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Police v Fonoti [2008] WSSC 72 (1 September 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

ANAPOGI FONOTI
male of Vaimoso and Vaitoomuli Palauli
Defendant

Counsels: Mr Patu for prosecution
Ms Atoa for defendant

Sentencing Date: 01 September 2008

SENTENCE BY JUSTICE VAAI

The defendant aged 30 years of age, a carpenter by trade pleaded guilty to the charge of manslaughter to which he is liable to imprisonment for life.

On the 8th December 2007 at 2 o’clock in the morning, the deceased who was intoxicated went to the house of Mr Parker at Vaimoso. He wanted to light his cigarette. He made a nuisance of himself. He was shouting and throwing dishes from Mr Parker’s house.

The defendant who was also intoxicated confronted the deceased. They had been drinking together. The defendant also wanted to smoke but he did not have any cigarette. He saw the deceased lighting a cigarette, the deceased refused to give the defendant a cigarette when asked. They then started to argue and eventually got into a fight. When the deceased fell to the ground as a result of a punch the defendant continued to kick the deceased. The deceased was injured and taken to hospital where he was declared dead upon arrival.

The injuries suffered by the deceased were discovered on the head and face. The post mortem report concluded that the cause of death was due to the failure of the vital centres of the brain following intracranial haemorrhage as a result of injuries to the head and face which were caused by the blunt trauma.

It is fair to say with some confidence that if the defendant had not continued to kick the deceased on the head and face whilst he was lying helplessly on the ground, the defendant would not be confronting the present charge of manslaughter.

Drunkenness may have been the reason for the defendant’s excessive aggressiveness; but it is certainly neither a defence nor a mitigating element; especially so when what appears to have initially triggered the defendant’s anger was the refusal by the deceased to give him a cigarette.

The crime of manslaughter is naturally a very serious one because of the loss of human life. The defendant told the probation service that he stopped the assault when a relative intervened. That is a clear indication to the court that the defendant chose to give his anger full vent when he continued kicking the defenceless deceased on the ground.

The circumstances of each case of manslaughter are different. The culpability of the offender is to be assessed in the circumstances. It is for that reason that sentences imposed by the court have varied from lengthy terms of imprisonment to non-custodial sentences.

Just as the features of culpability require careful assessment, so too are the mitigating factors. The offending by the defendant involved a brief loss of self-control.

A custodial sentence on the lower end of the scale is justified when considering the culpability of the defendant and in comparison with other criminal offending. It must carry the necessary denunciation of the conduct and convey the clear deterrent message that those who endanger the lives of others by resorting to violence will have attributed to them the level of criminality civilised society demands.

In the circumstances a starting point of three years imprisonment will be considered. I will deduct six months for the early guilty plea. I will deduct a further six months for the previous good record and for remorsefulness. The defendant will serve 2 years imprisonment.

JUSTICE VAAI