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Police v Toe [2008] WSSC 17 (28 April 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

SENIO LEALAITANUMOA MISA TOE
male of Siufaga, Falelatai.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: R Titi for prosecution
F Vaai-Hoglund for accused

Sentence: 28 April 2008

SENTENCE

The charge

1. The accused was initially charged with the crime of murder to which he entered a not guilty plea. When the charge of murder was withdrawn by the prosecution and substituted with the charge of manslaughter, the accused pleaded guilty to the substituted charge.

The offending

2. It is undisputed that on Monday 21 may 2007, the deceased, Leo Feliuai, a 22 year old male of Siufaga, Falelatai, bought a large bottle of vodka which he and a friend started drinking at around 1pm in the afternoon. The accused and another man later joined in and drank the alcohol until the village evening curfew was sounded. The group then dispersed leaving the accused and the deceased who went and sat on the side of the main road. At that time, both the accused and the deceased had become intoxicated. From this point on, there are slight differences between the prosecution’s summary of facts and the account given by the accused through his counsel in that the account of events given by the accused is more detailed. As the prosecution did not seek to call evidence regarding the differences between the summary of facts and the accused’s more detailed account of the ensuing events, I will now refer to what is said by the accused through his counsel and the inferences I draw from that.
   

3. Whilst the accused and the deceased were sitting at the side of the main road during the village curfew, the deceased went to the middle of the road with a jug of alcohol and began yelling, swearing and crying out ususu. The deceased was evidently very drunk, apparently more drunk than the accused.

4. The accused then tried to bring the deceased back to the side of the raod, grabbed the jug from him and tried to lead him back to where they had been sitting together. As there were matais of the village nearby, the accused was worried as it was a village rule that drinking on the side of the road was strictly forbidden and the curfew had started. The consequence of not abiding by village rules was that the accused and the deceased would be penalised.

5. The accused’s attempts to quieten the deceased angered the deceased who pushed the accused away and swore at him. The accused then asked the deceased whether he was challenging him. The accused then punched the deceased. The punch hit the deceased on the left side of his chin. The deceased grabbed at the accused’s shirt and fell on his back. He lay on his back on the road snoring. Obviously the deceased was unconscious.
   

6. Two other people then jointed in and lifted the deceased to the side of the road where he was put in a car that took him to his home. Apparently, the deceased was still alive at that time but unconscious.

7. According to the prosecution’s summary of facts, when the deceased arrived home, he was checked for any physical injuries. Upon finding none, the accused was left to sleep with the understanding that he was overly intoxicated.
   
8. At about 10pm, the deceased was checked again and found to be in a serious condition. He was then brought to the Leulumoega hospital where he was pronounced dead on arrival. A report on the post-mortem examination conducted on the deceased showed that the deceased’s death resulted from a failure of the vital centres of the brain following brain haemorrhage. This brain haemorrhage was caused as a result of a blunt injury to the left side of the upper neck, left lower lateral face and head.
   
9. On the same night the accused was brought by his brother and sister-in-law to the police station.
   

The accused

10. The accused is a 23 year old male from the village of Siufaga, Falelatai. He is single and presently unemployed.
    
11. At the time of this offence, the accused was preparing to go to work in New Zealand where he had previously worked in 2006 for six months as a vineyard worker. After being charged, he found work as a brick-layer with a company at Vaitele but he has since stopped working there.
    

12. The accused is also a first offender and was a person of good character prior to the commission of this offence. The testimonial from the pastor of the accused’s church shows the accused to be a peaceful, well-behaved, hardworking and honest person who serves his church, village and family. Similar testimony about the accused was given by his brother to the probation service.

13. Soon after the present incident occurred, the family of the accused performed a ifoga to the family of the deceased which was accepted. The family of the accused also performed a ifoga to the village. During this ifoga to the village about 70 boxes of hearings, 40-50 boxes of chicken parts, and $2,000 cash were presented and accepted by the village.

14. The family of the accused was also responsible for everything to do with the lauava of the deceased including his funeral casket.

15. The accused, however, was banished from his village not only as a form of penalty but also to maintain peace within the village. This appears from the testimonial from the pastor of the accused’s church. It appears from the written submissions by counsel for the accused that the accused has now been accepted back by the village.

Mitigating features

16. There are several mitigating features in this case. These are: (a) the accused’s plea of guilty to the charge of manslaughter after the charge of murder was withdrawn, (b) the element of provocation from the deceased, (c) the fact that the accused is a first offender and that he was a person of good character prior to the commission of this offence, (d) the ifoga performed by the accused’s family to the deceased’s family which was accepted, (e) the ifoga performed by the accused’s family to the village, (f) the fact that the accused has already been penalised by being banished from his village, (g) co-operation with the police as evidenced by the accused surrendering himself to the police the same night this incident occurred, and (h) remorse on the part of the accused.

The degree of criminality involved

17. The real aggravating feature in this case is the degree of criminality involved in the offending. The accused says that when he and the deceased were at the road side, the deceased took the jug of alcohol and started yelling, swearing and crying out ususu. He was worried as there were village matais nearby and it was a village rule that drinking on the roadside was strictly prohibited and, moreover, the village curfew had started. The consequence of not abiding by village rules was that he and the deceased would be penalised.
    
18. In my view, if the accused was so worried what he could have done was to leave the deceased and go away himself just as their other drinking mates had already done. This would have avoided any possibility of violating any village rule by drinking on the side of the road during the curfew and being penalised for it. However, the accused stayed on with the deceased who had a jug of alcohol.
    

19 When the accused tried to quieten the deceased, the latter pushed the accused and swore at him. This must have made the accused angry for he then asked the deceased whether he was challenging him. The accused then retaliated by punching the deceased causing the deceased to fall on his back on the road where he lay unconscious. The accused’s state of intoxication is of no assistance to him. The deceased later died from brain haemorrhage. This is manslaughter under provocation.

The decision

20. Having regard to the degree of criminality involved in this offending and the mitigating features relating to the offending, I will take 4 years as a starting point for sentence. I will then deduct 30% for the accused’s guilty plea. That leaves 2 years and 10 months. I will deduct another 10 months for the other mitigating features. That leaves 2 years.

21. The accused is convicted and sentenced to 2 years imprisonment. The period of time the accused spent in custody on remand is to be further deducted from that sentence.

CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution
Vaai Lawyers for accused