IN THE SUPREME COURT OF SAMOA
Police v Aiono [2024] WSSC 64 (08 July 2024)

Case name: 	Police v Aiono	
		
Citation: 	[2024] WSSC 64	
		
Decision date: 	08 July 2024	
		
Parties: 	POLICE (Informant) v FATU MANINO AIONO, male of Fasitoo-uta (Defendant)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Supreme Court – CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Senior Justice Nelson	
		
On appeal from:		
		
Order:	On the charge of negligent driving causing death of these two victims the defendant will be convicted and sentenced to 4 years in prison. Remand in custody time to be deducted. 

On the charge of unlicensed driving your driving license is suspended forthwith and is not to be reinstated until you pass an approved Defensive Driving Course hosted by the Land Transport Authority for drivers of buses and heavy vehicles. 

In relation to the issue of a Coronial Ruling, the Coroners Inquest into this accident continues as there are certain issues of concern that the court needs to address. A Ruling will issue in due course.	
		
Representation: 	F. Lagaaia for prosecution 
S. Chan Chui for the defendant	
		
Catchwords: 	Negligent driving causing death – driving without a valid license (bus driver).	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Police v Alefaio [2024] WSSC 25;
Police v Talamoni [2022] WSSC 45;
Police v Vaafusuaga [2023] WSSC 41;
Police v Vaamainuu [2022] WSSC 31.	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

FATU MANINO AIONO, male of Fasitoo-uta.

Defendant

Counsel:	F. Lagaaia for prosecution 
		S. Chan Chui for the defendant 

Sentence:	08 July 2024

SENTENCE
1. 	The defendant has pleaded guilty to two charges: one of negligent driving causing death and one of driving without a valid and current license as a bus driver. The agreed summary of facts says: 
	“The defendant is a 27 year old male of Fasitoo-Uta. He is single and works as a mechanic and also a bus driver for Andy Ah Far bus company at Fasitoo. 
	The deceased Miriama Gaia aka Miriama Tulaimalo was a 40 year old female of Nofoalii.  She had six (6) children and at the time of her death was pregnant carrying her 9 months old baby of about 38 weeks.
	On Friday 07 May 2021 at around 8pm, the deceased and her sister in law Lei Tulaimalo went to play Bingo at Faleasiu. The defendant was the substitute driver for bus M/O525 responsible for picking up people for the Bingo and dropping them home after Bingo.
	After picking up the Bingo ladies, the defendant parked his bus across the road from the Bingo house at Faleasiu to wait for the end of the Bingo game. The bus was facing the Faleolo direction. Whilst waiting he was drinking a few bottles of Taula beer with some youths from Faleasiu. The Bingo game finished at around 11pm and passengers started to board the bus.
	The deceased at this time was walking on the other side of the road with her sister in law Lei to catch a ride with another lady Koneferenisi from Nofoalii in front of the shop nearby.
	The defendant started the bus and was about to drive towards Faleolo to drop off passengers from Faleasiu and Fasitoo area. However other Bingo ladies from Tufulele called out to the defendant to drop them first. As such the defendant made a u-turn in front of Isaraelu Sione Fenuuti’s mechanic shop located on the seaside of the road not far from the Bingo house. 
	Whilst turning into the drive way of that mechanic shop the defendant lost control of the bus and it went downwards crashing into cars parked in front of the mechanic shop. The defendant saw Helen who is the daughter of the owner of the mechanic shop approaching the bus. She came up to him on the driver’s side and told him to stop the bus so they can talk regarding the damages to their properties.  The defendant was in panic at the time. There were other bystanders approaching the bus with rocks. As such, he quickly reversed the bus in order to escape the scene.
	Whilst reversing out to the main road, the passengers inside the bus called out to the defendant to stop the bus. At the same time, someone or bystanders were throwing stones towards the bus whilst the bus was leaving the scene. The defendant did not reverse the bus directly to the main road but instead he reversed across the front of the shop and into a vacant neighbouring land clearing down trees in front of the road. The deceased at this time was walking towards the shop with her sister in law Lei and Koneferenisi to catch their ride. 
	The deceased and Koneferenisi saw that the bus was reversing directly towards them. They tried to escape but the deceased tripped over rocks. She fell down and was too late to escape the reversing bus. According to Koneferenisi she managed to jump away but left the deceased on the ground. The deceased was unable to move in time.  As such, the bus reversed onto her and ran over her lower body.
	The defendant then drove off with passengers leaving the scene.  The injured deceased was quickly found by bystanders and taken to Leulumoega Hospital. The deceased was treated at Leulumoega by the attending nurses but later transferred from Leulumoega to Motootua Hospital by ambulance. She died on the way.
	The staff at Motootua Hospital Emergency Unit tried to resuscitate the deceased upon arrival but were unsuccessful.  The staff also found no pulse or movement from the deceased baby inside her stomach. 
	On examination by Pauli Dr. A Pai Enosa who was on duty that night he noted that the deceased had a distended abdomen secondary to 38 weeks of pregnancy.  She had abrasions on her buttock and legs and her right labia was swollen.  X-ray was also carried out that night and confirmed that her pelvis was fractured.  A post-mortem report was recommended by Dr. Enosa.
	On the 12th May 2021, the post mortem examination of the deceased body was conducted by a group of Chinese Pathologists at Motootua Mortuary in the presence of Police officers. In summary the autopsy findings confirmed severe internal injuries including separation of pubic symphysis and bilateral pubis fractures, decollement in the right leg resulting from the traffic accident.  There was also massive bleeding in the pelvic cavity.
	The autopsy report confirmed that the deceased died from hemorrhagic shock and the fetus died of intrauterine distress.
	After the incident that night, the defendant went straight to his employers house at Fasitoo-uta and reported the incident.  It was there that the employer arranged for him to be taken to Faleolo Police station for investigation. The defendant attended to Faleolo Police Post that night where he was investigated and released. The defendant underwent a sobriety test using the Breathalyzer machine at Faleolo Police Post and he had a recorded alcohol level of 33 micrograms in his breath. 
	On the 11th May 2021, the defendant was brought to Fagalii-uta Traffic division where he was re-interviewed and charged accordingly for negligent driving causing death and for driving a bus M/O525 without a license. 
	The defendant confirmed that he was the driver of the bus and that he knowingly drove the bus without a license.  He also confirmed to the Police that he has been a bus driver for more than four (4) years.”  
2. 	The law concerning negligent driving causing death in this jurisdiction is very settled and was recently applied in Police v Vaamainuu [2022] WSSC 31 and Police v Alefaio [2024] WSSC 25. Accidents generally fall into two categories: those caused by momentary inattention or error of judgment which are at the lower end of the negligence scale; and those caused by driving in a manner which shows a selfish disregard for the safety of others or driving with a high degree of recklessness. This lies at the higher end of the negligence scale. 
3. 	In the case of this defendant he did not even have a license to drive a bus even though he says he has been driving buses for four (4) years. Therefore he should never have been driving M/O525 on the night in question, especially after drinking alcohol. This defendant’s case clearly lies in the second more serious category of negligence. 
4. 	The court has stated before and will say it again and continue to say it however many more times it is necessary - “if you drink, don’t drive, if you drive, don’t drink”. And if you have no license to drive a particular vehicle there is no excuse for you touching the vehicle unless there is some dire emergency situation. Which was not the case here. 
5. 	It is not open to the defendant to argue that a dire emergency was created because of stones being thrown at him or at his bus because it was him who created the problem in the first place; his action of getting behind the wheel and driving the bus without a bus license and then crashing into parked vehicles in the drive way of the mechanic shop. 
6. 	I do not accept the defendant’s statement to the Probation Office that the bus brakes suddenly failed. And that resulted in the deceased being run over by his bus. Because there is no evidence this was a problem in that bus previously that day or that evening. The defendant had been riding in the bus most of the day according to the regular bus driver. Defendant is also the engineer of the company who looks after the maintenance of the bus fleet including this bus. If there was any problem with M/O525 he would have been well aware of it. 
7. 	Defence counsel has also argued that the defendants speed does not amount to negligence. His speed in reversing the bus and running over of the deceased. The case of Police v Talamoni [2022] WSSC 45 is cited in his argument. The first thing to note is Talamoni is a decision restricted to its own special and peculiar facts in my respectful opinion.  It is not to be taken as establishing any approach or principle of general application. Furthermore while it is true speed does not necessarily equate to negligence, the prosecution’s case here is not that the defendant reversed at speed and was therefore negligent. Prosecution case is the defendant failed to keep a proper look out when he was reversing at speed.  And this is particularly important when the maneuver is being done at night and in a large vehicle carrying passengers. 
8. 	The consequences of the defendant’s actions have indeed been tragic and doubly so because a 9 month fully formed baby also lost its life. I treat this case as one where there has not been one victim but in fact two. Because the defendants actions have meant that baby never got to see the light of day. 
9. 	There is no question the level of criminality in the offending and the seriousness of its consequences requires an imprisonment penalty be imposed on you Fatu. To denounce the defendants behaviour and to hold him accountable for his actions. And to send the necessary messages to him and all others who may be thinking of driving without valid licenses. Or driving after consuming alcohol. 
10. 	I accept the defendant’s level of sobriety was 33 micrograms which is under the legal limit of 40 micrograms but that test was administered at the Faleolo Police Post some hours post-accident. It is reasonable to infer that his level of intoxication would have been considerably higher when the accident actually occurred hours earlier. This is consistent with the evidence that he was drinking firstly with a friend at Fasitoo-uta according to his Pre-Sentence Report. And then with some friends while waiting for the bingo to finish as per paragraph 5 of the agreed Summary of Facts. 
11. 	Parliament has increased the maximum penalty for negligent driving causing death from 5 years to 10 years and from $5,000 to $25,000, echoing the courts concern about this kind of offending. With the staggering and seemingly unchecked increase in the number of vehicles being imported into a small island nation with such limited space the probability and possibility of accidents is growing exponentially. Prosecutions for motor vehicle accidents particularly those causing death are growing in number and intensity as traffic numbers increase. It may well be time for Parliament to seriously consider limiting the unrestricted flow of vehicles into the country. Consideration should also be given to the adverse impact and environmental damage that results from disused and rusting wrecks, car parts and written off vehicles lying about.  Something the various administrations of this country constantly claim to be genuinely and sincerely concerned about. 
12. 	But for your case Fatu the maximum penalty for negligent driving causing death is 10 years in prison. Considering all the factors the prosecution are seeking a start point of 4½ years in prison.  In Police v Vaafusuaga [2023] WSSC 41 a case where a defendant was clearly intoxicated and road racing on the streets in Apia the court used a 6 years start point. This case in my view lies somewhere in between so sentence should start around 5 years in prison. Upgraded by 6 months to reflect the fact there were two victims in this matter. 
13. 	From that 5½ year start point as your counsel has correctly pointed out you are entitled to certain deductions Aiono. Firstly for your first offender status, your good background, your good character references attached to your pre-sentence report. The usual deduction of 6 months will apply. For the ifoga and reconciliation which has now been confirmed by the father of the victim who is also the grandfather of the unborn baby, again the usual deduction of 6 months will be applied. And for your guilty plea which was entered late after the hearing had started but you are still entitled to credit for that, a further 6 months will be deducted. Total deductions come to 18 months Leaves a sentence of 4 years. 
14. 	On the charge of negligent driving causing death of these two victims the defendant will be convicted and sentenced to 4 years in prison. Remand in custody time to be deducted. 
15. 	On the charge of unlicensed driving your driving license is suspended forthwith and is not to be reinstated until you pass an approved Defensive Driving Course hosted by the Land Transport Authority for drivers of buses and heavy vehicles. 
16. 	In relation to the issue of a Coronial Ruling, the Coroners Inquest into this accident continues as there are certain issues of concern that the court needs to address. A Ruling will issue in due course.
SENIOR JUSTICE NELSON