IN THE SUPREME COURT OF SAMOA
Police v Tasi [2014] WSSC 164

Case name: 	Police v Tasi	
		
Citation: 	[2014] WSSC 164	
		
Decision date: 	13 August  2014	
		
Parties: 	POLICE (Prosecution)
SEMA TASI, male of Vaiusu-uta and Saina Faleata (First Defendant) AND SETI POUTASI, male of Vaitele-tai and Samauga Savaii (Second Defendant) AND IOPU TUI, male of Saina Faleata (Third Defendant)	
		
Hearing date(s): 	-	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	On the charge of manslaughter Sema you are convicted and sentenced to 3½ years in prison.  
In respect of you Seti and your part in this sad affair you will therefore receive the following sentence.  You will be convicted and ordered to come up for sentence within a period of 12 months if called upon.  What that means is if you remain in good behaviour and do not reoffend in 12 months that is the end of the matter.  But there are special conditions for that 12 months sentence.  For this 12 months Seti you will refrain from consumption of any form of alcohol that includes homebrew.  You will also pay the following sums of money: court costs of $100, police and probation office costs $50 each as well as that you will pay a sum of $500 to the probation office to be given to the wife of the deceased in this matter.  That is your token contribution to the deceased familys ongoing needs.  That money is to be paid within 14 days of todays date in default you will receive a 6 months term of imprisonment.
Likewise you too will be ordered to come up for sentence within a period of 12 months on condition not to reoffend and remain in good behaviour.  Special condition of that sentence is firstly for the period of your 12 months no alcohol of any form includes homebrew.  Secondly, you will likewise pay $500 to the probation office as your contribution to the ongoing expenses of the victims family.  You have 14 days to find your $500 in default of payment you will serve 6 months in prison.	
		
Representation: 	O Tagaloa for prosecution
R V Papalii for first defendant
D Kerslake for second defendant
R V Papalii on behalf of S Leung Wai for third defendant	
		
Catchwords: 	-	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	Nepa [2010] WSCA 1	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	SEMA TASI, male of Vaiusu-uta and Saina Faleata.
First Defendant

AND:

	SETI POUTASI, male of Vaitele-tai and Samauga Savaii
Second Defendant

AND:

IOPU TUI, male of Saina Faleata
Third Defendant
	
Counsel:	O Tagaloa for prosecution
R V Papalii for first defendant
D Kerslake for second defendant
R V Papalii on behalf of S Leung Wai for third defendant

Sentence:	13 August 2014

SENTENCE
1.	There are three defendants for sentence.  They all face different charges reflecting their different roles in the incident before the court.  The police summary of facts which is not disputed by the defendants states the first defendant Sema is 19 years of age of Vaiusu-uta and Saina.  Second defendant Seti is a 24 year old male of Vaitele-tai and Samauga Savaii.  Third defendant Iopu is a 23 year old male of Saina Faleata.  The deceased was a 35 year old male of Malie married with one child and workes as a mechanic.  
2.	On the evening of 15 November 2013 between 8:00 and 9:00 pm the deceased who had been drinking left his home to go to the shop to buy more beer.  He came past the defendants who were drinking beside the road at Vaitele-tai.  The deceased stopped his car and had a conversation with the defendants.  The result was the deceased agreed to go with the defendants to buy more alcohol for them as well.  The men then drove off in the deceaseds car.  They parked at the back of the Vaitele Market and consumed alcohol.  According to the summary they were drinking a mix of vodka and water from a barrel which they had in the car.  
3.	At some stage during the party the defendant Sema and deceased got into an argument causing Sema to punch the deceased in the face.  The deceased fell face down on the front of the car and onto the ground.  He began snoring. The defendants carried the deceased into the car and put him in the back seat.  The deceased at that time was unconscious.  They then decided to take the deceaseds car for a ride.  They got into the car and Iopu drove the car while Sema sat next to him and Seti at the back seat.  
4.	They drove the car around the villages of Faleula, Nu’u, Vaitele-fou and Saina all the while drinking their alcohol.  At one stage the defendant Seti sat on the stomach of the still unconscious deceased.  The defendants then drove the car to the house of Iopu at Saina, took the tool box that was inside the car and left it at Iopu’s house.  They continued to Vaiusu to the house of Sema and took the car tyre jack as well as a tyre and left it at Semas house.  By this time it was almost dawn on the 16th of November.  
5.	They drove around Vaitele looking for somewhere to dispose of the car.  They found a bushy area and there they parked the car with the deceased still unconscious in the back seat.     Later that morning a man from a family close by discovered the deceased and the abandoned car.  Tried to wake up the deceased but was not successful, called the police who took the deceased to the hospital.  The deceased was declared dead on arrival.  According to the post mortem report of the deceased he suffered various injuries to his face but the fatal injury was brain haemorrhaging.  The report does not say at what stage the deceased passed away.  
6.	As a result of the incident the defendants have pleaded guilty to the following charges:  Sema has pleaded guilty to manslaughter as well as guilty to theft of the spare tyre and car jack that was in the vehicle.  Seti has pleaded guilty to assault and Iopu guilty to stealing the tool box.  I will deal with each of the defendants individually beginning with the most serious offender Sema.  
7.	In relation to this charge I issue first a Coroners ruling certifying that the deceased in this matter Mr Uili Neil Seiuli a male of Malie, died on or about 15 November at Vaitele, the cause of death was brain haemorrhage as a result of an unlawful assault on him.  I also certify as Coroner that alcohol was a contributing factor to the fatality.  
8.	The maximum penalty facing Sema is life in prison which is the maximum for manslaughter.  The courts have often said of manslaughter that the circumstances differ greatly from case to case.  The Court of Appeal in Nepa [2010] WSCA 1 has said “there is no offence in which the permissible degrees of punishment cover so wide a range as manslaughter.”  
9.	In this case it is not clear what caused Sema to punch the deceased.  What they were arguing about.  But what is clear is Sema delivered one punch to the deceaseds face, it felled the deceased and it most likely was the cause of the fatal injury.  It also seems from looking at all the circumstances that the defendants perhaps underestimated the seriousness of the deceaseds condition.  But their actions were quite careless in not bothering to check on the deceased, or taking him to his home or aiding him in some other way.  They were more concerned about joy riding around drinking their booze in the car of someone they had just met the previous evening.  Their actions reflects their state of mind and no doubt the degree of their intoxication.  
10.	Although the maximum penalty Sema is life I consider in all the circumstances of this matter an appropriate start point for sentence is 4 years in prison.  But that should be uplifted to 5 years because of your previous convictions for offences of violence in 2010 and 2012.  It is clear those sentences were not a sufficient deterrent for you and that you learnt nothing from it Sema.  I also note your term of probation on your last offence only expired about two months before this incident.  
11.	From the start point of 5 years in prison you are entitled to certain deductions to which your counsel has referred and which the court will now deal with.  A start point of 5 years is 60 months in prison.  I will make a one-quarter of term deduction for your guilty plea because that has saved the courts time and resources of the State and is also some expression of your remorse for what you did.  That leaves a balance of 45 months.  The documents before me indicates an apology was made to the sa’o of  your village, that has been confirmed by your pulenu’u and the probation office.  I deduct 3 months for that leaves a balance of 42 months.  
12.	There is mention in the documents of banishment from your village, however your pulenuu told the probation that your family and you were banished over another incident not this matter.    There is therefore no deduction appropriate for banishment.  There has also been no reconciliation or formal ifoga presented to the victims family according to the pre-sentence report.  
13.	The only other matter I need to consider is the argument of provocation put forward by your counsel.   In considering the summary of facts there is no evidence of any such provocation from the victim.  And no evidence was called to support the suggestion that the deceased provoked your punch.  You qualify for no further deduction from your sentence.  
14.	On the charge of manslaughter Sema you are convicted and sentenced to 3½  years in prison.  
15.	The other charge of theft of the spare tyre and the car jack also carries imprisonment penalties.    The circumstances indicate you stole this property from a man you had just knocked out.  There is not much in your favour except your guilty plea to the charge.  I note these particular goods according to the information belong to someone else not the deceased.  And I am assuming that these goods were recovered and returned to that person.  But no effort was made by you to apologise to that person.  A proper sentence in the circumstances would be 6 months in prison.  And because that is a separate matter there would be every justification for making this 6 months cumulative to your term for manslaughter.  However, I will extend this leniency to you Sema and order that in respect of this charge the term of imprisonment be served concurrent. O lona uiga o le fa’aiuga a le fa’amasinoga i moliaga ia e lua e 3½  tausaga e te nofo sala ai i le toese.  Fa’afetai Sema ua maea lau mataupu alala mai oe i lalo.
16.	Seti has pleaded guilty to assault with a one year maximum penalty at law.  But this assault consisted of Seti sitting on the deceaseds stomach.  There is no evidence that what Seti did contributed to the death of the deceased or that he caused any injuries by sitting on the deceaseds stomach.  An imprisonment term in the circumstances is not appropriate for you Seti.  Indeed the prosecution are not seeking an imprisonment term in their submission.  
17.	In considering a suitable penalty for your role in this tragic affair I note your guilty plea.  I also note the good pre-sentence report from the probation office with accompanying references that speak well of your character.  You have a clean record this is your first court appearance.  I also note from the pre-sentence report that your family has now been reinstated by your village and considering that and other matters I conclude that you have the financial ability to meet a monetary penalty. 
18.	In respect of you Seti and your part in this sad affair you will therefore receive the following sentence.  You will be convicted and ordered to come up for sentence within a period of 12 months if called upon.  What that means is if you remain in good behaviour and do not reoffend in 12 months that is the end of the matter.  But there are special conditions for that 12 months sentence.  For this 12 months Seti you will refrain from consumption of any form of alcohol that includes homebrew.  You will also pay the following sums of money: court costs of $100, police and probation office costs $50 each as well as that you will pay a sum of $500 to the probation office to be given to the wife of the deceased in this matter.  That is your token contribution to the deceased familys ongoing needs.  That money is to be paid within 14 days of todays date in default you will receive a 6 months term of imprisonment.  Is there anything unclear about the conditions of sentence in relation to Seti? (Counsel said no).  Ia lelei ua e malamalama i le fa’aiuga o le mataupu lea e fa’asaga ia oe Seti? (Defendant said yes).  Ia fa’afetai alala mai oe i lalo ae tula’i mai Iopu.
19.	Iopu pleaded guilty to theft of the tool box which carries a 2 years maximum penalty.  Again imprisonment in my view is not appropriate for this.  Iopus previous convictions were for different kind of offence so I am therefore treating him as someone who has a clean record.  He also had a good probation pre-sentence report from the probation office with accompanying references from his faifeau and pulenuu.   But Iopu I give you this warning.  Twice now you have appeared before the court you have escaped prison, you have been given chances.  You come back again before court on something like this or indeed on any other matter you will find those chances will vanish into thin air.   Ua e malamalama i le tulaga lea Iopu? (Defendant said yes).
20.	I have considered your counsels submission about how a conviction would prejudice your  possible re-employment in American Samoa.  The problem with his submission is you already have a previous conviction for criminal offending so another conviction makes no difference.  And there is nothing in the pre-sentence report to suggest that in fact you work in American Samoa as put forward by your lawyer.  I therefore disregard your counsels submission on this issue.  
21.	Likewise you too will be ordered to come up for sentence within a period of 12 months on condition not to reoffend and remain in good behaviour.  Special condition of that sentence is firstly for the period of your 12 months no alcohol of any form includes homebrew.  Secondly, you will likewise pay $500 to the probation office as your contribution to the ongoing expenses of the victims family.  You have 14 days to find your $500 in default of payment you will serve 6 months in prison.  You got the sentence for Iopu Ms Papalii? (Papalii: yes your honour).  Ua e malamalama i le fa’aiuga o lau mataupu Iopu? (Defendant said yes).  Fa’aaoga lelei le avanoa lea ua tu’u atu ia oe i le asō.  Aua nei e toe tulai i ni mataupu i luma o le tulafono, fa’afetai ua maea le tou mataupu.

JUSTICE NELSON