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Police v Tausagi [2017] WSSC 18 (30 March 2017)

IN THE SUPREME COURT OF SAMOA
Police v Tausagi [2017] WSSC 18

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

FAASAOMOTAEAO TAUSAGI, male of Falelatai & Fusi, Safata
Defendant

Counsel:
F Ioane for Prosecution
C Vaai for the Defendant

Sentence: 30 March 2017

SENTENCING OF TUATAGALOA J

The charges:

1. The accused appears for sentence on the following charges:
   • Manslaughter pursuant to ss. 88 & 102 of the Crimes Act 2013 which s.110 provides for the penalty of life imprisonment;
   • Negligent driving causing injury pursuant to s. 39 of the Road Traffic Ordinance 1960 which penalty is maximum monetary fine of $1000 or maximum two years’ imprisonment or disqualification under s. 39(3); and
   • Having no driving licence pursuant to ss. 27(1)(a) of the Road Traffic Ordinance 1960 which s. 72A(2) provides for the penalty of maximum $200 fine or subsequent conviction to a maximum fine of $400 or maximum three months’ imprisonment.
2. Except for the manslaughter charge the charges of negligent driving causing injury and driving without a driving licence are charges which fall within the jurisdiction of the District Court. However, the Supreme Court under s. 4(c) of the Criminal Procedure Act 2016 can deal with these two charges together with the charge under its jurisdiction.

The offending:

3. On 22 December 2016 through counsel the accused disputed the summary of facts dated 13 December 2016 relating to speed, faulty brakes and where or how the accused said to have overtaken a stationary bus on the road. The matter was then adjourned to 15 March 2017 for a disputed summary of facts hearing. The prosecution filed with the court an amended summary of facts dated 14 March 2017. On 15 March 2017 prosecution asked for an in-chambers meeting. The prosecution advised that they will not be calling any evidence as to the disputed facts and conceded to amend their summary of facts dated 14 March 2017 by deleting paragraph 4 except for the last sentence relating to the number of passengers. The matter was then further adjourned to 27 March 2017 for sentencing.
4. However on 27 March 2017 the prosecution provided another amended summary of facts dated 23 March 2017 which summary of facts included paragraphs with facts that were not in the summary of facts (14 March 2017) agreed to by both counsels. The summary of facts dated 23 March 2017 with new facts is not only seen by the court as an ‘ambush’ by the prosecution and not in ‘good faith’ in relation to the in-chambers meeting they called and where the facts were agreed to by both the prosecution and counsel for the accused. This is very dangerous practice by the prosecution and the court does not tolerate it. The summary of facts to be taken by the court is the 14 March 2017 amended as the result of the in-chambers meeting.
5. The summary of facts confirmed by the accused says:
   • The accused is a bus driver of the bus with registered plate number M/O.087 which service the areas between Apia, Fausaga (Safata) and Siumu.
   • On 22 July 2016 at 4pm the accused bus headed from Apia to Siumu but made its usual stop at Lynn’s Supermarket where some of the passengers went to do shopping.
   • The accused bus was carrying 40 passengers, more than the allowed number of 34 passengers that a standard bus can carry at one time. One of the passengers was a 29 year old man named Va’a Viliamu who was seated towards the back of the bus.
   • The accused was travelling down a steep hill at Tiavi on the Cross Island Road. The accused bus came around a bend and there was another bus said to be parking on the road. The summary of facts said that the accused ‘in a defensive attempt not to rear ended’ this other bus overtook this bus while there was an oncoming vehicle. The accused in avoiding a collision with the oncoming vehicle swerved the bus away which caused it to flip over and rolled.
   • The bus was completely damaged and has been written off. Fourteen passengers were injured and one died.
   • The accused was found not to have a valid driver’s licence.

The accused:

6. The accused from the summary of facts is 37 years’ old from the villages of Falelatai and Fusi, Safata. He is married with three children.
7. The pre-sentence report (PSR) by the probation gives the accused personal background - education, employment and family background.
8. As shown from the PSR the accused reached Year 12 at Vaimauga College. He did work at his father’s plantation when he left school and did odd jobs. The PSR then says that the accused started working as a bus driver for Queen Patsy’s Transportation in 2014 whereby he earned $350 weekly. The impression is that the accused started working as a bus driver then. This is not true, because the accused has a long list of previous convictions of traffic offences dating back to 2002 which list of offending includes a lot of “overloading” offending relating to bus drivers.
9. The accused confirms with the Court that he started as a bus driver in 2002 but started working for Queen Patsy Transportation in 2014 which company owns the bus he drove on the day of the accident.
10. According to the accused (as in PSR) he was driving behind another bus at Tiavi when the bus in front stopped without signing. He steered his bus away from hitting or crashing in to the other bus by overtaking not knowing there was a car coming the opposite direction. His sudden steering of the bus away from the oncoming vehicle caused the bus to overturn and rolled.
11. There are written testimonials from the accused faifeau of the Methodist Church who says that the accused and his family attend church. The pulenuu (village mayor) of Fusi, Safata speaks of the accused always contributing to village projects and that the village has never penalized the accused. The employers of the accused also provided a written testimonial where they speak of the accused as one of their trusted employees especially as he has been a bus driver for a long time before he started working for them. They said of the accused being a hard worker and that sometimes the accused stays with their (employer) family at Siumu and only goes to his family at the end of the week.
12. The PSR also says that the accused with his employer did a ’ifoga’ to the deceased passenger’s family. The employer also paid for and contributed a lot to the deceased funeral. However, the deceased father in the victim impact report said that the accused employer did the ‘ifoga’ for them and the accused. The accused did not attend or participated in the ifoga. He has however forgiven the accused although he never personally apologised.
13. The accused as mentioned before has a long list of previous convictions dating back to 2002. The previous offending are all traffic offences. The accused previous traffic convictions relates to failure to produce a drivers licence, overloading (x16), dangerous driving (x3) and careless driving.

The deceased: Va’a Viliamu

14. The deceased is a 29 year old of Siumu who was one of the passengers. The summary of facts says that the accused was seated near the back of the bus. The deceased father in the victim impact report (VIR) says that the deceased was the only one in paid employment of their family so obviously the family depends on him financially. As a parent the father speaks of how sad he and his family is for the sudden loss of his son. There is nothing else provided by prosecution or in the VIR of the deceased life and what or where he was working.
15. The medical report by Dr Cecilia Bartley (dated 23/09/16) when the deceased was admitted to the hospital on the same date as the accident confirmed that the accused suffered the following:
    • Cervical spine injury (C5);
    • Mild head injury;
    • Left humerus fracture; and
    • Critical condition – poor prognosis.
16. The deceased was admitted to hospital on 23 September 2016 and died on 24 July 2016.
17. According to the Coroner’s report the deceased died from respiratory failure due to the injuries he suffered from the accident to his spinal cord (C5) and left humerus compound fracture.

The injured passengers:

18. Sixteen passengers were injured. Most of the passengers from the VIR are students. The injuries range from lacerations, factures, swellings, deep cuts and broken ribs.

The aggravating and mitigating factors:

19. The aggravating factor personal to the accused as offender is his previous convictions of traffic offending.
20. The aggravating features of the offending are:
    • There was some excessive speed while driving especially going downhill at Tiavi. Would the bus have flipped and rolled if it was not speeding?
    • The number of passengers carried whose lives were put at risk exceeded the allowed number of passengers of 34;
    • Consequence of one death and numerous injuries to other passengers;
    • No valid driver’s licence; and
    • The injuries suffered by 15 passengers which caused the death of one passenger.
21. On the other hand the only mitigating features personal to the accused are his guilty pleas to the offences. The accused will not have the full benefit of the ‘ifoga’ by his employers. The accused should have taken responsibility for his negligence and personally apologized to the family of the deceased and to the injured passengers but he did not.

Discussion:

22. This is the fourth vehicular manslaughter to be sentenced by the Court since it was introduced through the Crimes Act 2013. The three (3) vehicular manslaughter cases that have been sentenced by this Court were all of different circumstances but all resulted in deaths. The first vehicular manslaughter was Police v Iosua^[1] where the accused drove a bus into a rising ford which resulted in two deaths and a variety of injuries to the passengers. The conviction in Police v Iosua was appealed. The Court of Appeal said that the 12 years starting point with end sentence of 11 years was too high and their view was that eight years and six months was appropriate starting point. The sentence was reduced to six years by the Court of Appeal. In Police v Tapaleao^[2] which resulted in the death of a male pedestrian, a seven year starting point with an end sentence of three years and three months’ imprisonment was imposed. In Police v Tofi^[3] there was neither alcohol involved nor any evidence of speed but also resulted in the death of a passenger. The judge noted that the accident was largely due to the accused driver’s misjudgment of the situation for turning without signaling while there was an oncoming vehicle from opposite direction. A four year starting point with an end sentence of two years’ imprisonment.
23. Their Honours in Iosua v Attorney General^[4]was referred to the English Sentencing Guidelines on offences of causing death by dangerous driving to Samoan vehicular manslaughter and New Zealand authorities (see Archbold second supplement to the 2013 edition). The- English Sentencing Guidelines were adopted by Slicer J in Police v Iosua^[5] to which their honours agreed with Slicer J to the following aggravating factors:
    • Involving more than one death;
    • Serious injury to others not killed;
    • Disregard of warnings; and
    • Irresponsible behaviour such as failing to stop.
24. The aggravating factors above is not an exhaustive list of aggravating factors for vehicular manslaughter as each case will have features that are aggravating particular to that case.
25. The standard of care required of a bus driver or operators of public transport is higher because of the number of lives of members of the public whom they are responsible for when they carry them. Their Honours in Iosua v Attorney General^[6] say at paragraph [21]:

“In that situation there is a unique obligation to safeguard others. And if an obligation of that kind is not observed, it is immaterial whether the failure occurs while driving along a road or in some other setting.”

26. Their Honours then at [22] said that the level of culpability of the accused is to be considered in that context as well as the consequences.
27. The Prosecution cited cases from New Zealand of vehicular manslaughter in which custodial sentences were imposed: R v Skerrett^[7] (end sentence of 18 months’ imprisonment); R v Grey^[8] (nine years’ reduced to 8- ½ years); R v Marsh^[9] (seven years’ imprisonment); R v McKelvey^[10] (nine years reduced to eight years for manslaughter and four years for injuring); and Gacitua v R^[11] (five years reduced to three years).
28. The prosecution seeks a starting point of 3 years. Counsel for the accused seeks for lesser penalties pursuant to sections 112 and 113 of the Criminal Procedure Act 1972. Counsel for the accused submits for 12 months imprisonment. The Criminal Procedure Act 1972 to which counsel refers to has been superseded by the Criminal Procedure Act 2016 and sentences are now governed by the Sentencing Act 2016.
29. The obvious penalty will be custodial. The length of a custodial sentence would depend on the level of culpability and the consequences of the accident.
30. The road going to Siumu from Tiavi is all downhill and of single lanes and there will always be vehicles travelling this road between 4.00pm-6.00pm coming to Apia.
31. In the present case there was speed and dangerous driving in that the accused was going downhill and should have taken extra care or reduced downhill speed when going around the bend. If it had reduced speed going around the bend it would have either able to stop when coming across a stationary bus or would have been able to swerve and stop and not flipped and rolled over when it overtook the stationary bus and swerved to avoid an oncoming vehicle.
32. The accused previous convictions of traffic offences suggest a negligible person. His long list of ‘overcrowding’ (x14) offences; failure to provide a driver’s licence and dangerous driving (x3) shows that he has no regard for the lives he carries. His previous record shows that he was 21 years’ old when he first had a traffic offence in 2002. He has traffic offending in 2003, 2004, then 2013 and 2014.
33. The accused traffic offending has now culminated to an accident which resulted in injuries and death. One would seem to predict that an accident of this magnitude would happen given the long list of traffic offending by the accused.
34. I agree with their Honours in Iosua v Attorney General at paragraph [25] above that the standard of care for bus drivers as opposed to other drivers is very high because of the number of lives they carry. In light of the circumstances of this case I find that the level of culpability of the accused is very high.
35. Too many lives have been lost and many people have been injured because of the negligence of bus drivers. The Land Transport Authority should look at stringent measures to be imposed upon bus owners and bus drivers when issuing driving licence and warrant of fitness for buses.
36. I adopt five years as the appropriate starting point and uplift to six years with his long list of traffic offending which is an aggravating factor personal to the offender. The only mitigating factors were the ifoga and the accused early guilty pleas. The accused will not get full credit for the ifoga as he did not personally attend but his employer carried out the ifoga to include him. ‘Ifoga’ means a lot to the Samoan culture where much harm or wrong has been done. The person who had done wrong in carrying out an ifoga shows humility for what they had done and asks for forgiveness. It is also a sign of acceptance or taking responsibility for their actions. In that sense the accused should have personally done a ‘ifoga’ to the deceased’s family. I will only give three months’ credit for the ‘ifoga’ performed by the accused employer to include the accused. This leaves six years and nine months. I will however give 25% discount which is 17 months for the accused early guilty pleas. The end sentence is 4 years and 3 months imprisonment.
37. In respect of the charge of negligent driving causing injury to 14 passengers, the injuries from the victim impact reports vary from bruises to cuts/lacerations, swellings and broken bones. The accused, except for one injured passenger he apologised to, did not apologise to the rest of the victims. A two year imprisonment term is appropriate.
38. For the offence of driving without a valid driving licence the accused is convicted and sentenced to three months’ imprisonment. The accused is also disqualified for 8 years from holding or obtaining a driving licence for buses.
39. The sentences are all to be concurrent.
    

JUSTICE TUATAGALOA

^[1] Police v Iosua (Unreported, Supreme Court of Samoa, Slicer J, 20 November 2013)[2] Police v Tapaleao [2014] WSSC 38 (04 August 2014)
^[3] Police v Tofi [2014] WSS (25 t 2014)
^{[4] [2014] WSCA 5 (2 May 2014)
[5] Police v Iosua (Unreported, Supreme Court of Samoa, Slicer J, 20 Nove2013)
[6] Iosua v Attorney General [2014] WSCA 5 (02 May 2014)
[7]} (Court of Appeal CA236/86, 09 DecemDecember 1ber 1986)
[8] R v Grey (1992) 8 CRNZ 523 (CA)
^[9] R v Marsh (Court of Appeal CA59/90, 28 June 1990)
^[10] R v McKelvey CA372/97
^[11] Gacitua v R [2013] NZCA 234