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Police v Oloialii [2024] WSSC 100 (13 November 2024)

IN THE SUPREME COURT OF SAMOA
Police v Oloialii [2024] WSSC 100 (13 November 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

UPUIA OLOIALII male of Tufulele and Lepā.
Accused

Counsel J Leung Wai and H Apisaloma for Prosecution

S C Vaai for Accused

Sentence 7^th and 31^st October 2024
Decision 13^th November 2024

RESERVED SENTENCE

The Charge

1. Upuia, you appear for sentence on one charge of negligent driving causing death, two charges of negligent driving causing injury and one of driving without a valid driver’s license.

The Offending

2. According to the Summary of Facts dated 17^th September 2024 accepted by you through your lawyer, on the 13^th November 2022, you had been watching the rugby league semi-finals on TV between Toa Samoa and England. At about 5.00am after the match when people began to leave, your father-in-law Mavaega Alesio who had been watching the game with you and others stood up to leave but fell forward and became unconscious. You and others tried to help him. It was decided to take Mavaega to Leulumoega Hospital. You agreed to drive your Nissan Note.
3. Your mother-in-law and Mavaega’s wife (the second victim) sat in the front seat. Your mother-in-law’s brother (the first victim) sat in the back seat with Mavaega in the middle and another relative named Benjamin. Your mother-in-law’s cousin (the third victim) occupied “the back seat” of the car.
4. Due to the “urgency” of Mavaega’s condition, you drove at “excessive speed” heading towards Leulumoega Hospital. You lost control while heading down a hill on the Tufulele access road, swerving as you attempted to regain control and drove into a ditch causing the car to flip on to its side. As a result of the accident:
   • (a) the first victim identified as Nila Siu was killed. The report of Dr Nolan Fuamatu identified the cause of death as likely traumatic brain injury.
   • (b) your mother-in-law (the second victim) sustained bruising and swelling to her right eye with a small laceration above the right eye lid; right temporal and cheek swelling and bruising; and a small laceration noted on her forehead; and
   • (c) the third victim sustained 1 – 2 cm laceration to his right chin and slight right eye swelling.
5. Mavaega died of acute anterior myocardial infarction, more commonly known as a heart attack. His death was unrelated to the car accident.
6. At the time of the accident, you did not hold nor had you ever held a driver’s license.

The Accused

7. You are a 27 year old male of Tulaele and Lepā. You are married with one child, though your Pre-Sentence report refers to two children. You grew up in Lepa under the care of your grandparents. You completed high school and attended the Maritime Training School in 2015. You then worked as a sailor until this incident.

The Victim

8. There are 3 victims. The first victim who was killed is your mother-in-law’s brother. He was 41 years old of Tufulele. The second victim is your 46 year old mother-in law. No victim impact report is on file for or on behalf of either victim. However, your mother-in-law in your Pre-sentence Report is reported to have confirmed the ifoga accepted and reconciliation. The third victim is 24 year old Misiona Galu. In his Victim Impact report, he says that after the accident, he was angry with you because of the accident and your speeding. He suffered no serious injuries and has forgiven you.

Aggravating and Mitigating Factors

9. The aggravating features of your offending are:
   • (a) you were unlicensed and have never held a driver’s licence;
   • (b) you were speeding; and
   • (c) there were a number of victims to your offending.
10. In terms of mitigating features, I take into account:
    • (a) your prior good character;
    • (b) the ifoga and reconciliation that has occurred;
    • (c) your genuine remorse for your offending and the village penalty paid; and
    • (d) your guilty plea.

Discussion

11. Upuia, on the morning of the 13^th November 2022, you drove the car when you had never held a driver’s license before. The risks of you driving that morning without ever holding a license is blatantly obvious, let alone to speed on an access road simply added to that serious risk of an accident. Not only did Mavaega die that morning from a heart attack, which the facts suggest occurred before the accident, you caused the death of the first victim. That death was avoidable. You then also caused injury to two others in the car.
12. Samoan courts approach sentencing for negligent driving causing death applying R v Boswell (1984). Negligent driving causing death cases can be broken down into two broad categories:
    • (a) accidents caused by 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.
13. Contrary to what your lawyer says, your case is not a category one case but falls within category two. Driving in these circumstances demonstrated a selfish disregard for the safety of your passengers as well a high degree of recklessness. You were speeding on an access road with a ditch on the side and driving whilst unlicensed, having never held a license. 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. Cases that fall within the second category attract custodial sentences unless there are very special circumstances otherwise.^[1]
14. Your counsel seeks a non-custodial sentence. Prosecution seeks a start point of 2 years imprisonment.
15. Upuia, a non-custodial sentence is not appropriate. Your case is not a category 1 case. If you have never held a license, perceived emergency or not, you should not be driving a car on the road. Your case demonstrates the very reason why that is the case. Instead of Mavaega being the only person that died that morning, you killed the first victim and injured two others.
16. This case is the second case of negligent driving causing death I have dealt with in as many weeks involving drivers driving cars without ever having held a driver’s license. In Police v Perive Salesa (05 November 2024, Unreported) involving an accident earlier this year, there too, a young man drove a car whilst never having held a driver’s license and fell asleep at the wheel. One person was killed and one suffered minor injuries. A 2 ½ year sentence start point was adopted. That case was less serious than your case. Of the category 2 authorities referred to by prosecution, relevant is Police v Nauer [2023] WSSC 55 (24 August 2023) where a 5 year start point was adopted involving a driver not licensed to drive a 10 wheeler truck. While there are more aggravating features to that offending including the vehicle being unregistered and the nature of the vehicle itself and the load making it more dangerous, that the driver did not hold the prescribed license was a serious aggravating factor. Relevant too is Police v Alefaio [2024] WSSC 25 (15 April 2024), however, that driver was licensed.
17. Driver’s driving on the road without ever having held a driver’s license represent a serious and obvious risk to others. In this case, despite having never had a driver’s license, you owned the car and drove it at excessive speed. As I said in Perive Salesa’s case, 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. In sentencing you, it is to denounce your conduct and to deter others from committing the same or similar such offending. The two-year sentence start point submitted by prosecution is inadequate in light of the sentencing authorities and the circumstances of this case.
18. The appropriate start point on a totality basis is 3 years imprisonment. From this start point, I deduct 8 months for your prior good character, remorse and the village penalty paid; 6 months for the ifoga and reconciliation that has occurred; and from the balance, 4 months for your guilty plea leaving an end sentence of 1 year 6 months imprisonment.

The penalty

19. You are accordingly convicted and sentenced as follows less, remand in custody:
    • (a) negligent driving causing death, 1 year 6 months imprisonment;
    • (b) both charges of negligent driving causing injury, 7 months imprisonment each charge, both concurrent to negligent driving causing death; and
    • (c) unlicensed driving, convicted and discharged. This has been factored into the negligent driving causing death sentence.
20. Pursuant to section 39A(3)(b) of the Road Traffic Ordinance 1960, you are also disqualified from holding or obtaining a driver’s license for a period of 3 years from today. You are not to be issued a driver’s license until you have passed the prescribed test of competence to drive any class or classes of vehicles you seek.

Coronial Finding

21. As this Court also sits as a Coroners Court, I issue the Coronial Finding to certify that Sila Si’u, a 41 year old male of Tufulele died on the Tufulele Access Road on the morning of 13^th November 2022 as a result of traumatic brain injury secondary to a motor vehicle accident. I further confirm that the driver of the vehicle involved has been dealt with according to the law.

JUSTICE CLARKE

^[1] Seuoti v Police [2006] WSSC 48 (1 September 2006).