Monday, November 25, 2013

Samoa Tourist warning.


Image copied without permission off smh.com.au

I am doing this as a service to EVERY tourist that goes to Samoa.

IF you hop on one of our colorful buses and the driver is speeding. 
There is a huge possibility of an accident happening. You will die
So, please - either choose another mode of transport, ask the driver to slow down OR get OFF and start walking.

Far too many people have died in bus accidents. But on every brochure or advert about Samoa - you will be told about this exciting island experience.
 In fact, what really irked me this morning is googling about samoan buses and I came across this article, which is written by a travel writer or a travel agent or anyone like that who gets the trip free and then writes about their 'positive experience'

There's no better way to explore Samoa's big island of Savaii than on a bright green bus with yellow window frames and roof, aptly named Paradise in Heaven.
The buses are such national icons they deserve their own museum... except that the museum pieces are out on the roads carrying people around.

The bus in this article? ....is the same one that was driven onto the ford at Lago and lead to the loss of young lives this year. 

Image copied off the New Zealand Herald article 


I am writing this for tourists only, because a fa'apea o oe o se Samoa, ga e ke iloa le mea e kakau oga fai,

Pake foliga o le ave pasi.

....................................................................................................................


The driver of the bus that was washed off a ford at Lano earlier this year, killing two young girls, has been jailed for 11 years.
The sentence for Moe Iosua, of Fagae’e and Vaitele fou, was handed down by Supreme Court Justice, His Honour Pierre Slicer on Wednesday.
Iosua was represented by lawyer, Alex Sua. Leinafo Taimalelagi and Leone Sua, of the Office of the Attorney General, were the prosecutors. This is Justice Slicer’s ruling in full:
1. Moe Iosua has pleaded guilty to two crimes of manslaughter contrary to the Crimes Act 2013, sections 102 and 108.
Concurrent charges comprised in Informations S1503, S1558, S1562 and S2384 of 2013 were withdrawn and are dismissed.
Information S2191/13 states that: “the defendant... has in charge or under his control a bus which, in the absence of care, may endanger human life has omitted to perform his legal duty to take reasonable precautions against and to use reasonable care to avoid such danger and the omission caused the death of Maria Aiaraisa, female of Avao, thereby commit the crime of manslaughter."
Information S2192/13 is in identical terms except that the victim was Puataunofo Sakaio of Salei’a.
The Crimes Act 2013 section 108 provides a maximum pennitted penalty of life imprisonment for a person convicted of the crime of manslaughter.
On Saturday 6 July 2013. the defendant drove a bus travelling through a number of villages with the intended destination of Salelologa, to connect with the 2 p.m. ferry. The route included the village of Lago which has a ford permitting the crossing of a river.
The passengers included men, women and children from various villages and two tourists. Their ages ranged between 4 and 74 years. The bus was full or nearly filled with passengers.
There had been heavy rain and the river was overflowing. The bus reached the river at 1:10 p.m. The prosecution in its Summary of Facts stated that approximately ten vehicles parked on both sides of the ford. The defence claimed there were only two. The prosecution, in order to facilitate the proceedings, conceded the defence position on this point.
It is of little import. Other vehicles had stopped. Another bus travelling in the opposite direction had stopped on the other side of the ford.
Its driver believed that it was unable to cross the flooded river. The driver had discharged a  passenger and turned around. That passenger saw the defendant’s bus arriving and stood on the bank, waving and signaling the approaching vehicle to stop. The defendant ignored the warning.
The depth of the crossing was above knee level. Passengers on the defendant’s bus cautioned the driver, telling him: ‘that the bus will not make it through the river and  the lives of the people were in his hands’ saying.
“O le ola o tagata o lo’o i lou lima".
Others on the side of the river called out. ‘E le sao" — the bus will not make it.
The defendant edged the vehicle towards the water slowly, reversed, presumably to gain speed and drove into the water. The flow of water took hold of the vehicle, pushing it to the left side. As it reached the middle the bus rolled over at least two times. The passengers were trapped and thrown about inside the bus.
Some fell on top of each other and some hit various internal objects, swallowing water in the process. It was at this time that Filomena’s mother lost hold of her daughter who was swept away. The scene was one of horror.
The bus rolled for a third time removing its roof in the process allowing the passengers to escape. Some were able to swim and the elderly and children were assisted by brave passengers to stay afloat. The group drifted apart. Courageous villagers rescued them, helping them from near the seawall. Some passengers were washed into the ocean but fortunately there was a low tide which probably prevented a greater loss of life.
Mailata Tagi and Kaisarina Mailata searched for their daughter, but were unable to find her.
Police arrived quickly and rescued some of the passengers who had drifted to the Salelologa side of the river. The casualties were taken to the Malietoa Tanumafili hospital. After about thirty minutes. police were able to cross the river and assist the other survivors who were taken to the Tuasivi hospital.
The bus was removed later on the evening. At around 7 p.m. a villager found Maria’s body. On Sunday 9 July at 9 a.m. police, matais and young villagers found and recovered Filomena‘s body.
It is not appropriate to state the details of the injuries suffered by the two children.
The cause of death was drowning.
On 10 July the defendant was interviewed by police but declined to make a statement. He was originally charged with negligent driving causing injury. He was again interviewed on 25 July and again declined to answer any questions. He was then charged with the crimes of manslaughter.
He entered pleas of not guilty on 5 August but changed those pleas to ones of guilty on 21 August.
Victim Impact Statement
Maria was aged eleven at the time of her death and Filomena Puataunofo five years. Both families have been devastated.
Maria‘s family have borne monetary and psychological harm. Maria was an intelligent, happy child. She was the hope and bright jewel of her family. She was the dux of her class and excelled in her religious studies and belief.
No words can describe the effect of the death of a beloved penina, a pearl, deprived of a vibrant life and love. The last words a proud and caring mother heard from her jewel was ‘I love you mum‘; a memory which will live in her heart and mind forever.
The impact will remain with the family and those who knew and loved her.
Filomena was traveling with her mother and father. Both parents were injured.
They suffered the trauma of being present at the time of the death of their daughter. Filomena died six days before her birthday. A life of one with such a future promise of success and a happy life was taken. Her memory is constant in the mind of her father and especially in the thoughts of her mother at bedtime.
Filomena was to them a manumea (the most beautiful bird of Samoa).
Both families have suffered great anguish and ongoing psychological harm. Time might lessen the pain but the sorrow and psychological harm will remain forever.
The parents understandably seek Moe Iosua to be punished as a murderer.
The Court understands and respects their wishes. But the crime of manslaughter is different from that of murder which requires a special state of mind to bring about the death of another. Here a combination of stupidity, arrogance and reckless conduct makes up the crime. The Court will take into account that the conduct is at the high end of the crimes of manslaughter, taking into account the deaths of two children.
Ifoga and Reconciliation
There has been no ifoga by him personally or reconciliation with the defendant.
The Mika family who owns the bus has apologized and the victims have accepted that apology. Mika presented a traditional Samoan apology which has helped the hearts of the families of the victims. Any offer by the defendant has been rejected by the families.
Prosecution Submissions and Authorities
This is not a case where a person risked his own life but the lives of many who were placed in his trust. It was both a public trust and one owed to each passenger.
The prosecution suggests a commencing point of between 7 and 8 years but add aggravating matters which would warrant an actual sentence of between 10 and 12 years. In addition it seeks a licence suspension of a similar period i.e. which might be longer than that actually served if the defendant obtained parole at some stage in the future. It also seeks a permanent disqualification from his holding a public vehicle licence.
Archbold (Ed. 2013) sets out guidelines for causing death by dangerous driving. Here the Court accepts Level l as an appropriate comparison.
Level l provides for:
(i) A deliberate decision to ignore or flagrantly disregard the rules of the road; and
(ii) A disregard for the great danger caused to others.
Here the danger was, not to a few, but a large number of persons entrusted to his care.
The suggested commencing point is 8 years with a sentencing range of 7 to 14 years.
Aggravating factors stated in Archbold include:
(i) More than one death or where there is a likelihood of more deaths;
(ii) Serious injury to others not killed; (m) Disregard of warnings;
(iv) Irresponsible behaviour such as failing to stop.
In Nepa v The Attorney General [2010] WSCA 1, the Court of Appeal accepted the statement made in Whithers v R (1925) 25 SR (N SW) 382 that: “There is no offence in which the permissible degrees of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty."
In Nepa (supra) the Court stated a commencing point of l0 to l2 years for a group or unprovoked attack. The approach was affirmed by the Samoan Court of Appeal in Attorney General v Godinet and Iefata [2011] WSCA 6.
The New Zealand Court of Appeal in R v Powell [2002] 1 NZLR permitted a major departure from ordinary culpable negligence where a driver ran over and killed a person on a picket line. An earlier Court in R v Dawe (1911) 30 NZLR 679 had recognized another relevant factor for ‘departure’ where the death was a driver of a public vehicle, in that case a tram. In this case the prosecution contended that cases such as Gacitua v R [2013] NZCA 234 and R v Barclay (HC NZ 31 May 2007) ought not be regarded as comparable. lt noted that R v Guest [2013] NZHC 2432 involved a private licensed driver with five passengers which resulted in a commencing point of 8 years and 9 months reduced by two years for a first offender and a further 25% reduction for the early plea was not comparable.
In R v McKelvey CA 372/97 (25 November 1997) the Court imposed a licence disqualification indefinitely.
Australian cases such as Jurisic v R (1998) NSWSC 423 and Shipton v R [2003] TASSC 23 are also useful cases providing for factors and principles relevant to motor manslaughter cases and support the prosecution submissions.
The Court accepts the prosecution submission that the higher range of 10 to 14 years or more is appropriate, subject to mitigation.
Defence Submissions and Mitigation
The defendant aged forty-seven is married with two children. He is a first offender. The defence is that there had been a failure of judgment rather than a willful disregard for safety. It claimed that he had been a bus driver for many years and had a good history of responsible driving. He offers ifoga and says he is remorseful. Doubtless he is remorseful for the taking of the lives of two children. But manslaughter in cases such as this warrants penalty for the conduct and the death more so than the subjective characteristics of the offender. Apart from a bad traffic record, a pastor, lawyer or citizen should be considered alike.
The Court accepts the absence of intoxication and early plea but places less importance on good reputation. It does not accept as comparable the Court authorities such as R v Taualupe [2012] TOCA 8. R v Guest [2013] NZHC 2432, Gacitua (supra) and the like referred to by the defence.
Conclusion
This was not a case of a momentary lapse of judgment. The defendant could see that other vehicles had avoided the risk. This was not inadvertence or negligence.
The appropriate sentence is that of a commencing point of l2 years, reduced to 11 because of the early plea. There will be a lesser discount for the plea of guilty since the plea was but a recognition of reality and the acceptance of an overwhelming case against him. A further factor is that there will be concurrent sentences for each of the acts of manslaughter and the injuries suffered by the other passengers. The discount will be that of one year and the actual sentence that of 11 years imprisonment. While intoxication can be a relevant factor there is no tolerance for the use of alcohol by the holder of a public vehicle licence so absence of intoxication as a factor is irrelevant to this assessment of sentence. He was warned by a person outside of the vehicle not to proceed. He approached the river, reversed to pick up speed and deliberately proceeded despite the cries and warnings of his passengers.
He was not responsible just for the lives of one or two passengers as in a motor car. He was the holder of a public not a private licence. He knew that he had children and the elderly in his trust. He was not merely stupid but took a calculated course of conduct imperilling the lives of many.
The penalty of the Court will not bring back the lives of the lives of the children or lessen the grief of their families. But it seeks to provide a general deterrence to those entrusted with public safety and duty to those who are helpless passengers in a public conveyance. Here two lives were betrayed.
Disqualification
40. Archbold (2013 Ed) refers at K-l9l that: “an order disqualifying an offender is usually a mandatory requirement when sentencing for these offences. In principle the minimum period of disqualification should either equate to the length of the custodial sentence imposed or the relevant statutory minimum disqualification period, whichever, results in the longer period of disqualification."
In this case the commencing point was 12 years imprisonment. The discount was for early plea but I see no reason why the commencing point, the discount for early plea and given that the maximum penalty is that of life imprisonment, prevents me from imposing a 12 year period of disqualification.
The Road Traffic Ordinance 1960 ("The Ordinance") section 39A (negligent driving causing death) provides for a maximum penalty of 5 years imprisonment but makes no specific provision for licence suspension. The Ordinance section 33 does not specify a period of disqualification following conviction nor for any minimum or maximum penalty. Section 33 A does not assist resolution of this question. Section 33 (b) provides for such period as the Court thinks fit, and will be applied. The disqualification will continue during any parole period.
Public Vehicle Licence
The Ordinance section 33 provides for the ‘disqualification from holding or obtaining a driver’s licence upon conviction for any offence in connection with the driving of a motor vehicle‘. Motor manslaughter is such an offence. The Proviso to the Act section 33 permits the Court to disqualify a driver, of the same class or description as the vehicle in relation to which the offence was committed.
In McKeZvey (supra) the New Zealand Court upheld an order that the appellant be disqualified indefinitely.
The Court will combine the provisions of section 33 ‘for such period as the Court thinks fit“ with the Proviso and follow McKelvey (supra) in ordering that the defendant be disqualified from driving a road service licence under the Ordinance Part IV indefinitely.

Totality
The two terms of 11 years imprisonment and the licence disqualifications will reflect the principles of totality (Mill v R (1988) 166 CLR 59). The Court pays regard to the principle of totality and will impose concurrent sentences in each case.
The only solace this Court can offer to the families is that they will be reunited with their children in Heaven. They will be remembered in the hearts and minds of all Samoans. They will live on in the memories of all who knew them.
ORDERS:
Moe Iosua is convicted of two crimes of Manslaughter. Moe Iosua is sentenced in relation to Information S2191/13 to a term of imprisonment for a period of 11 years. such sentence to commence as and from 22 October 2013.
Moe Iosua is sentenced in relation to Information S2192/13 to a term of imprisonment for a period of 11 years. such sentence to be concurrent with that imposed in Order (2).
Moe Iosua is disqualified from holding or obtaining a driver’s licence for a period of 12 years, from 22 October 2013.
Moe Iosua is disqualified from holding or obtaining a Road Service Licence indefinitely.
JUSTICE SLICER

3 comments:

Enid Westerlund said...

Bus and taxi drives are about the worst drivers on the road: Buses for the loud music, overcrowded and disrespectful youth and old men alike (I still think this is where some young children first get molested, sitting on top of old sick men) and taxi drivers for gaugau i kupe ae le pupula lelei maka i le auala!

Goddess said...

Bus drivers think they are the shizzle. ...my aunty Vaelua (RIP) was well known for whacking bus drivers with her umbrella until the bus was crawling to salelologa.

Goddess said...

she saved lives but lost friends coz then EVERYONE missed the boat to apia lol