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Police v Misili [2012] WSSC 83 (16 November 2012)

IN THE SUPREME COURT OF SAMOA

Police v Misili [2012] WSSC 83

Case name: Police v Misili

Citation: [2012] WSSC

Decision date: 16 November 2012

Parties: Police and Faaiuga Misili and Faatonu Pene

Hearing date(s): 1, 2, 3 May 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order:

Representation:
Precious Chang and Tanya Toailoa for prosecution
Rosella Papalii for 2^nd defendant
Katopau Ainuu for 3^rd defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Nepa v Attorney General,
Attorney General v Godinet,
Whithers v R (1925) 25 SR (NSW),
Postiglione (1997) 189 CLR 249,

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE

Prosecution

AND:

FAAIUGA MISILI female of Levi Saleimoa and FAATONU PENE male of Alamutu Levi Saleimoa and Siufaga

Defendants

Counsel:

Precious Chang and Tanya Toailoa for prosecution

Rosella Papalii for 2^nd defendant

Katopau Ainuu for 3^rd defendant

Sentence: 16 November 2012

S E N T E N C E

1. As a result of a defended hearing the two defendants Fa’aiuga Misili and Fa’atonu Pene were found guilty of the crime of manslaughter by the panel of assessors. The third defendant Gafa Taafuli pleaded guilty and a warrant of arrest issued for this arrest due to his failure to appear for sentence.
2. Fa’aiuga is a 39 year married woman of Saleimoa. She has 3 children. She is a first offender. She told the probation service that reconciliation with the family of the deceased has not been performed as she maintains her innocence to the offence.
3. Faatonu is 30 years old, has a wife and they have 3 infant children. He is also a first offender. Faatonu is described in the pre-sentence report as a devoted family man not only to his wife and children but to the extended family as well.
4. Testimonials attached to the probation reports of both defendants speak highly of both of them in their involvements within the village and church affairs.

The Offence

5. On the morning of the incident the noise of a squealing pig attacked by dogs caused the deceased to run from his home towards the scene of the attack. Three men of the same village also went to the scene and saw the deceased threw rocks at the dogs.
6. The two defendants Faaiuga and Fa’atonu were already at the scene when the deceased arrived. Fa’aiuga the owner of one of the dogs, or some of them, was angry with the deceased. She scolded and swore at the deceased. She called to the deceased:

“O le a le mea e ai ai fua kae o maile.”

7. The deceased then walked back to his home. At that time Faatonu ran after the pig which was heading another direction. The three village men saw Fa’atonu returned to the scene a short time after. The same three men did not see the third defendant Gafa at the scene because Gafa was not there.
8. Gafa who also heard the squealing pig was also walking towards the scene as the deceased was walking back to his home. Gafa called to the deceased. He then punched the deceased on the jaw. At that time Gafa told the court the two defendants Fa’atonu and Fa’aiuga joined in the assault.
9. Gafa said Fa’aiuga struck the deceased on the shoulder twice with a stick. She also kicked him on the side of the stomach about 4 times.
10. Gafa also told the court Fa’atonu kicked the deceased on the back. In his police statement Fa’atonu told the police he stomped on the deceased’s stomach.

The Post Mortem Report

11. Minor injuries consisting of small bruises were seen on the head and face. The largest bruise measured 1 ½ inches x 1 ¼ inches and was situated over the forehead between the eyebrows.
12. Two minor abrasions were spotted over the right cheek and over the pinna of the left year.
13. Multiple bruises and abrasions were found on the chest region.

Cause of Death

14. Death in the opinion of the pathologist was due to heart failure as a consequence of ventricular arrhythmia as a complication of valve thrombosis.

“It was a case of natural death in the sense that it was a natural response of the heart to the chest trauma.”

15. The pathologist report and the testimony of Doctor Fiu acknowledged the deceased underwent an open heart operation in 2000 in New Zealand and was required upon his return to attend the hospital regularly for follow up care and to take blood thinning medication, Warfarin, for the rest of his life.
16. Although the deceased defaulted in his regular visits to the hospital and although there was indication of the deceased not taking warfarin for a long time, both the pathologist and Doctor Fiu were of the opinion that the cause of death was from a sudden arrhythmia resulting in cardiac arrest.
17. The sudden arrhythmia according to the pathologist report was connected to the activity which caused injury to the chest. It was unknown to the pathologist that the deceased ran from his house, a distance of more than 50 meters, to where the dogs were attacking the pigs. He then threw a rock at the dogs, the impact of that rock on the dogs was significant to render the pig to run away. The deceased also appeared angry.
18. Doctor Limbo who was informed of the fact that the deceased ran from his house and was also probably anxious if not angry expressed the view that the running could have sparked the arrhythmia.
19. What is beyond dispute is that the injuries sustained by the deceased did not cause his death.

Prosecution Submissions

20. It is contended by the prosecution that the Court of Appeal in Nepa v Attorney General (7/5/2010) gave as guideline a starting point in sentence of 10 to 12 years for the crime of manslaughter in ordinary cases involving a group of assailants and an unprovoked attack.
21. The prosecution submitted that the Nepa guidelines should be followed and a commencement point of not less than 12 years should be adopted.
22. Commencement period suggested is based on the unprovoked nature of the assault, the deceased medical condition which should or ought to have been known by the defendants, the conduct of the defendants after the assault and the prevalence of the offence.

Discussion

23. To adopt the commencement period of not less than 12 years as submitted by the prosecution would in my view tantamount to ignoring the Nepa guidelines which clearly referred to cases at the top level of the scale where the assailants acting in concert, brutally assaulted the deceased and resulted in death.
24. The Nepa guidelines as the Court of Appeal clarified in Attorney General v Godinet (23/8/11).

“were never intended as a straight jacket to preclude the application of flexible justice to the individual case.”

Indeed the same court acknowledged the commonly accepted notion that the crime of manslaughter varies widely in culpability and sanction. As street CJ observed in Whithers v R [1925] NSWStRp 38; (1925) 25 SR (NSW) 382 at 397:

“There is no offence in which the permissible degrees of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty.”

25. In respect of the defendant Faaiuga the only evidence which implicated her was the testimony of the principal offender Gafa who came to the scene after Fa’aiuga had scolded and swore at the deceased for throwing a rock at her dogs. As the deceased was walking away Gafa felled the deceased with a punch. He continued to assault on the ground.
26. Fa’aiuga then joined in the assault by striking the deceased on the shoulder twice with a piece of wood and punching the side of the stomach.
27. The post mortem report showed no injuries to either shoulder of the deceased or to the side of the stomach.
28. Gafa gave three written statements to the police. On the 28^th January 2009 he told the police that it was Fa’aiuga alone who assaulted the deceased with a stick by striking him on the back of neck which caused the deceased to fall facing downwards. The very next day he told the police in another written statement that it was him alone who assaulted the deceased. Eight days later in another police statement he said Fa’aiuga joined after he had floored and punched the deceased. Fa’aiuga punched the face and the side of the deceased.
29. The defendant Fa’atonu’s involvement came from his police statement and Gafa’s testimony as outlined in paragraph 10 above. He could not have kicked the deceased on the back as Gafa testified because the deceased was facing upwards. No injuries were found on the back of the deceased.
30. The assault would not have occurred if the principal offender Gafa had not arrived and punched the deceased who was walking away after being scolded and sworn at by the defendant Fa’aiuga. Defendant Fa’atonu was in the meantime running after the pig.
31. The culpability of the two defendants cannot be said to be in the same category with the assailants in Nepa and Godinet. At the same time it cannot be ignored that both defendants joined in the assault when the deceased was lying on the ground. The resulting injuries to the face and chest could not be classified as serious.
32. In my view it would be unsafe and dangerous to assume that the two defendants knew of the deceased’s medical problem as contended by the prosecution. The conduct of the two defendants after the assault and their indifference to rendering assistance was probably due to the fact that no serious injuries were inflicted and the possibility of death was never entertained. At the same time it cannot be ignored the deceased was on the ground when the assault continued.
33. Although the primary function of sentence is to protect the community, the court must at the same time act with an appropriate measure of mercy as the circumstances justify.
34. The degree of involvement of the two defendants should be reflected in the appropriate sentence. In Postiglione (1997) 189 CLR 249, the High Court of Australia considered the relationship between the totality principle and the disparity principle. It determined that a co-offender could have a justified grievance if his more culpable co-offender failed to receive a longer sentence.
35. Taking of a life is naturally considered by the community as very serious and should be confronted with severe measures. The arrhythmia with resulted in the cardiac arrest resulting in the death of the deceased could have been sparked by the anxiety of hearing the squealing pig attacked by dogs, the running and throwing of stone. The assault which followed sealed it.
36. The circumstances surrounding the assault, the nature of the assault, the degrees of involvement of the two defendants, their previous impeccable conduct, their ages and testimonials attached to the probation reports attesting to their involvement in family, village and church activities, in my view does not justify imposing a custodial sentence. The sentence must however reflect the seriousness of the offence.
37. In my view also, not only should the two defendants be dealt with differently from the principal offender, the circumstances also persuade me to treat the defendant Faaiuga more leniently than the defendant Fa’atonu. The reason for that is that she was found guilty principally on the uncorroborated evidence of the principal offender whose testimony differed from the three different statements he gave to the police. And secondly the autopsy findings revealed no injuries to the shoulders or side of the stomach of the deceased which the defendant Fa’aiuga was supposed to have struck with the stick and kicks.

Sentence

(i) The defendant Fa’aiuga is convicted and asked to come up for sentence within 12 months. She will not be called upon if she does not re-offend.
(ii) The defendant Fa’atonu is convicted and placed on probation for 12 months on the following conditions:

• (a) he will perform 100 hours community work.
• (b) he will attend any course on anger management or any other course or programme as suggested by the probation service.
• (c) he will through the probation service pay prosecution costs of $2,000 by monthly payments of $250 commencing 30^th November 2012.
  

JUSTICE VAAI