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Police v Faatafa [2016] WSSC 51 (8 April 2016)

SUPREME COURT OF SAMOA
Police v Faatafa [2016] WSSC 51

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1146/15

BETWEEN

P O L I C E
Prosecution

A N D

AUKUSITINO FAATAFA male of Lotofaga, Aleipata.
Accused

Counsel:
O Tagaloa for prosecution
L J Brunt for accused

Sentence: 8 April 2016

S E N T E N C E

The charge

1. The accused Aukusitino Faatafa is a 41 year old male of Mangere in Auckland, New Zealand, and Lotofaga, Aleipata. He appears for sentence on one charge of manslaughter which involved the use of a motor vehicle, contrary to ss.88 and 102 of the Crimes Act 2013, which carries a maximum penalty of life imprisonment pursuant to s.108. To the charge, the accused had initially pleaded not guilty and a date was set for hearing the charge. However, the accused subsequently changed his plea from not guilty to guilty.

The offending

2. The facts of this case may be gathered from the prosecution’s summary of facts and what the accused told the probation service as it appears from the pre-sentence report.
3. On Sunday morning 1 February 2015, the accused travelled with his niece in a Rav 4 car driven by the accused from Lotofaga, Aleipata, to Falealili to buy some ice cream for their Sunday brunch (toonai). The accused who had been drinking the previous night was heavily intoxicated. He was still drinking up to the time he left with his niece to buy ice cream. On their way, the accused was driving very fast and was speeding on the road. When the car reached a small narrow bridge at the village of Saleilua, Falealili, it continued to speed through the bridge and as a result left its side of the road and was driving on the wrong side of the road. There was then an oncoming car travelling from the opposite direction and the accused swerved his car back to the other side of the road. In doing so, the accused lost control of his car and the car went off the road and onto the grass. Because of the accused’s car was speeding so fast, it hit the 9 year old victim who was walking on the grass outside of her house. The victim fell on the ground and the accused’s car ran over her body. She died immediately as a result.

The accused

4. The accused is married but he and his wife have no children. The accused and his wife live in Mangere at Auckland, New Zealand. He works for a construction company in Auckland. At the time of this fatal accident, the accused was visiting his parents and family in Samoa.
5. Following this fatal accident, the accused’s family performed a ifoga to the family of the deceased. The ifoga was accompanied by a presentation consisting of one large fine mat, 50 cartons of canned fish, 20 boxes of chicken parts, a large cattle beast, and $4,000 cash. The ifoga was accepted. The accused was also penalised by his village council. He paid a penalty to his village consisting of 30 cartons of canned fish, a large cattle beast, and $500 cash.
6. The accused is also a first offender and the character testimonials provided to the probation service show that he is a person of good character. The accused’s cousin Tofai Sione told the probation service that the accused is a supportive and hardworking member of their family who helps out with many family activities. The accused’s parish priest in his written testimonial refers to the accused as a regular participant in Sunday and week-day masses and is a hard working member of the parish community. The written testimonial from the pulenuu of the accused’s village shows the accused as a reliable and dependable person within his family. He is also well liked and well behaved.
7. The accused has also pleaded guilty to the charge against him though somewhat belated. His counsel told the Court that if the defence had had all the trial documents from the prosecution when this case was first called for mention, the accused would have pleaded guilty at the earliest opportunity.

Aggravating and mitigating features

8. In Gacitua v R [2013] NZCA 234, para [25], the New Zealand Court of Appeal said that the aggravating and mitigating factors recommended by the English Sentencing Advisory Panel and adopted by the English Court of Criminal Appeal in R v Cooksley [2003] 3 A11 ER 40, para [15] were useful in identifying some of the aggravating and mitigating factors relevant to sentencing in a case of motor manslaughter. The weight to be given to each factor is a matter for assessment in the particular circumstances. The factors as set out in R v Cooksley [2003] 3 A11 ER 40, para [15], are:

“Highly culpable standard of driving at time of offence

• (a) The consumption of drugs (including legal medication known to cause drowsiness) or of alcohol, ranging from a couple of drinks to a ‘motorised pub crawl’
• (b) Greatly excessive speed; racing; competitive driving against another vehicle; ‘showing off’
• (c) Disregard of warnings from fellow passengers.
• (d) A prolonged, persistent and deliberate course of very bad driving.
• (e) Aggressive driving (such as driving much too close to the vehicle in front, persistent inappropriate attempts to overtake, or cutting in after overtaking).
• (f) Driving while the driver’s attention is avoidably distracted, e.g. by reading or by use of a mobile phone (especially if hand-held).
• (g) Driving when knowingly suffering from a medical condition which significantly impairs the offender’s driving skills.
• (h) Driving when knowingly deprived of adequate sleep or rest.
• (i) Driving poorly maintained or dangerously loaded vehicle, especially where this has been motivated by commercial concerns.

Driving habitually below accepted standard

• (j) Other offences committed at the same time, such as driving without ever having held a licence; driving while disqualified; driving without insurance; driving while a learner without supervision; taking a vehicle without consent; driving a stolen vehicle.
• (k) Previous convictions for motoring offences, particularly offences which involve bad driving or the consumption of excessive alcohol before driving.

Outcome of offence

• (l) More than one person killed as a result of the offence (especially if the offender knowingly put more than one person at risk or the occurrence of multiple deaths was foreseeable).
• (m) Serious injury to one or more victims, in addition to the death(s).

Irresponsible behaviour at time of offence

• (n) Behaviour at the time of the offence, such as failing to stop, falsely claiming that one of the victims was responsible for the crash, or trying to throw the victim off the bonnet of the car by swerving in order to escape.
• (o) Causing death in the course of dangerous driving in an attempt to avoid detection or apprehension.
• (p) Offence committed while the offender was on bail.

Mitigating factors

• (a) A good driving record;
• (b) The absence of previous convictions;
• (c) A timely plea of guilty;
• (d) Genuine shock or remorse (which may be greater if the victim is either a close relation or friend);
• (e) The offender’s age (but only in cases where lack of driving experience has contributed to the commission of the offence), and
• (f) The fact that the offender has also been seriously injured as a result of the accident caused by the dangerous driving”.

9. From the above list of factors, the aggravating factors relating to the present offending would be: consumption of alcohol as the accused was heavily intoxicated when he drove his car, excessive speed, and bad driving.
10. From the same list, the mitigating factors relating to the accused as offender would be: a good driving record, absence of previous convictions which in Samoa is considered to be a neutral factor, and a guilty plea. In addition to those mitigating factors are: previous good character, the ifoga performed by the family of the accused which was accepted by the family of the victim, and the punishment imposed by the village council on the accused.

Starting point

11. The starting point for sentence recommended by the prosecution in this case is 10-12 years. To see whether this starting point is appropriate, I will turn to comparable New Zealand cases for guidance as motor manslaughter is still a new offence in Samoa having being just introduced under the Crimes Act 2013.
12. In Gacitua v R [2013] NZCA 234, paras [34] – [38], the New Zealand Court of Appeal upheld a starting point of 5 years for sentence adopted by the sentencing Judge and said:
    • “[34] Sentencing in manslaughter cases has generally involved more aggravating features, invariably including the consumption of alcohol as in R v Prince HC Wanganui CRI-2011-083-1775, 5 December 2011, and R v Vanstone HC Hamilton CRI-2010-068-603, 19 April 2011 relied on by Mr Mansfield. They provide guidance to the existing sentencing range for the more serious offending to which the Road Transport Act could now apply.
    • [35] In R v Barclay HC Nelson CRI-2006-042-4085, 31 May 2007 Mr Barclay drove at 40 – 50 kilometres per hour over the speed limit, lost control of his vehicle, crossed the median line and collided with an oncoming car. One occupant was killed and another seriously injured. Simon France J assessed the driving as in the mid-range of offending of this type, taking into account that the duration of the bad driving was less than often encountered. He adopted a starting point of five and a half to six years.
    • [36] In R v Hoskins HC Wanganui CRI-2010-083-2713, 9 May 2011 Mr Hoskins drove whilst under the influence of alcohol. He drove erratically and at a speed, ignoring an associate’s warning to go slower. He lost control while driving at between 84 and 104 kilometres per hour in a 70 kilometre per hour zone. A pedestrian and her dog were killed. Mr Hoskins then left the scene. Miller J adopted a starting point of five and a half year imprisonment although he said that he would have adopted a starting point up to 18 months higher were it not for the fact that Mr Hoskins suffered from severe dyslexia.
    • [37] In R v Te Maari HC Nelson CRI-2011-042-1451, 22 June 2011 Mr Te Maari drove while disqualified and on bail for driving while disqualified. He had consumed alcohol and was in excess of the legal limit. He drove at an excessive speed in a 50 kilometre per hour zone, attempting a manoeuvre called ‘drifting’. His vehicle slid into the path of an oncoming car, killing the front seat passenger in his car and causing the passenger in the oncoming vehicle serious injuries. A starting point of seven years and six months imprisonment was adopted by Gendall J.
    • [38] We have also considered other manslaughter cases in which alcohol was an aggravating factor which indicate a starting point of between six years and six months and cases in which two deaths ensued in which starting points of 8 years and 8 months were adopted.”
13. In R v Pora [2015] NZHC 1104, the Court was concerned, inter alia, with a charge of motor manslaughter. Duffy J took a starting point of 7 years for that charge and goes on to say at paras [20] – [26]:

“[20] Here, both the Crown and the defendant rely on R v McGrath [2014] NZHC 1583. In that case, Mander J adopted a seven year starting point, with reference to Gacitua v R. The offender was travelling at 100 kilometres per hour in a limited speed zone when he passed a police patrol car. The police car followed the offender with its sirens on, and the offender accelerated, reaching a speed of 142 kilometres per hour. He lost control of the vehicle at a left hand curve: the vehicle slid into the oncoming lane, crossed the grass verge, travelled through the air and crashed into a residential dwelling. The force of the impact destroyed the front of the house. One of the passengers of the vehicle died, and the other suffered extensive rib and spine injuries. The offender was also seriously injured. His blood alcohol levels were estimated to be between 130 and 160 milligrams per 100 millilitres of blood at the time of the crash. The offender pleaded guilty to manslaughter, dangerous driving causing injury, and driving with excess blood alcohol.

[21] Mander J uplifted the starting point by five months, due to two previous convictions for driving with excess breach alcohol. A nine month deduction was given to take into account the fact that offender was a 29 year-old sickness beneficiary, had suffered significant injuries as a result of the crash, had accepted full responsibility for the victim’s death, participated in a restorative justice conference, and appeared genuinely remorseful. The full 25 per cent discount was given for the early guilty plea, and a minimum period of imprisonment of two years was imposed.

[22] The Crown also relies on R v Mika [2013] NZHC 2357. In that case, the offender was sentenced for one charge of manslaughter, one charge of being an unlicensed driver failed to comply with the prohibition, one charge of failing to stop when followed by red/blue flashing lights, and one charge of failing to stop to ascertain injury or death after a crash. The offender was observed speeding by police, who activated their lights and siren. The offender accelerated, reaching speeds of 90 kilometres per hour in a 50 kilometre per hour zone, where some sections of the road had been further reduced to 30 kilometre per hour. The offender reached speeds over 100 kilometres per hour. He lost control of the car at a section of road-works, hit the road barriers, causing the vehicle to roll. He then ran from the scene. One of the passengers of the car was killed. The offender was affected by drugs and alcohol at the time of the crash and had ignored the passengers’ pleas to slow down. He had previously been convicted of driving while forbidden or disqualified 11 times, careless driving, reckless driving and refusing an officer’s request for a blood specimen.

[23] The Judge adopted a starting point of eight years imprisonment, and uplifted this by one year to reflect the offender’s previous convictions. The Judge gave a 20 per cent discount for the offender’s guilty plea and a further five per cent to reflect remorse and the offender’s background, resulting in an end sentence of six years, nine months imprisonment.

[24] In Ormsby v R [2003] NZCA 578, the Court of Appeal dismissed an appeal against a sentence of four years, two months imprisonment. The starting point adopted in the High Court was six years, six months imprisonment. The offender was 18 years old, drove at high speed over some distance and ignored the requests of his passengers asking him to slow down. The car crashed and the victim was thrown from the car and died. The offender’s blood alcohol level was 117 milligrams per 100 millilitres of blood. The Court of Appeal held that the High Court had correctly identified the aggravating features of the offending as: alcohol, excessive speed, ignoring repeated warnings from passengers, poor and aggressive driving, and the fact that the offender had been stopped by police and prohibited from driving nine days earlier. A total discount of 36 per cent for an early guilty plea and the offender’s remorse was also considered within the range.

[25] Finally, R v Murcott [2014] NZHC 971 is also comparable. In that case, the offender had pleaded guilty to two charges of driving with excess breath alcohol, two charges of reckless driving causing injury, one charge of failing to stop or ascertain injury or death after an accident, and one charge of manslaughter. The offender accelerated on a gravel road, performing a skid while driving up a hill, he then turned and sped back down the road through the dust and accelerated to a speed estimated to be between 90 kilometres per hour and 110 kilometres per hour. The offender then applied the hand-brake to send the car into a slide. He lost control of the car, which drifted off the road before striking a small fence and slamming sideways into a large tree. The offender ran off, asking one of the passengers, who ran to get help, to take the rap. He did not check on the other two occupants of the car. One of these passengers was pulled by the other remaining passenger from the car, but died before the emergency services reached the car. It was estimated that the offender’s blood alcohol level at the time of the crash was 190 milligrams per 100 millilitres of blood.

[26] The Judge identified the relevant factors as alcohol consumption, excessive speed, disregard of warnings, driving in breach of licence conditions, and serious injury to other passengers. The Judge adopted a starting point of six years imprisonment and uplifted this by six months to reflect the fact that the offender had fled the scene of the crash. A discount of 35 per cent was given for the offender’s youth, good character, and remorse.”

14. In R v Guest [2013] NZHC 2432, one of the cases of motor manslaughter cited by counsel for the prosecution, the accused was driving at excessive speed despite being told by passengers to go slow. When the car travelled around an ‘S’ bend corner, the accused lost control and the car crashed. It struck a large tree, entered a drain, hit a concrete culvert pipe, and ended up on its roof. One passenger died on the scene and the other four passengers and the driver sustained significant injuries. Venning J took a starting point of 8 years and 9 months.

This case

15. Having considered the above New Zealand authorities and the aggravating features of consumption of alcohol, excessive speed, and bad driving relating to the present offending, I am of the opinion that 5½ years is the appropriate starting point for sentence for this case. This is the same starting point adopted in the cases of R v Barclay HC Nelson CRI-2006-042-4085, 31 May 2007 and R v Hoskins HC Wanganui CRI-2010-083-2713, 9 May 2011 referred to in Gacitua v R [2013] NZCA 234, paras [35] and [36].
16. From the starting point of 5½ years, I will deduct 6 months for the accused’s good driving record and previous good character. That leaves 5 years. I will then deduct 9 months for the ifoga to the family of the victim which was accepted. That leaves 4 years and 3 months. I will deduct another 10 months or 20% for the guilty plea. That leaves 3 years and 5 months.

Result

17. The accused is convicted and sentenced to 3 years and 5 months imprisonment. He is also disqualified from holding or obtaining a drivers licence for 3 years.
18. Finally, I wish to thank counsel for the prosecution for his extensive citation of overseas authorities in this new area of Samoa’s criminal law.

CHIEF JUSTICE