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Police v Kuresa [2025] WSSC 44 (12 June 2025)

IN THE SUPREME COURT OF SAMOA
Police v Kuresa [2025] WSSC 44 (12 June 2025)

THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

ALESANA KURESA, male of Siumu

Defendant

Counsel: S Natia for Prosecution
T Leavai for the Defendant

Sentence: 12 June 2025

SENTENCE OF JUSTICE TUATAGALOA

The charges

1. The defendant appears for sentence on the following charge:
   • Negligent driving causing death pursuant to section 39A (3) of the Road Traffic Ordinance 1960 with a maximum penalty of 10 years’ imprisonment or to a maximum fine of $25,000 and disqualification for minimum one year under s. 39A(3)(b);

The offending

2. The summary of facts as amended by the prosecution says the following:
   • On 17 March 2023 the defendant was driving a Toyota Hilux pickup truck heading west from Siumu toward Mulivai. At the time, students from Mulivai Primary School were heading home. The victim, walking along the roadside, tried to cross the road and was hit by the defendant’s vehicle on the left side. She collapsed next to the roadside and remained motionless. The defendant stopped his vehicle and said to have gotten out but upon seeing a man running towards the scene he drove away.
   • The victim was rushed to Poutasi District Hospital and was later transferred to Moto’otua Hospital where she remained in a coma for three (3) days. On 21 March 2025, life support was removed, and she was pronounced dead.

The cause of death

3. A post – mortem was carried out which confirmed the initial findings of the attending doctor as to the cause of death to be severe traumatic head injuries caused by a significant impact.

The defendant

4. The defendant is 61 years old, married with seven (7) children from the village of Siumu. He was employed as a driver earning a salary of $250 per week. The defendant says in his pre-sentence report that he has been driving for more than forty years. At the time of the accident was holding a valid driver’s license.
5. Alesana's character is strongly affirmed through multiple testimonials. His wife provides verbal testimony, describing him as a reliable, hardworking, and respectful person. In addition, his employer, who has employed Alesana for approximately ten years, submits a written testimonial confirming his reliability and honesty. His family chief (sa’o) highlights Alesana’s dedication to his extended family, emphasizing his service (tautua). Finally, the village mayor acknowledges his contributions to the village, further reinforcing his reputation for service."
6. Alesana’s family chief says that an ifoga has been carried out by their family to the victim’s family which was accepted. The ifoga is confirmed by the victim’s mother in the Victim Impact Report. As a result, twenty fine mats together with $3000 was handed over by the defendant’s family to help out with the victim’s funeral.
7. The defendant has no previous convictions and is a first offender.

The deceased

8. The deceased was six years old and had lived with her mother and four siblings at Mulivai, Safata. She attended Mulivai Primary School at the time of the accident.
9. The Victim Impact Report^[1] (VIR) conveys profound grief and loss, highlighting the emotional devastation experienced by the mother following the loss of a young child.

The aggravating and mitigating factors

10. The aggravating factors of the offending are speeding and loss of life.
11. The mitigating factors in favour of the defendant are his early guilty plea, ifoga, the fact that he reported the matter to police at the Poutasi Police Post on the same day and his prior good character or first offender status.

The prosecutions and defence submissions

12. The prosecution submits that the offending falls within category two of Seuoti where a custodial sentence is appropriate. They submit that the excessive speed, failure to apply brakes and fleeing the scene without rendering assistance to the young victim elevates this offence beyond mere momentary inattention of medium culpability level. The prosecution submits appropriate a starting point of two to three years’ imprisonment.
13. Defence Counsel argued that the defendant slowed down upon noticing a group of children walking along the roadside. As the defendant’s vehicle approached, the young deceased attempted to cross the road. Defence Counsel, referencing various court decisions, recommended a non-custodial sentence, asserting that the defendant’s actions amounted to an error in judgment. Specifically, they contended that the defendant should have braked or stop immediately instead of swerving to avoid the deceased.

Discussion

14. The approach to sentencing in cases of this nature generally fall into two categories established in Seuoti v Police [2006] WSSC 48 (1 September 2006).^[2] Despite changes in the maximum imprisonment term since 2020 the two sentencing categories from Seuoti case remain useful guidelines in similar cases.^[3] Courts continue to follow these categories unless there are strong reasons to apply a different approach:
    • (i) Minor negligence – Accidents caused by momentary inattention fall at the lower end of the negligence scale and usually result in non-custodial sentences.
    • (ii) Serious negligence - Accidents caused by reckless driving or a selfish disregard for others fall on the higher end of the scale. These typically lead to prison sentences unless there are exceptional circumstances.
15. Defence Counsel is arguing that the defendant’s actions were a misjudgement rather than reckless or intentional negligence. In assessing errors in judgment, courts typically consider factors such as road conditions, the defendant’s speed, visibility, and reaction time. There was no issue with the road conditions and the defendant accordingly had good visibility as could see the children walking along the roadside.
16. I find that the defendant may have slowed down but was still driving at speed at the time of the accident. This inference is drawn from several key factors. First, according to the PSR, the defendant was running errands for his employer, specifically driving to a gas station at Saanapu (about 3-4 villages from Siumu) to purchase fuel for a fishing boat. Given the nature of the task, urgency could have influenced his driving speed. Second, the severity of the victim’s injuries, which ultimately led to her death, is indicative of high-speed impact. Third, if the defendant had been travelling at a slower speed, as he claimed in the PSR and submitted by his counsel, he would have had sufficient time to stop the vehicle, thereby reducing the force of the collision and mitigating the injuries sustained. If he had slowed down as he claims he would have been able to brake the car completely thereby avoiding hitting the deceased.
17. A driver has a fundamental duty of care toward all road users, including pedestrians and passengers. In this case, the Pre-Sentence Report (PSR) indicates that the defendant noticed a group of students walking along the roadside. Under such circumstances, a prudent driver would have exercised heightened caution, slowing down to anticipate any potential crossing or sudden movement. Instead, the defendant prioritized urgency over safety, rushing to return with fuel for his employer. This failure to adjust his speed in response to foreseeable risks demonstrates a clear breach of his duty of care. Given the presence of young students—who are inherently more vulnerable pedestrians—his conduct cannot be characterized as mere momentary inattention or error of judgment. Rather, it reflects a disregard for the precautions necessary to prevent harm.
18. I acknowledge that the defendant did not stop after the accident (or if he had) due to fear for his safety upon seeing villagers approaching the scene. I also accept that he genuinely regrets what transpired and is filled with remorse. Furthermore, while it is possible that the deceased suddenly crossed the road, this does not negate the fact that the defendant was driving at high speed, fully aware that young students were walking home along the roadside. His decision to maintain such speed, despite the foreseeable risk, remains a critical factor in assessing his culpability.
19. I agree with prosecution that this offending falls within category two of Seuoti and in the circumstances of this offending finds the starting point of three years as appropriate.
20. The defendant is entitled to certain deductions, as properly referenced by his counsel. The first deduction of six (6) months is granted for his clean record. An additional three (3) months is deducted in recognition of his background of service (tautua), which extends not only to his church and family but also to his village. The character references submitted to the Probation Service serve as a testament to this, leaving a remaining sentence of twenty-seven (27) months.
21. Further deductions are applied to reflect the defendant’s apology and reconciliation (faaleleiga) in this matter, as well as his monetary contribution to the deceased’s funeral (lauava). These factors have been confirmed in the pre-sentence report prepared by the Probation Service, warranting a further reduction of eight (8) months.
22. Finally, a discount of 25% is applied for the early guilty plea, amounting to a deduction of five (5) months. As a result, the final sentence is set at fourteen (14) months, or one (1) year and two (2) months.

Conclusion

23. The defendant, Alesana Kuresa is convicted and sentenced to fourteen (14) months’ imprisonment less any time in custody.
24. The defendant is also disqualified from holding or obtaining a driver’s licence for a period of eighteen (18) months.
    

JUSTICE TUATAGALOA

^[1] Victim Impact Reports play a significant role in sentencing considerations within Samoa’s legal framework. They provide judges with a deeper understanding of the emotional, financial, and social consequences of an offense, ensuring that sentencing reflects not only legal principles but also the lived experiences of victims.
^[2] See also R v Boswell (1984) 3 All ER 353