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Police v Vaiola [2019] WSSC 51 (12 July 2019)

THE SUPREME COURT OF SAMOA
Police v Vaiola [2019] WSSC 51

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

VAIOLA LESA VAIOLA male of Satupaitea
Accused

Counsel:
A Matalasi for Prosecution
M Lui for the accused

Sentence: 12 July 2019

SENTENCE

The charges

1. The accused appears for sentence on one charge of manslaughter pursuant to ss 102 and 108 of the Crimes Act 2013, and one charge of being armed with a dangerous weapon pursuant to s25(1) of the Police Offences Ordinance 1961. The maximum penalty for manslaughter is life imprisonment and for being armed is 1year imprisonment.
2. He pleaded guilty through Counsel on 10 June 2019. Leave was granted to vacate his earlier not guilty plea.

The offending

3. The Prosecution summary of facts admitted by the accused says that the deceased is married to the accused sister and they have 3 children. They all live together with the accused family at Matautu Lefaga. On 19 October 2018, the deceased arrived home around 8pm intoxicated. He brought home a bottle of boom vodka and continued drinking with the accused. They bought 2 more large bottles of vailima. At about 12 am, the deceased went to have dinner. He got into an argument with his wife and beat her. The accused approached the deceased and asked him to stop. He then left the scene but returned when the deceased beat his wife again. The deceased approached the accused asking him what he wanted. The accused armed himself with a rock and punched the deceased with the rock. While the deceased was on the ground and motionless, the accused hit him twice. The deceased’s wife intervened and stopped the accused. The accused became concerned and got a bucket of water and tried to revive the deceased.
4. The deceased was declared dead on arrival to hospital.
5. The cause of death was blunt force head injury. The injuries sustained by the accused were;
   • (1) A broken jaw;
   • (2) Tearing behind and below the left ear;
   • (3) Bruising under the skin surface over the right top of the scalp;
   • (4) Extensive bleeding over the brain surface;
   • (5) Brain swelling;
   • (6) Some bleeding within the cavities of the brain;
   • (7) Excessive fluid in the lungs; and
   • (8) Scarring over the surface of the right lung.

The Accused

6. As shown in the pre-sentence report, the accused is 25 years old with 2 children and his spouse stays in Savaii to look after her elderly mother. He makes elei from which he earns around $500 per week.
7. His father and sister say that he is eldest son and therefore is responsible for looking after the family. They say they depend on him for village and church obligations. His father is surprised that alcohol is involved in this offending as he says the accused does not drink or smoke.
8. The pulenuu and his religious leader have both written in support. Both say that the accused is a hard working and productive member of the village and his church.
9. His village conducted an ifoga to the family of the deceased. The accused was also penalised by his village. His sister told the Court that the relationship between the families of the accused and the deceased has been healed.
10. He has expressed remorse to Probation. He is a first offender.

Aggravating and mitigating features of the offending

11. The aggravating features of the offending are;
    • (1) The offending involved actual violence;
    • (2) The use of a rock;
    • (3) The attacking of the head as reflected in the accused’s injuries;
    • (4) More than one hit;
    • (5) The familial relationship with the deceased being the brother in law of the accused;
12. The mitigating features are;
    • (1) An ifoga was conducted by his village to the family of the deceased. In Nepa v Attorney General [2010] WSCA 1 (17 May 2010), the Court of Appeal said;

Ifoga is a public statement of remorse and the seeking of forgiveness, valuable to both custom and religion (Attorney General v Matalavea [2007] WSCA 8). Its value lies not with ritual and expense but in a deeper expression of guilt, remorse and contrition;

(2) His village penalty of 2 large cows, 30 boxes of tinned fish, 1 large pig, 7 large fine mats and village lunch costing about $3000. Section 8 of the Village Fono Act 1990 provides that where punishment has been imposed by a village fono on any person and that person is convicted by a Court of a crime or offence in respect of the same matter, the Court shall take into account in mitigation of sentence the punishment imposed by that village fono.;
(3) His good character according to his family, his village and church leaders;
(4) His actions were in defence of his sister who was being beaten by the deceased;
(5) He assisted and tried to revive the deceased; and
(6) His belated guilty plea.

Discussion

13. In Police v Tasi [2014] WSSC (13 August 2014), Nelson J said;

The Courts have often said of manslaughter that the circumstances differ greatly from case to case. The Court of Appeal in Nepa [2010] WSCA has said “there is no offence in which the permissible degrees of punishment cover so wide a range as manslaughter”.

14. Former Chief Justice Sapolu said in Police v Matalavea [2006] WSSC 30;

The loss of human life is a very serious matter and that is why manslaughter is always a serious crime. It is true that the sentences which this Court has imposed in the past cases of manslaughter have varied from lengthy terms of imprisonment to non-custodial sentences depending on the particular circumstances of each case, but the Court has never lost sight of the gravity of the crime of manslaughter.

15. Prosecution has submitted a sentencing starting point of 8 years imprisonment is appropriate.
16. Defence Counsel submits that a supervision term of 2 years, 200 hours community work and attendance at an alcohol and drug program is more appropriate. The Defence has used the case of Police v Taumafai [2019] WSSC 10 in support of its submission. The distinguishing factor in that case is that it was one punch, the deceased fell down, hit his head and died. In this case, the defendant used a rock to punch the deceased the first time and then when the deceased was on the ground and motionless, the defendant hit him twice. The responses are very different. In this case, the defence of another was excessive when the defendant hit the defenceless deceased a further two times.
17. There have been numerous cases in which a rock has been used to cause death. [see Police v Luma Pesefea, Police v Faasavalu Salealii, Police v Time Timoteo, Police v Tuese Tavai]
18. The consistent approach of the Court in these cases has been to impose imprisonment terms because of the loss of life from the use of a rock.
19. It is consistent in these cases that these attacks have been fuelled by alcohol consumption.
20. I acknowledge that the case before me is now is one of the accused acting in defence of his sister who was being beaten. This is a response which every Samoan male who has a sister will understand.
21. In saying that, his response was disproportionate. He hit the deceased twice after the initial punch with the rock and when the deceased was on the ground motionless.
22. Having taken into account the aggravating features of the offending, I take 4 ½ years imprisonment as a starting point for sentence. I deduct 1 year for the ifoga and his genuine remorse which I accept is genuine. I deduct 6 months for his penalty paid to the village. For his actions which were in defence of another I deduct 1 year. I deduct 8 months for his good character and his contribution to village and church. I deduct 1 month for the way in which he responded after the offending, in trying to render assistance to the deceased. Finally I deduct 20% or 3 months for his belated guilty plea.
23. Any sentence handed down by the Court cannot compare with what you have to live with, and that is the knowledge that you have caused the death of your brother-in-law and in your own words, will have to explain to your nieces and nephews one day.

Sentence

24. For the charge of manslaughter the accused is convicted and sentenced to 12 months imprisonment.
25. For the charge of being armed with a dangerous weapon the accused is convicted and sentenced to 2 months imprisonment to be served concurrently with the manslaughter sentence.
26. Any time spent in custody to be deducted.
    

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN