IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

MOOMU LELEI male of Lotoso'a, Saleimoa.
Accused

Counsel: P Chang and T Nelson for prosecution
 M Tuatagaloa for accused

Sentence: 24 September 2010

SENTENCE BY SAPOLU CJ

The charge

1.	The accused was charged with murder to which he pleaded not guilty. After a three day trial before assessors, he was found not guilty of murder but guilty of manslaughter. The accused now appears for sentence on manslaughter for which the maximum penalty is life imprisonment.

Offending 

2.	Essentially, this case came about because of the deceased having an affair with the wife of the accused. As a result, the wife of the accused left the accused.

3.	As it appears from the evidence adduced at the trial, towards the end of November 2009, the wife of the accused left her house in the afternoon and did not return until close to 5am the following morning. A few days later, the accused heard rumours within his village of Lotoso'a, Seleima, about his wife having an affair with the deceased. When the accused questioned his wife about it, she did not take any notice of him. Evidence given by two of the witnesses strongly suggested that the deceased and the accused's wife were actually having an affair. 

4.	Then on the Wednesday of the week prior to Christmas, the accused went to sleep with his wife in their house but when he woke up in the middle of the night, his wife was not in their house. It was not until dawn that his wife returned.

5.	Then on Friday night the following week, which was Christmas Day, the accused and his wife went to the dance of their village. The accused's wife was selling her "vai" during the dance and the accused testified that the deceased was standing at where his wife was selling her "vai" the whole night. The accused became increasingly suspicious of the deceased and his wife. The following night which was Saturday night, the accused and his wife attended the social function of their church. The deceased, who was also at the same social function, went to where the accused and his wife were and poured a bottle of spirits into the plastic cup of the accused's wife. The accused picked up his wife's plastic cup and poured it into his own plastic cup. However, the deceased again poured spirit into the plastic cup of the accused's wife. The accused was becoming angry at that time and he picked up his wife's cup and drank all the spirit in it. The growing anger of the accused was apparent to the deceased. Because of his anger, the accused left before the end of the social function while his wife and the deceased were still there.

6.	The accused's wife did not return home until early the following morning which was Sunday morning. At that time, the accused observed a love bite on the neck of his wife and when he approached his wife she ran off to the nearby house of his sister. Because the accused was very angry, he left his house that Sunday morning and went and stayed at his family's house at their plantation. He did not return to his house until the following evening which was Monday evening, 28 December 2009.

7.	When the accused got back to his house, his wife was not there. He then went to his sister's house and asked his sister about his wife. The accused's sister replied that his wife had left their family on Sunday which was the previous day. The accused testified that he became deeply hurt and extremely angry with the deceased as his warm and close relationship with his wife had been severed because of the deceased. He then picked up a bread knife and went to look for the deceased. He found the deceased in front of his (deceased's) family's house and stabbed him once on the right chest.

8.	The accused then looked for a vehicle to bring him to the Apia police station. When a vehicle was found, the accused came to Apia and handed himself over to the police. The deceased died at the Leulumoega hospital that same evening.

The accused

9.	The accused is a 40 year old male from the village of Lotoso'a, Saleimoa. He is a first offender and as the pre-sentence report and the testimonials from the pastor of the accused's church and the pulenu'u of his village show, the accused had been a person of good character prior to the commission of this offence.

10.	After the commission of the offence, the accused, as already mentioned, handed himself over to the police. The accused's family had also performed a ifoga to the family of the deceased which was accepted. Included in the ifoga was a presentation of $3,000 cash, seven large fine mats, 100 pusa apa, and a large pig. The accused's family also contributed 10 cases of corned beef and 10 large fine mats to the lauava of the deceased. In my view, the ifoga by the family of the accused and their contribution to the lauava of the deceased reflect remorse and the desire on the part of the accused's family to keep the peace with the deceased's family so that there will be no further trouble between the two families. I do not consider that there was any motive behind the ifoga to buy a lenient sentence from the Court. The outcome of any Court case was many months away and was therefore unknown at the time of the ifoga. The immediate concern of the accused's family at the time of the ifoga must have been to keep its peaceful relationship with the family of the deceased and to seek forgiveness for the accused.

Aggravating factor

11.	The only aggravating factor in this case is the use by the accused of a bread knife to stab the deceased. The loss of life is an element of every homicide case and is always a very serious matter. Without a loss of life there can be no manslaughter. But I do not consider the loss of life as an aggravating factor in a manslaughter case. One would have to see whether there are any factors, apart from the loss of life itself, which aggravate the seriousness of the loss of life that has occurred because of the accused. I also do not consider the omission by the accused to give any assistance to the deceased after stabbing him as an aggravating factor. It would be unrealistic to expect the accused who had stabbed the deceased out of extreme anger to become a Good Samaritan in a matter of seconds and provide assistance to the deceased. In the circumstances, it might also have been unsafe for the accused to remain in front of the house of the deceased's family after he had stabbed the deceased.

Mitigating factors

12.	The principal mitigating factor in this case, and it is the only mitigating factor which relates to the offending, is provocation.

13.	The other mitigating factors, and these are personal to the accused, are (a) the fact that the accused is a first offender and was a person of good character prior to the commission of this offence, (b) the ifoga that was performed by the accused and his family as well as their contribution to the lauava of the deceased, and (c) the fact that the accused voluntarily surrendered himself to the police.

The decision

14.	As this Court has already stated in a number of its previous decision in criminal sentencing, the modern approach to sentencing is to start the sentencing process by setting a starting point. This is done by having regard to the aggravating and mitigating factors relating to the offending and the accused's involvement in it. This defines the precise criminality of the offending. Once that is done, the next step is to adjust the starting point up or down by taking into account any factors in aggravation or mitigation which are peculiar to the accused who is the offender. This approach has been explained and applied in some of the cases cited by counsel for the prosecution in their helpful submissions. 

15.	In Attorney General v Matalavea [2007] WSCA 8, which was a case of manslaughter, the Court of Appeal explained and applied the modern approach to sentencing and then decided that the starting point for sentencing in that case was 6 years. This is the first manslaughter case in which the Supreme Court and then the Court of Appeal applied the approach of setting a starting point for sentence. Such an approach was also applied by the New Zealand Court of Appeal in R v Rapira [2003] NZCA 217 which was concerned with manslaughter and robbery. In my respectful view, the case of Police v Langkilde [2009] WSSC 93 which was cited by the prosecution would have to be read with these comments in mind. The Court of Appeal in Attorney-General v Matalavea also referred to its previous decisions in the two manslaughter cases of Faafua (Vili) v Police [1980-1993] WSLR 550 and Attorney-General v Mani [1994] WSCA 16 and expressed the view that in terms of the modern sentencing approach, the starting point for sentencing in those two cases was perhaps 6 years. The Court of Appeal further referred to recent sentencing decisions of the Supreme Court on manslaughter and stated that the notional starting point for sentence in those decisions might have been 8 years. In Nepa v Attorney- General [2010] WSCA1, the Court of Appeal stated that those Supreme Court decisions remain useful when passing sentence in cases involving a single offender using a weapon.

16.	The Attorney-General v Matalavea [2007] WSCA 8, Attorney-General v Mani [1994] WSCA 16, and Faafua (Vili) v Police [1980-1993] WSLR 55 were manslaughter cases concerned with a one-to-one situation, that is to say, where only one accused and the deceased were involved. However, where more than one accused is involved, as in the case of a group or multiple assailants, and an unprovoked assault results in death, the Court of Appeal stated in Nepa v Attorney-General [2010] WSCA 1 that the starting point for sentencing ought to be 10 to 12 years for manslaughter.

17.	It is also to be noted that the starting point approach is not the same thing as a tariff sentence. The process of setting a starting point for sentence has an element of flexibility which depends on the aggravating and mitigating factors relating to the peculiar offending. A tariff sentence applies across the board.

18.	Applying the modern approach for sentencing to this case, I will take a starting point of 5½ years because of the nature of the provocation involved. There is no aggravating factor which is personal to the accused, for example, previous convictions. So it is not necessary to adjust the starting point of 5 ½ years up. But there are mitigating factors relating to the accused personally, namely, the fact that he is a first offender, the ifoga by his family, and the fact that the accused surrendered himself voluntarily to the police which make it necessary to adjust the starting point of 5 ½ years down. Provocation is not a mitigating factor that is personal to the accused because it came from the deceased. The reaction of the accused to the provocation from the deceased and the provocation itself form parts of the offending that occurred. The starting point is accordingly adjusted down by 18 months. That leaves 4 years. In my view, this sentence satisfies the sentencing objectives of retribution and deterrence in this case.

19.	The accused is sentenced to 4 years imprisonment. In accordance with normal practice, any period of time for which the accused was remanded in custody pending trial is to be deducted from that sentence.

CHIEF JUSTICE

Solicitor
Attorney General's Office, Apia for prosecution
BruntKeli Law Firm for accused