IN THE COURT OF APPEAL OF SAMOA
Attorney General v Vaiola Lesa [2019] WSCA 10

Case name: 	Police v Vaiola Lesa 	
		
Citation: 	[2019] WSCA 10	
		
Decision date: 	19 September 2019	
		
Parties: 	ATTORNEY GENERAL (Appellant) and VAIOLA LESA (Respondent)	
		
Hearing date(s): 	12 September 2019	
		
File number(s): 	CA26/19	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Court of Appeal of Appeal of Samoa, Mulinuu	
		
Judge(s): 	Honourable Justice Fisher
Honourable Justice Harrison
Honourable Justice Clarke	
		
On appeal from:	Supreme Court of Samoa, Mulinuu	
		
Order:	The appeal is dismissed.	
		
Representation: 	H Retzlaff and A. Matalasi for Appellant 
M. Lui for Respondent	
		
Catchwords: 	appeal against sentence -  charge of manslaughter – armed with a dangerous weapon – ifoga – village penalty imposed – multiple hits – custodial sentence – pre-meditation  	
		
Words and phrases:	arose from domestic violence incident – acting in defence of another – self defence	
		
Legislation cited:	Crimes Act 2013, s. 17
Sentencing Act 2016, s. 17	
		
Cases cited:	R v Clifford [2011] NZCA 360	
		
Summary of decision:		

CA 26/19

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINU’U

BETWEEN

ATTORNEY GENERAL
Appellant

AND

VAIOLA LESA

Respondent

Court:	Honourable Justice Fisher
	Honourable Justice Harrison
	Honourable Justice Clarke
Hearing: 	12 September 2019

Counsel:	       H Retzlaff and A. Matalasi for Appellant 
       M. Lui for Respondent

Judgment: 	19 September 2019

JUDGMENT OF THE COURT
Introduction
1. 	The Attorney General appeals against a sentence of 12 months’ imprisonment imposed on the respondent following his plea of guilty to a charge of manslaughter. The Attorney also appeals against a sentence of 2 months’ concurrent imprisonment for being armed with a dangerous weapon, namely a rock.  
The Facts
2. 	The 31 year old deceased was married to the respondent’s sister. They all lived with their families at Matautu Lefaga. 
3. 	On the night of 19 October 2018 the deceased arrived home intoxicated. He and the respondent spent the next few hours drinking a large quantity of alcohol.
4. 	At about midnight the deceased went to have dinner. Following an argument with his wife he began to beat her.  The respondent intervened, asking the deceased to stop hitting his sister. The respondent then left. 
5. 	The deceased renewed his attack on his wife. Hearing this, the respondent returned to the scene. The deceased approached the respondent and asked him what he wanted. 
6. 	The respondent armed himself with a rock and punched the deceased with it. The deceased fell to the ground. While the deceased was on the ground the respondent punched him twice more with his empty fist. 
7. 	The deceased’s wife intervened and stopped the respondent. The respondent became concerned about the deceased. He obtained a bucket of water and tried to revive the deceased.
8. 	The deceased was taken to the hospital where he was declared dead on arrival. The cause of death was blunt force head injury. The injuries he sustained were:
•	A broken jaw;
•	Tearing behind and below the left ear;
•	Bruising under the skin surface over the right top of the scalp;
•	Extensive bleeding over the brain surface;
•	Brain swelling;
•	Some bleeding within the cavities of the brain;
•	Excessive fluid in the lungs; and
•	Scarring over the surface of the right lung.
The Respondent
9. 	The respondent is 25 years of age. He is married with two children. As the eldest son he has assumed responsibility for looking after his extended family. The Pulenuu and his religious leader have both written in support. Both say that the respondent is a hard-working and productive member of his village and church. He is well-regarded by those who know him. 
10. 	His village conducted an ifoga to the family of the deceased. The relationship between the families of the respondent and the deceased has been healed. 
11. 	The respondent was also penalised by his village. The village penalty was two large cows, 30 boxes of tinned fish, one large pig, seven large fine mats and $3000 for a village lunch.
12. 	He expressed remorse to Probation and is a first offender.
Supreme Court sentencing
13. 	In the Supreme Court the Judge identified the aggravating features as:
•	The actual violence;
•	The use of a rock;
•	The attacking of the head as reflected in the respondent’s injuries;
•	More than one hit;
•	The familial relationship with the deceased being the brother in law of the respondent;
14. 	She identified the mitigating features as:
•	The ifoga.
•	The punishment imposed by the village fono 
•	His good character confirmed by his family, village and church leaders;
•	The fact that his actions were in defence of his sister who was being beaten by the deceased;
•	The fact that he tried to revive the deceased; and
•	His belated guilty plea.
15. 	Having reviewed a number of prior decisions the Judge pointed out that the Courts had consistently imposed imprisonment where death had been caused by the use of a rock. She acknowledged that the respondent had been acting in defence of his sister but pointed out that he had hit the deceased twice after the deceased was on the ground motionless. 
16. 	She arrived at the final sentence of 12 months on the manslaughter charge by the following means:
	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. 
17. 	She added a sentence of two months’ concurrent imprisonment on the charge of being armed with a dangerous weapon. She also directed that any time spent in custody was to be deducted.
The Appeal
18. 	In this Court Mr. Retzlaff submitted that the Judge’s starting point should have been seven to nine years rather than the four and a half years she used. 
19. 	Mr. Retzlaff took us through a helpful survey of earlier manslaughter sentences where death had been caused by the use of a rock as a weapon to the head. The starting points before deduction for personal and mitigating factors were as follows:
	Police v Fuiavailiili Salealii	[2010] WSSC 139 	8 years
	Police v Tiumalu Tia 		[2010] WSSC 90	7 years
	Police v Tuese Tavai 		[2010] WSSC 175	8 years
	Police v Time Timoteo 		[2011] WSSC 65	9 years
	Police v Luma Pesefea 		[2018] WSSC 123	7 years
20. 	Flexibility will always be needed to accommodate individual circumstances. However, we accept that seven to nine years’ imprisonment will usually be an appropriate starting point for manslaughter where death was caused by the application of a rock to the head. 
21. 	Ms. Lui submitted that the cases cited by Mr. Retzlaff involved a higher level of premeditation than in the present case. We accept that this is a reason for starting at the lower end of that range, namely seven years. 
22. 	There is one outstanding factor that distinguishes this case from others of its kind. The blow with a rock was struck in defence of another as well as, arguably, in self defence. Ms. Lui repeated to us something she had included in her written submission in the Supreme Court without objection from the prosecution. She submitted that: 
	Vaiola then again told the deceased to stop hitting his sister but the deceased turned around and approached Vaiola threateningly asking what he wanted. It was then that Vaiola, who was years younger than the deceased and much smaller stature, picked up a rock that was beside him and use [sic] it to punch the deceased hitting him in the cheek.
23. 	Where counsel wish to introduce facts relating to the offence which are not contained in the Summary of Facts the proper course is to find out whether the prosecution agrees to amend the Summary accordingly. If the prosecution does not so agree there can be a disputed facts hearing under s 17 of the Sentencing Act 2016. 
24. 	That course was not followed in the present case. However, the account given by Ms. Lui was not disputed by the prosecution and is not inconsistent with anything in the Summary of Facts. It is consistent with the pre-sentence and autopsy reports. They confirm the respective ages of 25 and 31, the fact that the respondent had been a sickly youth, and the description of the deceased as “well developed”. 
25. 	We accept that in addition to the acting in defence of another there is also likely to have been an element of self defence. Neither of those two defences could excuse the two punches after the deceased hit the ground. Even there, however, some latitude can be allowed for acts done in the heat of the moment to meet the threat which the deceased appeared to pose. 
26. 	Where the legal elements of either defence of another or self defence are satisfied there is a complete defence under s 17 of the Crimes Act 2013. The respondent has not suggested that either defence would have succeeded in this case. He pleaded guilty to a charge of manslaughter. However, the fact that he was motivated by the plight of his sister, and seemingly the risk he faced himself, is a powerful factor when it comes to sentence. In our view it justifies a starting point of half the seven years that would otherwise be appropriate. That starting point is reinforced by the fact that the respondent tried to help the deceased after he was hurt.
27. 	In her sentencing analysis the Judge took four and a half years as her starting point. She then included defence of another among a series of deductions for mitigating circumstances. Strictly speaking we would see defence of another as one of the circumstances of the offending. It would be usual to arrive at a starting point based on the circumstances of the offending before turning to personal matters in mitigation but nothing turns on that in this case. The Judge deducted one year for defence of another.  That left her with three and a half years for the offence itself before turning to matters in personal mitigation. We have arrived at a starting point for the offence itself by a different route. However, we accept that in the very special circumstances of this case three and a half years was not outside the range available to the Judge. 
28. 	Mr. Retzlaff did not take issue with the Judge’s approach to matters in personal mitigation. They effectively reduced the sentence from three and a half years to one year. 
29. 	It must be emphasised that one year’s imprisonment was a merciful sentence at the lowest end of the range available to the Judge. We are not prepared to interfere given the very special circumstances of this case. However, seven to nine years remains a useful starting point for manslaughter where the death was caused by the application of a rock to the head. 
30. 	No submissions were offered challenging the concurrent sentence of 2 months’ imprisonment for being armed with a dangerous weapon.
Result
31. 	The appeal is dismissed. 

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE CLARKE