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Police v Tavai [2010] WSSC 175 (8 December 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TUESE TAVAI
male of Lalomanu and Aufaga.
Defendant

Counsels: R Titi and P Valoia for prosecution
M Tuatagaloa for defendant

Sentence: 08 December 2010

SENTENCE

The defendant appears for sentence on a charge that at Lalomanu on 11 August 2009 he assaulted the deceased Soo Ropeti also a male of Lalomanu and caused his death at the Tupua Tamasese Hospital at Motootua on 13 August 2009 thereby committing the crime of manslaughter. For the purposes of a coroners ruling I find that the deceased Soo Ropeti a male of Lalomanu died at Tupua Tamasese Meaole Hospital on the 13 August 2009 from intracranial hemorrhage caused by fatal head wounds from this assault.

The summary of facts which the defendant has accepted through his counsel relates as follows:

1. The defendant is a thirty two (32) year old male of Lalomanu and Aufaga. He is currently unemployed and is single.
   
2. The deceased is a forty four (44) year old male of Lalomanu
   
3. On Tuesday night, 11th August 2010, the defendant and the deceased were drinking alcohol at different places in the village of Lalomanu.
   
4. At around 10 pm at night, the deceased and two acquaintances walked to the main road to drop the deceased off at his house and to finish their beer. While they were on the road, the defendant entered onto the main road.
   
5. The deceased followed behind his acquaintances staggering and holding a machete which he had used earlier for their work.
   
6. As the deceaseds acquaintances walked ahead, the deceased and the defendant met up and had an exchange of words. The deceased walked forward with his back towards the defendant.
   
7. Following the exchange of words the defendant grabbed and threw a rock and hit the deceased on the back of his head causing him to fall heavily on the ground.
   
8. The defendant approached the deceased and threw aside the machete before he took hold of the deceaseds legs and dragged him across the tar sealed road to the beach area. Then he left the scene.
   
9. A witness that saw this incident summoned the deceaseds brother who came and found the deceased with his head facing the road and covered in a pool of blood.
   
10. The deceased was taken to the Lalomanu District Hospital and subsequently admitted to the Tupua Tamasese Meaole Hospital at Motootua at or around 4.15 am Wednesday 12 August 2009.
    
11. The medical findings show that the deceased had multiple open wounds on the head and face and abrasions as follows:
    
    1. Two lacerated wounds on the left side of the face each measuring ¼ inch at scalp depth.
       
    2. Two lacerated wounds on the right side of the forehead each measuring ¼ inch at scalp depth.
       
    3. One lacerated wound measuring ¾ inch at soft tissue depth present over the right cheek.
       
    4. One lacerated wound measuring ¼ inch on the right upper lip
       
    5. Two right incisor teeth were absent, dislocated and injured
       
    6. Laceration on upper lip where the teeth were missing
       
    7. A bruise on the right cheek
       
    8. Bruise of the right eye
       
    9. Abrasion on right scapular region.
       
12. The medical findings also showed that the left side of the deceaseds head was depressed and the post mortem report revealed that there were four separate fractures to the skull, two on the left temporal bone and left parietal bone, measuring one and a half inches and six inches length and two on the right side of the skull, one on the right temporal bone and one on the right parietal bone both measuring two and a half inches in length.
    
13. The cause of death was due to failure of the vital centers of the brain following intracranial hemorrhage as a result of the injuries to the head.
    
14. On Friday 14 August 2009, the defendant was taken to the Apia Police Headquarters. The defendant was informed of his rights and the reason why he was brought to the Police Station before he was cautioned and interviewed.
    

Those are the facts of this matter. The defendant insists that he only threw one rock which hit the deceased on the head. And he suggests that the various injuries outlined in the summary of facts were perhaps caused by the intoxicated deceased falling heavily onto the road. No evidence was called to substantiate that suggestion and I seriously doubt that these injuries were the result of one rock to the head causing the deceased to fall heavily onto the road. But whatever the case may be it is clear that the defendant by his guilty plea to the charge of manslaughter accepts that he caused the deceaseds death. And it is equally beyond doubt from the medical evidence and through the documents placed before the court that these and no other injuries are what caused the deceaseds death. Ipso facto then the defendant is responsible for the deceaseds injuries. There is no evidence that anyone else assaulted the deceased and he must be dealt with on that basis.

Maximum penalty for manslaughter is life imprisonment. It has been said in previous cases that the penalties for this offence are so varied reflecting the wide range of circumstances in which the offence arises. In a passage quoted by the Court of Appeal in Nepa v The Attorney General [2010] WSCA 1 it is stated "there is no offence in which the permissible degrees of punishment cover so wide a range and non perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty."

In this case the main facts are that the defendant used a weapon namely a stone to inflict the fatal injuries. The nature of the deceaseds injuries show this was an attack involving considerable force. I also take into consideration that the attack was probably a result of the exchange of words between the two parties as they passed by on the road. And further that although the deceased was in possession of a sapelu there is no suggestion that he used it to threaten the defendant in any way. It is also relevant that the defendant after the incident dragged the deceased to the beach and left him there unaided. The Court of Appeal in the judgment in Nepa endorsed this as a relevant sentencing consideration. I reject the suggestion that the defendant did this in case the deceased was run over by a car. The action of him dragging the deceased not to the side of the road but to the beach is more indicative of the actions of someone trying to conceal what has just occurred. And there is nothing in the agreed statement of facts to indicate that the defendant called out to anyone to come and look after the deceased.

Taking all these circumstances into consideration in particular the severity of the attack in this case I adopt 8 to 9 years as an appropriate start point for sentencing. I will exercise some leniency and use the lower end of the spectrum and start at 8 years. But as you have relevant previous convictions Tuese for offences of violence involving the use of a weapon I upgrade that start point to 9 years. I discount your sentence by one-third for your guilty plea which is an expression of your remorse and which has saved the court the time and resources of a trial. That reduces the penalty to 6 years. I discount that further by a period of 12 months for the ifoga and the penalty that you and your family have had to pay to the village council in this matter, that reduces the penalty further to 5 years. There are no other factors for which you are entitled to a further deduction. For this matter Tuese you will be convicted and sentenced to 5 years imprisonment.

............................
JUSTICE NELSON