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Police v Pei [2024] WSSC 135 (15 November 2024)

IN THE SUPREME COURT OF SAMOA
Police v Pei [2024] WSSC 135 (15 November 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

MIRACLE PEI a.k.a LEASOSIO PEI, female of Tufutafoe.

Defendant

Counsel: T. Fesili for prosecution
Ms. Aiono on behalf of V. Afoa for the defendant

Sentence: 15 November 2024

SENTENCE

1. The defendant pleaded guilty to two charges firstly that at Tufutafoe on 02 December 2023 she did drive a Toyota Hilux double cab pick-up plate number 0066 negligently and thereby caused the death of Luka Esau a female of Tufutafoe. The second charge is that same date same place she drove that vehicle without a valid drivers license.
2. She initially pleaded guilty to the unlicensed driving charge but not guilty to the causing death charge. On trial day she changed her plea on the causing death charge to guilty.
3. As this court also sits as a Coroners Court I certify that the deceased Luka Esau a female 37 years of age of Tufutafoe in Savaii died on 02 December 2023 at Tufutafoe. The cause of death was fatal injuries sustained in a motor vehicle accident. I further certify that no alcohol was involved in this offending and that the driver of the vehicle in question is today being dealt with according to law.
4. The agreed summary of facts states the defendant is a 22 year old female of Tufutafoe married with children. On the 02^nd December 2023 at about 10:00 am she was driving the pick-up in question which is a double-cab manual drive Toyota Hilux pick-up. She was driving along an access road at Tufutafoe. In the vehicle were three passengers while the deceased was sitting by herself at the back in the tray of the pick-up. Defendant was involved in errands for the Tufutafoe Womens Committee.
5. Following the defendants pick-up was the bus transporting other members of the Womens Committee. As the defendants vehicle and the bus ascended a hill the defendants vehicle stalled. The defendant tried to restart the vehicle unsuccessfully and also tried to apply the brakes but could not stop the vehicle rolling backward down the hill.
6. The bus driver in her rear quickly reversed his bus to avoid a collision while the defendants vehicle rolled uncontrollably down the hill and into the surrounding bush. In the process the tail gate of the vehicle opened and the deceased fell off and became trapped under the vehicle. The vehicle eventually stopped, by-standers came to assist but the deceased was fatally injured. She was taken to Sataua District Hospital and despite efforts she succumbed to her injuries around 11:20 am that morning.
7. Medical report for the Coroner listed the cause of death as severe traumatic brain injury and right lung obtrusion as well as other injuries resulting from the accident. Subsequent police inspection of the vehicle revealed it was in good order and condition and that it possessed a valid warrant of fitness. It however transpires the defendant was unlicensed and that the vehicle belongs to her family.
8. When she was interviewed by the Police she was asked “e masani ona e tauaveina le taavlae?” O lana tali “Sa’o lelei.” She was asked “sa lelei a la le foeuli ma taofi o le taavale I le aso lea?” She said “Yes” and she was asked “e iai sou laisene avetaavale?” she said “leai”. And she was asked “o lona uiga e te lei to’a i le aso na tula’i mai ai le faalavelave?” and her answer was “ia, sa’o lelei”. As a result of the accident she faces the charges that she currently faces. And the summary of facts confirms that she has a clean police record.
9. As counsel in this matter has properly identified, in this jurisdiction sentencing for the offence of negligent driving causing death is based on determining first the cause of the accident. Was it caused by “momentary inattention or error of judgment” or was it some other cause? Or was it caused by “driving in a manner showing a selfish disregard for the safety of others and with recklessness?” If it was momentary inattention or error of judgment usually the penalty is non-custodial. But if it is a case of driving in a selfish or a reckless manner or under the influence of alcohol then usually imprisonment penalties will be imposed by the court.
10. Parliament has become very concerned about these sort of driving accidents and that was why in 2020 they increased the penalty for many driving offences including negligent driving causing death; they increased it substantially. There is a prolific number of cars on our few roads and cases of driving accidents particularly accidents resulting in death are growing at an alarming and concerning rate. As this court noted in paragraph 11 of its recent judgment in Police v Aiono [2024] WSSC 64:
    • “Parliament has increased the maximum penalty for negligent driving causing death from 5 years to 10 years and from $5,000 to $25,000, echoing the courts concern about this kind of offending. With the staggering and seemingly unchecked increase in the number of vehicles being imported into a small island nation with such limited space the probability and possibility of accidents is growing exponentially. Prosecutions for motor vehicle accidents particularly those causing death are growing in number and intensity as traffic numbers increase. It may well be time for Parliament to seriously consider limiting the unrestricted flow of vehicles into the country. Consideration should also be given to the adverse impact and environmental damage that results from disused and rusting wrecks, car parts and written off vehicles lying about. Something the various administrations of this country constantly claim to be genuinely and sincerely concerned about.”
11. In respect of Miracles case the issue is firstly to determine in which category her offending belongs. Prosecution have submitted it belongs in category two. In the category of driving with a high degree of recklessness and with selfish disregard for the safety of others. With respect to the prosecution I do not agree.
12. Clearly Miracle was an unlicensed driver no dispute about that. Young lady you have no business being behind the wheel of any car. But what caused this accident was not the fact that you did not have a license. What caused it was your inexperience in driving. You told me at the last calling of this matter that the vehicle stalled because you were trying to change gear. That is in accord with what is in the summary of facts and the court accepts that. But it was your inexperience in trying to fix that problem that result in this accident.
13. When the vehicle stalled and the brakes became inoperable, an experienced driver would have known how to remedy the situation. The vehicle also presumably had a handbrake which you operate manually independent of the engine. I have no doubt that what happened is you panicked when the vehicle lost power and that is what caused the accident.
14. This distinguishes this case from other recent cases of unlicensed driving causing death where the fact of the driver not having a license was not the only aggravating factor. For example in the case of Police v Salesa [2024] WSSC 131. There, it was the combination of an unlicensed driver and driver fatigue that caused the accident. This is a case of error of judgment rather than any other.
15. The appropriate way to deal with this is by way of monetary penalty rather than a prison term. The pre-sentence report from the Probation office indicates that you have strong family and financial support and you are well able to meet any monetary penalties. I note you are also caring for a 6 month old baby, you are a stay at home mother. This further mitigates against a custodial penalty as sending young mothers to prison is never in the best interests of their children.
16. I will deal first with the offence of negligent driving causing death. The maximum statutory monetary penalty for this by way of fine is $25,000.00. The courts penalty must reflect not only the seriousness of the offending but the fact that a person has died. It must also operate to discourage unlicensed drivers from getting behind the wheel of any car. And the message being that if you flout the law you will face the consequences.
17. In assessing an appropriate penalty however the court does take into account the particular circumstances of this matter including your own personal circumstances as per the pre-sentence report. Also takes into account that the traditional protocols have been fully observed and the necessary ifoga and reconciliation has taken place. It is also to your credit that you personally were part of the ifoga which is something not usually done by many offenders, usually it is just the family. I also note the Victim Impact Report from the mother of the deceased who says:
    • “Ua matou faamagalo i le faalavelave sa tula’i mai. Sa mautinoa mai lava i le amataga e le’o se faalavelave sa fuafua e tupu. Ua matou ioeina ma talia le faatoesega ma le ifoga ua uma ona faatino. Ua matou faamagalo foi ia Miracle e le o se faalavelave sa fuafuaina”.

I also take note of the fact you did plead guilty albeit belatedly but by pleading guilty you avoided wasting peoples time.

18. You must never ever do this again. You come back on another traffic problem like this and I can almost guarantee you a stay at villa Tanumalala, you understand that? (Defendant indicated she understood).
19. Ua manino lea tulaga ia oe Miracle? (Defendant: O lea lava). E maua lou avanoa nei o le a fa’asala tupe le faiga o le mataupu lenei. Ae a toe tulai mai lau susuga i seisi mataupu faapenei, leai la ua ese loa se fuafuaga ua tatau ona agai iai le fa'amasinoga.
20. On the negligent driving causing death charge the defendant will be convicted and ordered to pay the following sums: by way of a fine the sum of $3,500.00. In addition to that she will pay $500.00 to the probation office to be given to the victims mother to cover her miscellaneous medical expenses incurred in relation to the deceased. She will also pay $250.00 to the Savaii Police to defray their costs, $250.00 to the Savaii Probation Office for their costs. Finally the sum of $500.00 as general court costs total sum of $5,000.00 payable by 12:00 noon Monday, 18 November 2024 in default she will serve 12 months in prison.
21. In respect of the unlicensed driving charge she is convicted and ordered not to hold a driver license or be eligible to hold a drivers license until she has completed the necessary Defensive Driving Course of the Land Transport Authority.

SENIOR JUSTICE NELSON