SUPREME COURT OF SAMOA
Police v Aukusitino [2013] WSSC 111

Case name: Police v Aukusitino
Citation: [2013] WSSC 111
Decision date: 30 September 2013 
Parties: 
POLICE v SAVELIO AUKUSITINO, male of Leauvaa.
Hearing date(s): 
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Justice Nelson
On appeal from:
Order:
Representation: 
F Lagaaia and O Tagaloa for prosecution
J Brunt for defendant
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

SAVELIO AUKUSITINO, male of Leauvaa.
Defendant

Counsel:  F Lagaaia and O Tagaloa for prosecution
J Brunt for defendant 

Sentence:  30 September 2013

SENTENCE
The defendant appears for sentence on a charge that at Leauvaa on the 19th of January this year he did by an unlawful act namely assault cause the death of Emelio Tamara male of Leauvaa and thereby commit the crime of manslaughter which carries a maximum penalty of life in prison.  The defendant is a 31 year old single male of Leauvaa, currently resides with his sister at Leauvaa.  He is unemployed but works the family plantation like many Samoan men of his age.  
The victim is the defendants nephew.  He is the son of the defendants sister.  The sister has virtually brought up the defendant like one of her own children.  So the victim is like a brother to the defendant.  The sister in her victim impact report says that she was initially shocked by the incident and hurt by what happened.  But she loves the defendant who she raised and understandably does not wish to see any further harm come to him.  She seeks leniency from the court.  The probation office pre-sentence report indicates that the family have settled this matter and the defendant sister has forgiven him for what he did.  But the law must still take its course and this afternoon I am required to pass sentence on the defendant for his actions.  
Because the court also sits as a Coroners Court enquiring into the cause of death  I hereby certify that the said Emelio Tamara a 20 year old single male of Malie died on the 22nd of January this year as a result of head injuries inflicted by the defendant on the night of 19 January 2013.  The immediate cause of death was blunt force trauma to the head caused by a blow from a rock. I also certify as Coroner that this is a case involving the consumption of alcohol sadly like many such cases in this country.  And further that the defendant is being dealt with according to the law.  
In accordance with the police summary of facts which has been accepted by the defendant through his counsel, when read together with what the defendant told the probation office shows that the following is what happened.  On the night of Saturday 19 January 2013 the defendant was drinking with his friend Paulo and his other nephew.  During the drinking session the deceased joined the party.  The group was consuming a large bottle of vodka.  As drinking sessions go it started off without incident like it normally does and degenerated as the session went on probably in proportion to the alcohol being consumed.  An argument arose over I am not quite sure what but seems to be a tin of spam and who could drink what drink.  Such petty things are usually the subject of vigorous disagreement amongst drunks.  It led to the deceased punching Paulo and knocking him out.  The deceased was then chased away by the group.  The police summary says that at that point the defendant followed the deceased and threw a river rock described as a “ma’a vai”.  Struck the victims head and knocked him to the ground unconscious.  
The defendants version given through counsel and to the probation office is that Paulo awoke and came after the deceased and began arguing and confronting the deceased.  And to break the group up the defendant threw a rock which unfortunately hit the deceased.  Whichever version is correct one thing is abundantly clear.  The defendant threw a rock.  This ended up causing fatal injuries to the deceased.  The post mortem report shows that the deceaseds right parietal bone which is the bone above the right ear was fractured.  Underneath the fracture was bleeding or hemorrhaging.  And the blow was severe enough to cause a contracoup injury which is what happens when the brain moves in the opposite direction to the blow.  All indications of the significant force with which the stone was thrown.  
Whether the defendant meant to kill the deceased is not in issue.  But it is obvious the defendant meant to throw the rock.  And he threw it with a great deal of venom.  This case once again shows how lethal a weapon a rock can be in the hands of a young Samoan.  
The maximum penalty as stated above for this offence is life in prison.  The normal penalty for manslaughter is invariably a prison sentence to mark the gravity of the offence and the fact that a human life has been lost.  In this case the sentence must also reflect your use of a weapon to inflict the fatal injuries.  
The prosecution have asked for a start sentence of 9 years in prison.  I agree that accurately reflects the factors involved in the offending.  But as your counsel has correctly pointed out there are also mitigating factors in your favour.  
The first and foremost is your guilty plea which has saved the court the time and expense of a full trial.  For that I will deduct one-third of your term namely 3 years leaves a balance of 6 years.  It is clear you have a previous good background of service to your family your village and your ekalesia.  I cannot treat you as a first offender because you have a previous conviction but I do note that is an old conviction and was for a different kind of offence.  For your previous character then I will deduct a period of 6 months from the 6 years leaves a balance of 5½  years.  For the reconciliation that has been done and for the fine imposed by the village such as it is I will deduct a further 6 months from that leaves a balance of 5 years.  
There are no other factors Savelio which can be used as mitigating factors in your case.  On this offence you will be convicted and sentenced to 5 years in prison.  But your time in custody awaiting sentence is to be deducted from that. 
.……………………
JUSTICE NELSON