falling asleep. You lost control of the car and crashed into a tree on the left side of the road. Your father died at the scene of the accident suffering injuries to his skull and jaw. Your uncle lost consciousness and sustained serious injury described as:
   • (a) 20 cm lateral laceration starting from anterior aspect of the left ear, goes through the ear and to the posterior aspect of the scalp, actively bleeding and skull bone was visible as well;
   • (b) Bruises of both upper eye lids; and
   • (c) Multiple abrasions on the arms and legs.
3. According to your counsel and supported by the witness statements is that you and your family had been busily preparing for a matai title bestowal ceremony. According to your counsel, you “did not rest during the day and at night, they had stayed up all night preparing the food.” The accident occurred on the day of the saofai in the afternoon after the saofai had ended.

The Accused:

4. You are a 24 year old and unemployed. Although the Summary of Facts states that you are a widower, this is inconsistent with your caution statement and your Pre-Sentence Report. You have two children and it is accepted that you are married. You reached year 11 but then left school due to family obligations. You have had no formal employment, having worked the family farm only.

The Victim:

5. The first victim is your father. He was a 58 year old male of Salailua. It is clear from the Victim Impact Report from your mother that he was a deeply loved husband and father. There is no Victim Impact Report on file for the second victim so not much can be said about this victim except what is stated in the Amended Summary of Facts that he is your uncle and what he says in his letter to the Court.

Aggravating and Mitigating Factors:

6. The aggravating features of your offending Perive are that:
   • (a) you were driving whilst deprived of sleep;
   • (b) you were unlicensed; and
   • (c) multiple victims with your uncle also suffering serious injury.
7. In mitigation, I accept the following factors:
   • (a) your deep remorse;
   • (b) your prior good character;
   • (c) the apology and reconciliation that you have undertaken within your family and referred to by the second victim in his letter dated 7th October 2024, which has been accepted; and
   • (d) your guilty pleas entered on the date of hearing.
8. Although your counsel refers to your youth, you are 24 years of age. I do not extend any deduction for youth given your age.

Discussion:

9. Perive, when you drove on the afternoon of the 19^th January this year, you were unlicensed. As was confirmed during submissions, you have never held a driver’s license. You should therefore never have been driving the car on the road that day. This is a serious aggravating feature to your offending. Unlicensed driving is prevalent and for a person who has never passed a driving test before, the risk of you driving on the road is obvious.
10. As both counsel have correctly and more fully laid out, the Samoan courts approach to sentencing for negligent driving causing death applying R v Boswell (1984) can be broken down into two broad categories:
    • (a) accidents caused by momentary inattention or error of judgment; and
    • (b) accidents caused by driving in a manner which shows a selfish disregard for the safety of other road users or of his passengers, or with a degree of recklessness.
11. Generally, cases falling within the first category attract non-custodial sentences. Cases that fall within the second category attract custodial sentences unless there are very special circumstances otherwise. Your counsel submits that your case involving falling asleep at the wheel is one of momentary inattention. The question of whether falling asleep at the wheel constitutes momentary inattention was addressed directly in Police v Vaamainuu [2022] WSSC 31. In that case, I referred to Lord Woolf CJ judgment in R v Cooksley [2003] 3 All ER 40 where his Lordship stated:
    • “...falling asleep is not generally something that happens in a moment. It is normally the end product of a process of feeling tired and people do have the opportunity to stop and avoid an accident when they start to feel that they are falling asleep.”
12. You falling asleep at the wheel was not a case of momentary inattention but the end result of extreme tiredness that came from a lengthy period of lack of sleep due to the family saofai. You will have had the opportunity to refuse to drive, change drivers or take a break but you did not do so but continued on driving the long distance between Salailua and Salelologa. That was a deliberate decision you took that ended up in tragedy.
13. While your counsel submits that your father instructing you to drive is a relevant factor in mitigation, I decline to extend any deduction to your offending on this basis. In Police v Tauafao [2024] WSSC 87 (19 September 2024), I accepted that “in appropriate circumstances, the Court may take into account the conduct of a victim in assessing the overall culpability of an offender.” However, your case is not an appropriate circumstance to extend this factor in mitigation. You were unlicensed and that is both the beginning and the end of the “instruction” to you to drive the car. No unlicensed driver, particularly one that has never held a driving license, should be driving a car on a public road. Further, while you drove the car on instruction from your father, once you felt tiredness as you drove, you will have had the opportunity to take steps to stop driving and avoid the accident. You did not do so.
14. Your counsel seeks a non-custodial sentence. Prosecution seeks a start point of between 2 – 3 years imprisonment.
15. Perive, a non-custodial sentence is not appropriate. Your case is not a category 1 case. As the English Court of Appeal in R v Cooksley [2003] 3 All ER 40 (Crim App) identified, driving when knowingly deprived of sleep and driving without ever having held a driver’s license constitutes highly culpable driving behaviour. A non-custodial sentence would also send the completely wrong signal to the many drivers driving having never held a driver’s license. Those drivers who drive on the roads having never held a driver’s license must be quite clear that should they commit a serious road traffic offence, as you have Perive, the consequences are very serious.
16. In Police v Vaamainuu, I adopted a start point of 4 ½ years imprisonment. That case involved sleep deprivation; alcohol; and four victims, where one was killed and three injured. It was a more serious case than this. Having regard to the authorities referred to me, adopting the negligent driving causing death charge on a totality basis, I view the appropriate sentence start point to be 2 ½ years imprisonment. From that start point, I deduct 5 months for your deep remorse for causing the death of your father and injuring your uncle; and 5 months for the apology and reconciliation. From the balance, 4 months for your late guilty plea leaving an end sentence of 16 months imprisonment.

The penalty:

17. You are accordingly convicted and sentenced as follows less any remand in custody:
    • (a) negligent driving causing death, 16 months’ imprisonment on totality basis;
    • (b) negligent driving causing injury, 6 months’ imprisonment, concurrent;
    • (c) unlicensed driving, convicted and discharged as this has been factored into the negligent driving causing death sentence; and
    • (d) you are disqualified from holding or obtaining a driver’s license for a period of 3 years from today. You are not to be issued a driver’s license until you have passed the prescribed test of competence to drive any class or classes of vehicles you seek.

JUSTICE CLARKE