IN THE SUPREME COURT OF SAMOA
Police v Alafaio [2024] WSSC 25 (15 April 2024)

Case name: 	Police v Alafaio	
		
Citation: 	[2024] WSSC 25	
		
Decision date: 	15 April 2024	
		
Parties: 	POLICE (Informant) AND PUNIVALU ALAFAIO, male of Fusi Safotulafai and Aleisa (Defendant)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Senior Justice Nelson	
		
On appeal from:	 	
		
Order:	On the offence of negligent driving causing death Pastor you will be convicted and sentenced to a term of 2 years in prison but any remand in custody time awaiting the determination of this matter to be deducted from that term. In respect of your drivers license that is going to be suspended for 2 years, it is not to be reinstated until you have completed and passed an approved Defensive Driving Course prescribed by the Land Transport Authority for these kinds of cases.	
		
Representation: 	T. Fesili and J. Leung-Wai for prosecution
A. Su’a for defendant	
		
Catchwords: 	-	negligent driving causing death - 	
		
Words and phrases:		
		
Legislation cited:	 	
		
Cases cited:	Cooksley & Anor v R [2003] 3 All ER 40
Police v Vaamainuu [2022] WSSC 31
Police v Vaafusuaga [2023] WSSC 41	
	Police v Luafau [2012] WSSC 127	
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
		
POLICE
Informant

AND:

PUNIVALU ALAFAIO, male of Fusi Safotulafai and Aleisa.
Defendant

Counsel:	
T. Fesili and J. Leung-Wai for the prosecution 
A. Su’a for the defendant
Sentence:	 15 April 2024

S E N T E N C E
1.	The defendant has pleaded guilty to a charge that at Tanumapua on Wednesday 17 May 2023 while driving a Mitsubishi Triton double cab pickup registration number 14439, drove the said vehicle negligently causing it to overturn thereby resulting in the death of Jane Alofamoni Gosche, an 18 year old female of Tufuiopa who was a passenger in the vehicle.

2.	The defendant is a 61 year old male of Manono, Saoluafata and Aleisa. He was at the time of this offending the Church Minister for the SISDAC Church at Aleisa. 

3.	The deceased was a member of the defendants congregation who was catching a lift from Aleisa into Apia town. 

4.	The police summary of facts which has been accepted by the defendant says that on the Wednesday 17 May 2023 between 3.00 and 4.00pm, the defendant and another person named Ama arrived at the victims house at Aleisa in his blue Triton pickup. The deceased accompanied by her sister Margaret Gosche and her cousin Lupe Faitasia entered the vehicle and it was planned that they would travel to Taufusi to pick up a passenger and then be dropped off at Tufuiopa. 

5.	The defendant drove the vehicle while the deceased sat next to him on the passengers side. Margaret and Lupe were seated in the back seat and Ama was in the tray of the pickup. The vehicle made one stop to drop Ama off before continuing its journey to Apia. When the vehicle went past the Ulia Construction compound, the summary says Margaret and Lupe became concerned with the speed it was travelling. When the vehicle reached the LDS Church Lupe said to the deceased who was sitting next to the defendant: “Oka! Laa malepelepe kagaka i le alu o le kaavale.” 

6.	Despite these concerns the vehicle did not slow down, the summary says it continued to overtake other cars that were in front of it. When the vehicle reached a curve at Tanumapua the defendant lost control and the vehicle swerved to the right side of the road and crashed upside down.  The impact of the crash resulted in the defendant being thrown to the back seat between Lupe and Margaret but regrettably the deceased was trapped between the vehicle and the ground when the vehicle came to a rest upside down after the crash.  

7.	Several bystanders who witnessed the accident rushed to the crash site to free the defendant and the passengers from inside the vehicle. It is recorded the defendant was the first to exit the vehicle followed by Lupe and Margaret. The bystanders then successfully flipped the vehicle in order to recover the body of the deceased. The police attended the scene and the deceased was taken to hospital where she was pronounced dead on arrival. 

8.	The report of the attending physician to the Coroner notes the cause of death was severe traumatic brain injury and severe multiple trauma as a result of the accident. The doctors report lists a large number of injuries sustained by the deceased. To her head, the right side of the head was severely deformed with multiple lacerations and multiple open fractures to the right brow, the frontal bone, and the parietal and temporal bone of the skull. Brain matter was coming out from the open wounds of her head. Added to this her right ear was severed and multiple fractures were detected to the right cheek and to her jaw bone. There were multiple rib fractures of the right chest wall and the report notes not only deformities but that the entire right chest wall had lost its normal anatomical structure and had literally caved in. 

9.	Quite clearly these were non-survivable injuries suffered at the time of the accident and the Court sitting in its capacity as a Coronial Court certifies that the deceased, an 18 year old female of Tufuiopa died at Tanumapua on the 17th of May 2023 as a result of fatal injuries sustained in a road accident. 

10.	Unfortunately the Coroners Court failed to order a post-mortem examination or that an Inquest be conducted into this accident which would have fully explained and addressed other important questions and issues such as why the victim and no other passengers in the vehicle perished? or why the defendant, who was obviously not wearing a seatbelt, was thrown to the safety of the back seat and not the victim who was sitting beside him in the front? 

11.	An Inquest would have also determined whether the vehicle in fact was equipped with functioning seatbelts; or did the victim become trapped because in fact she was wearing a seatbelt? and did the vehicle flip only once and if so, how could this have caused the extensive and traumatic injuries sustained by the victim? or did the vehicle in fact roll a number of times before coming to rest upside down in a roadside ditch? Did the curve preceding where the accident occurred play a role in this accident? Or the camber of the road in this area so that future warning signs need to be posted on the road? 

12.	It should as in past cases be a standard practice of the Coroners Court to require a post-mortem examination and Inquest into the circumstances of motor vehicle accidents that cause death so that the Court can have answers to these and other relevant questions, and if necessary make appropriate recommendations in accordance with the functions of the Coroners Court as prescribed by section 10(g), (h) and (i) of the Coroners Act 2017. 

13.	By law the offence of negligent driving causing death now carries a maximum penalty of 10 years imprisonment or a maximum fine of ST$25,000. It is a serious offence as denoted by its maximum penalties and because it involves the loss of a human life.

14.	As counsels have correctly noted, cases of negligent driving causing death generally fall into two categories. Firstly, accidents caused by momentary inattention or error of judgment on the part of the person driving the motor vehicle. These kinds of cases lie at the lower end of the negligence scale and do not normally attract a penalty of imprisonment. The second and more serious category are accidents caused by driving in a manner that shows a high degree of recklessness or a selfish disregard for the safety of others. This is at the opposite end of the spectrum and normally results in an imprisonment sentence. 

15.	The approach of the Courts has been discussed in various cases including recently in Police v Vaamainuu [2022] WSSC 31 and Police v Vaafusuaga [2023] WSSC 41, both being referred to by counsels in their submissions. Counsel for the defendant has argued strongly that the defendants case falls within the first of the two categories and does not require a penalty of imprisonment. He says the vehicle was not speeding. his instructions are that the defendant was driving at somewhere around 35-40 miles an hour on a rainy and drizzly day at Aleisa. Further that the defendant was tired after an exhausting day that began at 9am for carpentry works for his residence and cleaning of the church premises at Aleisa. 

16.	The defence suggestion is that in fact what happened is the defendant fell asleep at the wheel, something that is not unusual for him as he has hypertension which can according to his doctor Dr. Enosa in his medical report filed in this matter, cause blurry vision and drowsiness. Counsel also suggested that traffic in the area of the accident at the relevant time was not heavy but was light and that what happened, and the reason for this accident, was the defendants momentary inattention or error in judgment.   

17.	Respectfully to counsel I cannot agree. All the witnesses to this accident agree the defendants vehicle was travelling at an excessive speed. The police summary of facts says one of the passengers in the vehicle expressed concern about that speed but the defendant ignored these concerns and continued to “overtake other cars that were in front.” 

18.	A coconut seller by the name of Nonu Faumuina, a witness to the accident testifies in his statement to the Police as follows:

“O la’u vaai i lea taavale sa lavea e masani ona ou vaai i ai o fealuai mai i luma o le matou auala. O lea ou te manatua pe tusa o le tolu masina talu ai sa molimauina i le aso na ou auai i luma o le auala o loo faatau au niu ae agai mai lea taavale mai Apia mo Aleisa. Ina ua oo mai i luma o le matou fale o loo i ai le pioga ma ia tipiina ai ni taavale se lua. O lea ou te malamalama na ou avea i luga o le polokalame a le leitio i a Kose pe mafai ona pasia e se taavale i le pioga lea ona o le tulaga lea. O lea ou te manatua foi o le vaiaso na te’a nei i le Aso Lulu i le aoauli a o faatau foi a’u niu ae toe agai mai foi le taavale lenei. Sa agai mai lenei taavale ma ia toe pasiina se taavale o le ituaiga o le Voxy ae ua ou lē maitauina le numera. O lea ou te manatua sa ou valaau i ai, ‘Sole’ ae ata le Tama lenei ma talo mai lana lima. O lea ou te manatuaina o le taimi lea sa tagi ai leisi tamaitai lea pei o sona uso lea ua maliu sa ia faapea atu i leoleo sa muamua taunuu mai i le faalavelave e faapea ua saoasaoa tele le taavale.”

19.	Similarly another witness to the accident Polenisia Mauluulu says in her statement to the Police: 

“Sa masani lava ona ou vaai i lea taavale ona ou iloa le tagata le onaina le taavale o le Faifeau Aso Fitu ma o ia tonu lea sa faapea ona ia tauaveina le taavale lea sa faapea ona tulai mai lenei faalavelave. Sa faapea ona agai mai lea Faifeau ma faapea mai i a te a’u, ‘Ou te ofo i le lavea o lau taavale.’ Sa fai atu i ai leisi tagata ou te lē masani ai, ‘Ua fai si saoasaoa o lou taavale,’ ma faapena ona toe agai ese le Faifeau lea sa tauaveina le taavale lea ua lavea. E le’i leva lava ae taunuu mai loa le taavale Fuimu ma sosoo ai loa ma le taavale o Leoleo.”

20.	The Police photographs and the fact that the vehicle flipped and ended up on the side of the road opposite to its lane upside down are further indicators of speed and a loss of control. The speed limit in this area is in fact 35 miles per hour and by the defendants own admission through counsel he was driving in excess of that limit. Add to this his overtaking and the fact that it was raining and drizzling at the time and you have all the elements almost of an accident waiting to happen. 

21.	I also do not accept that this is a light traffic area. Aleisa is a growing suburb and this road is the main hub for those wishing to access the western and south-western coast of Upolu. The road is used by traffic leaving Apia to travel to Lefaga and the associated heavily populated parts of the island. Traffic after 3 o'clock even on a weekday is always medium to heavy. The presence of other cars on the road in front of the defendant confirms this to a certain extent. 

22.	As for the argument that the defendant fell asleep momentarily this offers him no excuse. If the defendant was tired and exhausted from his labours or drowsy from his medical condition and/or medication he should not have been driving in the first place. As noted by Kay CJ in A-G’s Ref (No.56) [2003] 1 Cr App R 476 a case referred to by this Court in Vaamainuu: 

“Those who fall asleep at the wheel whether from excess alcohol or otherwise represent an enormous danger to other road users. Accordingly, it is incumbent upon all to ensure that they do not place themselves in a position where that is likely to happen….. 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.” 

23.	Reference should also be made to the very helpful discussion by the United Kingdom Court of Appeal (Criminal Division) in the leading case of Cooksley & Anor v R [2003] 3 All ER 40 where in considering the equivalent English offence of dangerous driving causing death, the court said:

“Where death is not a consequence of the dangerous driving, then the maximum penalty is 2 years imprisonment (similar to our offence of reckless or dangerous driving which also has a 2 year maximum penalty: section 39 Road Traffic Ordinance 1960). As that offence can still result in catastrophic injuries being caused by an accident we agree … that under the present structure there is an unduly large gap between the maximum of 2 years for dangerous driving and 10 years for an offence in which the same standard of driving “has by chance resulted in death” (our offence of negligent driving causing death also has a 10 year maximum: section 39A(3)(a) Road Traffic Ordinance 1960). Like the Panel (UK Sentencing Advisory Panel), we therefore welcome the proposed 5 year maximum for the basic offence of dangerous driving.  We do not see the same need to increase the maximum of 10 years imprisonment for death by dangerous driving, particularly as the offence of motor manslaughter still remains. (This is also the case in Samoa). That offence being reserved for situations where on the facts there was a very high risk of the driving resulting in death (See R v Pimm [1994] RTR 391).”

24.	The court went on to note:
“(i)   	Although the offence is one which does not require an intention to drive dangerously or an intention to injure, because before an offender can be convicted of dangerous driving, his driving has to fall “far below” the standard of driving that would be expected  of a competent and careful driver and the driving must be such that it would be obvious to the same competent and careful driver that driving in that way would be dangerous, it will usually be obvious to the offender that the driving was dangerous and he therefore deserves to be punished accordingly. 

(ii)   	In view of the much heavier sentence which can be imposed where death results as compared with those cases where death does not result, it is clear that Parliament regarded the consequences of the dangerous driving as being a relevant sentencing consideration so that if death does result this in itself can justify a heavier sentence than could be imposed for a case where death does not result. 

(iii)   	Where death does result, often the effects of the offence will cause grave distress to the family of the deceased. The impact on the family is a matter that the courts can and should take into account.  However, as was pointed out by Lord Taylor CJ in Attorney General’s References Nos. 14 and 24 of 1993 (Peter James Shepherd, Robert Stuart Wernet) [1994] 15 CAR (S) 640 at 644:

“We wish to stress that human life cannot be restored, nor can its loss be measured by the length of a prison sentence.  We recognise that no term of months or years imposed on the offender can reconcile the family of a deceased victim to their loss, nor will it cure their anguish.”

(iv)   A factor that courts should bear in mind in determining the sentence which is appropriate is the fact that it is important for the courts to drive home the message as to the dangers that can result from dangerous driving on the road. It has to be appreciated by drivers the gravity of the consequences which can flow from their not maintaining proper standards of driving. Motor vehicles can be lethal if they are not driven properly and this being so, drivers must know that if as a result of their driving dangerously a person is killed, no matter what the mitigating circumstances, normally only a custodial sentence will be imposed.  This is because of the need to deter other drivers from driving in a dangerous manner and because of the gravity of the offence.” 

25.	In speaking of factors which would aggravate the offending, the Court of Appeal cited:

“The consumption of drugs (including legal medication known to cause drowsiness);
Greatly excessive speed;
Disregard of warnings from fellow passengers;
A prolonged, persistent and deliberate course of very bad driving;
Aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake);
Driving when knowingly suffering from a medical condition which significantly impairs the offenders driving skills; and
Driving when knowingly deprived of adequate sleep or rest.”

26.	The defendant’s conduct in this case cannot be described as momentary inattention or error of judgment and in my view belongs in category 2, driving recklessly and in a manner showing a selfish disregard for the safety of others. 

27.	The aggravating factors of the offending includes driving at an excessive speed, particularly having regard to the wet and rainy conditions at the time; recklessly overtaking vehicles while approaching a curve; ignoring warnings from a passenger seated inside the vehicle; driving while tired or possibly while under the influence of his medication; the fact that the defendant’s actions has killed an 18 year old girl, someone who had her whole life ahead of her needlessly terminated by his negligence. 

28.	The deceaseds sister in her victim impact report also refers to the speed and the defendants callous behaviour post-accident: 

“A o la’u vaai ua matuā ova tele le saoasaoa o le taavale ma e leai ma se taumafai e tau taofiofi lea na iu ai lava ona maimau le ola o si ou uso. Sa lagona lava le faanoanoa ona e leai ma se taumafai a Punivalu e fesoasoani ia i matou i le taimi na lavea ai le taavale ae pau lava le tulaga sa vaaia o lona taumafai e oso ese mai fafo ma le taavale ae tuu ai lava ma’ua faatasi ai ma si ou uso lea ua maliu. Nai tagata sa tauvalaau i ai lea sa maua ai se fesoasoani ae leai ma se gaioiga a Punivalu na fai e iloa ai o loo popole pe naunau atu.”

29.	The consequences of your actions Sir have been severe and for the young victim and her family very permanent. In 2020 the Parliament of this country increased the maximum penalty for negligent driving causing death substantially to its present level of 10 years in prison or a ST$25,000 fine. It signals their concern which is also our concern at the number of cases involving lives unnecessarily taken on our roads by this kind of driving behaviour. The Court must continue to echo and restate these concerns to the public and treat the offence of negligent driving causing death with the seriousness it deserves. The penalty must not only reflect the loss of a persons life but also send a message to offenders and to every driver in the country that this kind of driving behaviour is not acceptable and can have severe consequences. Considering all the circumstances an imprisonment term must be imposed. 

30.	Sentence will start at 4 years imprisonment. From that you are entitled to certain deductions which your counsel has quite properly referred to. The first is for your clean record, background of service and tautua not only to your Ekalesia and family but also to the community at large and to the country. The many character references filed on your behalf with the Probation office are a testimony to this. You will receive the usual 6 months deduction from penalty to reflect those factors. 

31.	You will also receive a further deduction to reflect the traditional” ifoga” and “faaleleiga” that has been carried out in this matter, as well as your contribution to the “lauava” of the main victim in this matter. These have all been confirmed by the Probation Service in the pre-sentence report.  A deduction of 9 months will apply for those. 

32.	For your guilty plea, this has saved the Courts limited time and resources, you will also receive the usual ¼ or 25% deduction from the balance of your term, that is a deduction of 8 ¼ months. I will use that deduction notwithstanding the fact that Prosecution witnesses did turn up on the day we were to conduct a hearing into the then disputed summary of facts. 

33.	After making these deductions Pastor it leaves a balance of 2 years and 3 months. Your counsel has asked and submitted that the Court make a further deduction for your age and your medical condition. The age deduction is based on Police v Luafau [2012] WSSC 127 (23 November 2012) but the defendant in that case was 66 years old which is older than your present 61 years old. As for your medical condition it is clear from your doctors report that you are being treated by appropriate medication.  There is no impediment to your continuing your medication while you serve your term. I will not make a deduction for those factors but I will however remove the 3 months as an exercise in leniency to you leaving a balance of 2 years in prison for this offence. 

34.	On the offence of negligent driving causing death Pastor you will be convicted and sentenced to a term of 2 years in prison but any remand in custody time awaiting the determination of this matter to be deducted from that term. In respect of your drivers license that is going to be suspended for 2 years, it is not to be reinstated until you have completed and passed an approved Defensive Driving Course prescribed by the Land Transport Authority for these kinds of cases.

								        SENIOR JUSTICE NELSON