IN THE SUPREME COURT OF SAMOA
Police v Savaiinaea [2024] WSSC 39 (27 June 2024)

Case name: 	Police v Savaiinaea	
		
Citation: 	[2024] WSSC 39	
		
Decision date: 	27 June 2024	
		
Parties: 	POLICE (Informant) v SIOMIA JUNIOR SAVAIINAEA (Defendant)	
		
Hearing date(s): 	Submissions: 07 June 2024	
		
File number(s): 		
		
Jurisdiction: 	Supreme Court – Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Perese	
		
On appeal from:		
		
Order:	Siomia Savaiinaea, I convict and sentence you to probation for 2 years, and to carry out community work of 200 hours.

The defendant has a mandatory disqualification from holding or obtaining a driver’s licence pursuant to section 39A(3) of the Road Traffic Ordinance 1960 for 1 year from the date of this Addendum.	
		
Representation: 	L Strickland for Prosecution 
L K Koria for Defendant	
		
Catchwords: 	Negligent driving causing death – supervision sentence – community work – mandatory disqualification (licence).	
		
Words and phrases:		
		
Legislation cited:	Road Traffic Ordinance 1960, s. 39A(3).	
		
Cases cited:	R v Cooksley [2003] 2 All ER 40.	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

SIOMIA JUNIOR SAVAIINAEA

Defendant

Counsel:	L T Strickland for Prosecution 
		L K Koria for Defendant

Submissions:	7 June 2024
Sentence: 	27 June 2024

SENTENCING DECISION OF PERESE CJ 
1. 	In my supplementary decision delivered on 18 April 2024, I held the defendant criminally liable as charged.  
2. 	The facts are set out at paragraph 8 of my decision dated 20 November 2024.  For convenience I set them out below:
(a) 	At around 4.30 p.m. on 21 June 2021, the defendant drove along Vaimea Road, Vaimoso, towards the St Joseph’s Catholic College.
(b) 	The defendant had not long turned into Vaimea Road when his car collided with the victim as the defendant was driving to his destination.  
(c) 	The victim was struck at about the mid-point of the front bumper of the defendant’s car.  There is photographic evidence of the point of impact.  
(d) 	The victim fell forward onto the bonnet of the vehicle and his body smashed into the right side of the windscreen (immediately in front of the right-hand drive vehicle).  
(e) 	The victim then fell off the right side of the car and onto the road. 
(f) 	The defendant’s car came to a stop some meters past the point of collision.
(g) 	The defendant went to the aid of the victim, who was by this time being attended to by two other members of the public.
(h) 	The defendant caught a taxi to the Apia Police Headquarters to report the accident; he was cautioned and elected to give a statement.
(i) 	The victim sustained extensive injuries and died of these injuries on the way to the hospital.  
3. 	The parties were given the chance to make submissions on sentence on 7 June 2024, and I have also taken into account the Probation Reports dated 22 May 2022 and 5 June 2024.  The 2 June report attached some excellent supporting references and testimonials given on the defendant’s behalf.  In the 22 May 2022 report the Probation Officer recommended a suspended sentence if the court seeks an alternative from imprisonment.  
4. 	I have had the privilege of hearing from the deceased’s brother, Momoemausu Fa’avaoga Lesepu Leva’a, the Matai of the deceased’s family.  Momoemausu spoke about the ifoga, informing the court of the defendant’s family seeking of forgiveness in the traditional way of an ifoga.  The defendant’s family covered themselves with a large ietoga. After the ietoga was lifted off them, to demonstrate forgiveness, the defendant’s family gave the victim’s family nine large ietoga and $20,000 to help with Siaosi Leva’a’s funeral.  Other large ietoga were gifted to the Methodist Church in the village of Falelauniu Tai, and they gave him $1000 and a large ietoga, and a further $100 to acknowledge his speech.  In total, the defendant’s family gave 12 large ietoga and $21,100.  
5. 	The essence of Momoemausu’s speech was to let the court know that the family had forgiven the defendant, and they did not want to see him be imprisoned. The speech was passionate and clear, recorded in handwritten notes of four pages, which Momoemausu hand to the Registrar following the hearing.  
6. 	The Police were not able to get a report from the deceased’s wife, Vaetofaga Leva’a. Attempts had been made to seek her views but these were unsuccessful.  However, in a statement to the Police, Vaetofaga expressed her forgiveness of the defendant, and that she had asked their children to also forgive the defendant.  The impact of the offending on her is capable of being inferred. One can draw conclusions of tremendous loss that comes from losing a partner of 50 years.  She advised the Police that even at the age of 78 years, the victim helped to tend the family’s plantation for their sustenance.
7. 	The defendant is a decent young man, married, with a daughter from a previous relationship.  He teaches automotive engineering at the Punaoa Technical College.  I accept Mr Koria’s characterisation of the accident as a momentary lapse of attention.  I am left to ponder on how many of us have had momentary lapses behind the wheel of a car, and the aptness of the saying but for the Grace of God go you or I.
8. 	Mr Leva’a lost his life in a terrible, senseless, tragedy.  It has changed the lives of everyone associated with him and his family.  The process of sentencing requires the court to apply principles found in both statute and the common law.  There are many things to consider to ensure justice is administered fairly for the victim, society and the defendant.    
9. 	In my view, the starting point in any sentencing is a period of imprisonment when a life has been lost, whatever the offending.  The end sentence may not be imprisonment, but that will depend on a consideration of the features of this case and of the offender, any minimum sentence that must be imposed and other legislative guidance in both the Sentencing Act 2016 and the Community Justice Act 2008.
The aggravating features of the offending 
10. 	The prosecution and defence agree there are two aggravating features of the offending:
(a) 	The impact, extent and nature of the injuries suffered by the deceased which resulted in death.
(b) 	The impact of the offending on the deceased’s family.
11. 	I would add one further aggravating circumstances; the road conditions and visibility on the day were clear and the defendant had, potentially, an unobstructed view of the victim who was walking along the grass pathway to the side of the road.
12. 	The Police say there are no aggravating features personal to the defendant.
Mitigating features
13. 	Police submit there are no mitigating features of the offending. 
14. 	Mr Koria did not make submissions concerning mitigating features of the offending, but this overlooks the forensic photos of the victim taken at the hospital showing the victim wearing clothing with patterns and colours that may have made it difficult to see the victim against the background of a planted hedge. In other words, the victim may have been camouflaged up until the last moment before impact.  This does not mean that therefore there is doubt about the defendant’s guilt, because the defendant was obliged to drive on the road, but he veered off it striking the victim. It is a mitigating factor of the offence that the pattern and colour of the clothes worn by the victim may have camouflaged his presence.  
15. 	Though the Police submits there are no mitigating features of the offending, they say there are a number of mitigating features personal to the defendant.
(a) 	The defendant is a first offender;
(b) 	The defendant’s previous good character;
(c) 	The carrying out of the customary ifoga and reconciliation.
Mr Koria added these mitigating features:
(d) 	Remorse, and an attempt to enter a guilty plea, which was vacated because he was urged to do so by the bench at sentencing. The sentencing was before me and Mr Koria’s submission is inaccurate.  Mr Koria indicated the defendant wished to vacate his guilty plea but asked for a sentence indication, to which I gave the response that based on the prosecution proving its case, a period of imprisonment of around two years was inevitable.  It was on that basis that the defendant vacated his plea and sought to defend the charge.  During his evidence the defendant attempted to argue he did not hit the victim but that the victim ran in front of his car that he says was being driven on the road. I found the defendant’s evidence unreliable. The evidence of independent good Samaritans who took the victim to hospital was critical in terms of where they found the victim lying on the road.  The Police also led evidence from a young girl with whom I am satisfied saw the way the accident unfolded from a short distance away.  The evidence is beyond reasonable doubt, the defendant’s car left the road, and hit the victim who was at the time walking along the grass pathway next to the road.  The defence that the victim ran into or in front of the car while the car was on the road is unsustainable, and rejected.  Any personal remorse outside of the ifoga that is sought to be advanced comes much too late to be genuine.   
(e) 	The defendant’s personal circumstances – he is described as the provider of his family.
16. 	Police submit that an appropriate starting point is between 30 and 36 months, and following the appropriate discounts a sentence of imprisonment.  Defence submits that based on the sentencing guidelines in R v Cooksley [2003] 2 All ER 40, that the court should adopt a starting point of 12 – 18 months imprisonment.  I consider this submission to be out of order.  The court in R v Cooksley provides that starting point for matters not involving aggravating factors.  Mr Koria himself acknowledged two aggravating features and I identified a third.  
17. 	The appropriate starting point is between 24 and 36 months under R v Cooksley, which is about the submission made by the Police. 
18. 	I adopt the starting point of 24 months as the appropriate starting point in this case. I allow a discount of 6 months, or 25%, for the defendant being a first offender and for his previous good character.  I also allow 8 months, 30%, on account the ifoga. I do not give him any further discount on account of remorse.  
19. 	After taking into account the discounts, the defendant would serve a sentence of 10 months. 
20. 	However, I am going to give him a non-custodial sentence.  I was impressed by the submissions made on behalf of the deceased’s family.  
21. 	The sentencing process has as one of its essential features the purpose of holding the defendant accountable for the harm done to the victim and the community.  Momoemausu’s speech satisfied me that the defendant has on a cultural level been held accountable for the harm done to the victim and the victim’s community.  Other features of sentencing include the principles of promoting in the defendant a sense of responsibility for and an acknowledgement of harm; providing for the interests of the victim; denouncing the conduct in which the defendant was involved; deterring the defendant or other persons from committing the same or a similar offence; protecting the community and to assist in the defendant’s rehabilitation and reintegration.  
22. 	In my respectful view, these purposes may be satisfied by a Community based sentence.  It is the case that where a death is involved, that will inevitably mean the starting point of any sentence is a period of imprisonment.  The death in this case was caused by the defendant’s negligent driving because the defendant ran off the road.  But it was due to a momentary lapse and perhaps the difficulty of seeing the victim walking along the side of the road, which I referred to earlier.  It was not the result of speeding, the consumption of alcohol or other intoxicating substances such as drugs or kava, home brew. He was not distracted by passengers or eating and dropping hot food on himself, reaching for a drink, turning on the radio, or texting while driving. There was no evidence suggestive of other actions that may have contributed to the eventual crash.  He simply, momentarily, nodded off, and lost control of his car.  
23. 	Might it be said that by driving in this way (falling asleep at the wheel) that his behaviour fell short of what could be expected of a prudent driver?  That might be advanced in appropriate cases. In this case there is no evidence of the defendant having had previous episodes of falling asleep at the wheel from which we could infer that he assumed the risk of bad things happening if he fell asleep at the wheel, and should therefore be judged more harshly. This is undoubtedly a wakeup call for the defendant to keep himself healthy. 
Sentence
24. 	Siomia Savaiinaea, I convict and sentence you to probation for 2 years, and to carry out community work of 200 hours.
ADDENDUM:
The defendant has a mandatory disqualification from holding or obtaining a driver’s licence pursuant to section 39A(3) of the Road Traffic Ordinance 1960 for 1 year from the date of this Addendum.
DATED this 30th day of August 2024 
CHIEF JUSTICE