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Police v Samoala [2025] WSSC 4 (7 February 2025)

IN THE SUPREME COURT OF SAMOA
Police v Samoala [2025] WSSC 4 (7 February 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

MAMONA TALIUO SAMOALA, male of Patamea.

Accused

Representation: M T. Fesili for Prosecution

C Vaai for the Accused

Sentence Decision: 7^th February 2025

ORAL SENTENCE

The Charges:

1. Mamona, you appear for sentence on one charge of negligent driving causing death carrying a maximum penalty of up to 10 years imprisonment or a fine of $25,000.00 and unlicensed driving carrying a maximum penalty of up to $200.00 fine.

The Offending:

2. Through your counsel, you’ve accepted the Summary of Facts dated 10^th October 2024. This shows that on the 31^st May 2024 between 1pm and 2pm, you were driving a Toyota Ractis on the Lano main road. You were driving towards the west, accompanying you as your passenger was your older brother Uiese Samoala, a 39 year old. At the time you were driving this vehicle, you did not hold a valid driver’s license to drive. It’s been confirmed through the sentencing process that you have never held a driver’s license.
3. As your car approached the Lami Store a Sapapalii, you noticed a bus travelling in eastwards towards Salelologa. The bus parked on the side of the road opposite a store. The bus had turned its indicators on. As you were driving in the westerly direction and the bus was parked facing eastwards, your brother noticed someone exiting the bus. Your brother urged you to slow down. However, music was playing and you did not hear him. You did not reduce speed and continued driving at 60km per hour. As your car’s front bumper passed the back end of the bus, it struck the deceased who was positioned behind the bus and attempting to cross the road to reach Lami Store. The deceased was transported to the Tuasivi Hospital. However, his injuries were fatal. He was declared dead on arrival at the hospital. The cause of death was noted as traumatic brain injury due to blunt force trauma from a motor vehicle accident, and hypovolemic shock leading to cardiac arrest.

Background of the Accused:

4. Mamona, you are a 28 year old male of Patamea Savaii. You are the sixth of eight children. You began your education at the Patamea Primary School and reached year 8. You did not continue school after year 8.
5. You have worked in New Zealand as a seasonal worker. You have very positive character references describing you as a humble and committed church goer and youth leader in the church and an obviously committed and highly regarded member of your village. You have no previous convictions.

The Victim:

6. The deceased was 17 year old Heti Manase, a young boy at year 12 at school. Manase Siueva, the victim’s father provides a Victim Impact Report. He speaks of their sense of loss and shock at losing their son. He speaks also of trying to give strength to his wife who often thinks about her son with him.
7. He confirms the performance of an ifoga which was accepted and that your family also gave financial support.

Aggravating Features of the Offending:

8. The aggravating features of your offending is that you were unlicensed never having held a driver’s license and you were driving at an excessive speed in the circumstances.
9. I do not take into account the fact that your brother warned you to slow down. You did not hear and ignore his warning. It does however demonstrate your lack of driving experience and common sense to slow down approaching a stopped bus and to look for possible pedestrians.

Mitigating Features of the Offending:

10. In Police v Tauafao [2024] WSSC 87 (19 September 2024), I examined the conduct of the victim as a mitigating factor. In appropriate circumstances, I accepted that the conduct of the victim can be taken into account in mitigation. In this case, mitigating of your offending is the victim walking from behind the bus into the path of your car as he attempted to cross the road. He will have been obscured by the bus giving limited warning for you to see him before he was struck.
11. There are no aggravating features personal to you as an offender. You are a first offender.

Mitigating Factors Personal to the Offender:

12. There’s a number of mitigating features I take into account personal to you Mamona:
    • (a) Your prior good character reflected in the references provided;
    • (b) Your heartfelt remorse expressed in court;
    • (c) The ifoga, reconciliation and payment of $10,000 and fesoasoani given to the victim’s family; and
    • (d) Your early guilty plea.

Discussion:

13. Mamona, this is another tragic case involving the road death of another young person, this time 17 year old Heti Manase. The sense of loss that his parents feel is heartbreaking. As is so often said, no parent should ever have to bury their child. Also, no decision of this court can bring their son back but I hope that after today, they may at least have some closure with the end of these proceedings.
14. Prosecution seeks an imprison term with a start point of between 2 and 3 years imprisonment. Your lawyer seeks a non-custodial sentence. As counsel recognize, 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 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.
15. 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.
16. Your case is not a category 1 case. It is not a case momentary inattention or error of judgment. You chose to drive the car without ever having held a driver’s license. When you were driving, you were driving well above the applicable speed limit. The Road Traffic Regulations 1961 provides that when passing a parked bus from which passengers are boarding or alighting, the speed limit is 15mp/h. You were driving at 60km/h or equivalent of approximately 37mp/h. The injuries a pedestrian would suffer being struck at 15mp/h compared to 37mp/h would in all likelihood be vastly different.
17. In two recent cases of Police v Salesa [2024] WSSC 131 and Police v Oloialii [2024] WSSC 100, both drivers had never held a driver’s license. It was stated that “Driver’s driving on the road without ever having held a driver’s license represent a serious and obvious risk to others.” While your brother saw a passenger exit the bus, recognized the danger and urged you to slow down which you did not hear, you did not slow down and continued on at 60km/h. As I said in those two earlier cases, “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, the consequences are very serious.” As the English Court of Appeal in R v Cooksley [2003] 3 All ER 40 (Crim App) identified, driving without ever having held a driver’s license constitutes highly culpable driving behaviour.
18. I have considered the authorities referred to me and those I have referred to earlier. I have also taken into account Police v Talamoni [2022] WSSC 45 (26 July 2022). In my view, the ordinary start point for this offending would be 3 years. However, your culpability is substantially reduced by the actions of the victim which regrettably resulted in his death. Passengers should never attempt to cross a road from behind a parked bus. They are substantially obscured by the bus, there is little warning to drivers that someone is about to cross the road. This case demonstrates that risk with the victim being struck as your car bumper struck the victim as you passed behind the bus. The appropriate adjusted start point for this mitigating factor as to the offending is 12 months imprisonment. From that start point, I deduct 2 months for your prior good character and remorse; 2 months for the ifoga, reconciliation and fesoasoani paid to the victim’s family and from the balance, 2 months for your early guilty plea leaving an end sentence of 6 months imprisonment.
19. Before I conclude my sentencing remarks, I wish to echo remarks made by Justice Roma in Police v Talamoni [2022] WSSC 45 (26 July 2022) where he said:
    • “Tragically this incident resulted in the untimely death of a young girl who had her whole life ahead of her. But it also highlights the real need for better awareness of safe road use practices by everyone. It is not enough to increase penalties and hope that reckless driving on the roads would be deterred.”
20. In the space of just one month late last year, I dealt with 4 cases of negligent driving causing death, a number of which involved drivers never having held a driver’s license. There is critical need, as demonstrated by this case and many others coming before the courts, for extensive road safety awareness programs to be undertaken. Road users will see almost every day, as in Police v Sinclair (unreported, 15/11/2024) young children wandering the side of roads, or on roads – often the case, going to and from school or elsewhere completely unsupervised. Road users all also see as in this case and in Police v Talamoni, people crossing the road from behind the bus. Road users will also see every day drivers driving at high speed; over-taking on corners; going through red lights or just plain reckless driving that boggles the mind. Tragically, death and serious injury often result.
21. Recently reported in the Samoa Observer on the 18^th December 2024 is a project to promote road safety by the Samoa Red Cross, and the Global Road Safety Partnership funded by the Italian Red Cross. It is however also incumbent on Samoa’s own institutions such as Police, the Land Transport Authority and the Accident Compensation Corporation charged with road safety and the protection of the public to actively lead and fund road safety awareness programs to increase compliance with our traffic laws and hopefully reduce deaths and injuries. Much more needs to be done.

Result:

22. On the charge of negligent driving causing death, you are convicted and sentenced to 6 months imprisonment less time remanded in custody. On the charge of unlicensed driving, you are convicted and discharged. That is factored in the NDCD sentence.
23. As this court also sits a Coroners Court, I issue the Coronial Finding to certify that Heti Manase Siueva, a 17 year old male of Falevao died at Lano on the afternoon of 31st May 2024 as a result of traumatic brain injury and hypovolemic shock leading to cardiac arrest due to blunt force trauma sustained when struck by a motor vehicle on the Lano Main Road on 31^st May 2024. I further confirm that the driver of the vehicle involved has been dealt with according to the law.

JUSTICE CLARKE