Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Police v Amituanai [2018] WSSC 28 (1 March 2018)

SUPREME COURT OF SAMOA
Police v Amituanai [2018] WSSC 28

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SEFO AMITUANAI male of Lotofaga-uta.
Defendant

Counsel:
F Ioane for prosecution
R Faaiuaso for defendant

Sentence: 01 March 2018

SENTENCE

1. The defendant has pleaded guilty to a charge of manslaughter which carries a maximum penalty under law of life in prison. The defendant is one of two men charged in this matter but his co-defendant has pleaded not guilty and his trial is scheduled for next month.
2. The offence of manslaughter has been described by the Court of Appeal in the well-known case of Nepa v Attorney General [2010] WSCA 1 as varying infinitely in degree and circumstance such that the exercise of “so large a discretion is called for in determining the appropriate penalty.” Every case is very much dependent on its particular facts. But as the court has often stated the loss of a human life is a very serious matter and this must never be lost sight of.
3. The facts here are set out in the uncontested police summary of facts which says the defendant is a 22 year old male of Lotofaga-uta, married with one child, lives at Faleapuna with his partner. On 07 April 2017 he travelled to Lotofaga to his family to obtain taros for the Sunday umu and in the evening engaged in a drinking party at his family’s house with his uncle and the co-defendant who both live at Lotofaga-uta.
4. About 10:00 pm that night the deceased arrived at the party drunk and carrying a machete. He joined the party and became what the police summary of facts describes as “agitated” when the men did not give him a cigarette or anything more to drink. He also asked the co-defendant where the defendants sister was sleeping. Not surprisingly, this angered the defendant. The deceased was also according to the police summary of facts “swinging the machete around” and “threatening the group.” Unwise actions to say the least given where the party was occurring.
5. The deceased was then taken to the road by the co-defendant and the defendant grabbed a piece of poumuli and followed. Or possibly he picked up the piece of poumuli while following the men. What is clear is he followed the co-defendant and the deceased to the road in possession of this piece of timber.
6. On the road the inevitable occurred, the defendant and co-defendant confronted the deceased and the co-defendant punched the deceased. The account continues from the defendants written statement to the police:

“Ku’i loa e Kose i le taimi lea, sa paū mai luma ae toe sapo e Kose ma o le taimi lea na o’u se’ieseina ai loa ma le sapelu ae ta i le laau lea sa o’u alu atu ma a’u. Ou te iloa o lona ōō po’o lona manava lea sa tau ai la’u tā. Na paū Peni i luga o le auala i le taimi lea ma faapea loa ona maua ta kikiina ma tatu’i ma Kose ae o loo ta’atia lava i luga o le auala. Ua o’u le manatuaina pe fia ni a’u tu’i ma ni kiki ona ou te ōnā. Sa tamo’e ia John lo’u uncle pei e foliga e fia o’o fo’i lona lima ia Peni ae o’u fai iai e aua. Sa matou si’isi’iina i tua ma le auala ae ua taagulu i le taimi lea.”

7. The deceased was obviously at this point unconscious from the assault but these men left him lying by the side of the road. And according to the defendants statement they went back and resumed their drinking “sa matou foi i tua o le matou fale ma toe fa’aauau le matou inuga.” At some stage they returned to where the deceased was lying and found him still unconscious but snoring and decided to try and take him to his house. They lifted him to his house but because he became too heavy they again deposited him on the side of the road. Then they all went home. No thought was given to telling the deceaseds family about what had happened to him or the deceaseds whereabouts and his condition.
8. The deceased was only discovered the next day by a relative passing by and by that time he was dead. These are quite callous actions and indicate a failure to render any assistance to the deceased that they had just assaulted.
9. Post-mortem report from the pathologist shows death was due to fractures of the occipital or back area of the skull from blunt force trauma. This caused bleeding into the brain and eventually death. It is not known which of the two men, the defendant or the co-defendant caused the skull fractures, but that is immaterial. They both initially assaulted the deceased, the co-defendant by punching him the defendant by hitting him with the poumuli and then joined in kicking and punching the defenceless deceased while he lay on the ground. Each defendant was accordingly aiding and abetting the other and is liable in law for the actions of the other.
10. On these facts the prosecution based on the case of Police v Tupuola [2017] WSSC 60 have suggested a start point of 10 years in prison. They also seek an uplift of 2 years to reflect the use of a weapon and for the failure to render assistance to the plainly unconscious deceased. That means therefore they are suggesting a 12 year start point for sentence.
11. I do not propose to canvass the facts of Tupuola which was also a case of an assault by two defendants on an intoxicated person causing his death. But that was a case that did not involve the use of a weapon but did involve as noted by the trial judge “stomping and kicking” of the face and upper body of the deceased as he lay defenceless on the ground. My brother judge Justice Clarke also referred to the Court of Appeal decision in Nepa where the Court of Appeal held that in ordinary cases involving an unprovoked attack by a group causing death the starting point ought to be in the range of 10 to 12 years in prison. In Tupuola the court recognized this was a “group” of only two defendants and that the attack was initiated by the deceaseds actions and to that extent it was “provoked”. The court therefore adopted a start point of 8 years.
12. In this case it is clear the deceaseds acts “provoked” the reaction of the defendant and his co-defendant. Considering all the circumstances of the matter including the failure to render assistance post-assault I am of the view 8 years is also the appropriate start point for sentencing. That must be uplifted to 10 years because of the defendants use of a poumuli which we all know is a very hard Samoan wood to strike the deceased with force sufficient to cause him to fall to the ground. It is relevant to that uplift that the defendant brought the weapon to the scene of the fatal assault by either bringing it from his house or picking it up along the way. Also the fact that he followed the deceased and the co-defendant to the road after the altercation at his house. It is indicative of pre-meditation and intent to make use of the weapon. Something that Sefo did not need to do because the deceased was being led away.
13. The purpose of sentencing includes holding a defendant accountable for his actions and on behalf of the community denouncing his conduct as unacceptable. Also to deter him from such future behaviour and to send the appropriate message to the general public. Especially in this case in relation to the consumption of alcohol.
14. Over the years I have said to hundreds of defendants that if you cannot drink and act responsibly it is best to leave alcohol alone. There is now a new player in this arena. The alcohol of the “cheap jet-fuel variety” referred to extensively by my brother judge in Tupuola. Where he spoke of the “significant social economic and human impact” of such alcohol. That is what was being consumed by these men this evening. The courts see the results week-in and week-out of the excessive consumption of such product by way of homicides, assaults, traffic accidents and the like. All brought on by the unregulated sale and easy availability of such products. I echo my brother justices call on the Government to expedite the Alcohol Control legislation that they have been talking and talking about for far too long.
15. From the starting point of 10 years in prison, there should be certain deductions made for mitigating factors all of which were comprehensively canvassed by Mr Faaiuaso in his submissions. The first is the defendants clean and good record of service to his family, nuu and ekalesia. Testified to by his Bishop as he is an adherent of the Latter Day Saints faith as well as the pastor of his wifes church at Faleapuna which he attends. In addition I have read the testimonials from the pulenuu of Lotofaga and from his current employer Savusa Dan Meredith where he has been working for the last three months. All speak well of the defendant as do his parents and family. The defendants father who is blind appeared before the court yesterday to reinforce this and to petition for leniency for his son. There is no question the defendant is a person of good character and has served his family and community faithfully. He is entitled to the usual maximum deduction that can be given for these factors of 6 months, leaves a balance of 9½ years in prison.
16. The second mitigating factor is the punishment imposed on the defendant by the Alii and Faipule of Lotofaga. The Pre-Sentence Report confirms this as being substantial and has been fully provided. The law requires this be accorded due recognition, a term of 1 year will be deducted for that. Leaves a balance of 8½ years.
17. As to ifoga, there is before me some conflict. Defence counsels memorandum to the court refers to a traditional ifoga made and accepted by the deceaseds family but the Pre-Sentence Report and Victim Impact Report say the ifoga was conducted not by the defendants family but by the village of Lotofaga to the victims family. And further that it only involved three finemats “le ie o le faamagaloga” plus two “lafos.” Neither the defendant nor any member of his family was present or took part in the ifoga. Neither was any assistance provided by the defendant or his family to the funeral of the deceased. It is clear from the Victim Impact Report filed the victims family remain aggrieved with the situation.
18. It is important to reiterate the Court of Appeals observations in Nepa in this regard. Where it said that “ifoga is a public statement of remorse and the seeking of forgiveness valuable to both custom and religion. Its value lies not with ritual and expense but in a deeper expression of guilt, remorse and contrition.”
19. For a defendant to receive from the court the benefit of a deduction for ifoga there must be involvement by him/her in the process either personally or through family representatives. There is no evidence of that here. I cannot therefore give the defendant full benefit in mitigation for the carrying out of the ifoga but I will deduct 6 months from the balance of his sentence in recognition of the traditional customary process that the village conducted on his behalf in relation to the victim and his family. I am willing Mr Faaiuaso to revisit this issue if it can be shown conclusively that the defendant and/or his family played a role in the village ifoga. As things presently stand, that 6 months deduction, leaves a balance of 8 years in prison.
20. The final mitigating factor in your favour Sefo is of course your guilty plea. That is a significant factor because it has saved the valuable time of the court and the State and its limited resources and has spared the deceaseds family the grief of reliving the loss of a loved one. I give you the usual deduction of one-quarter of sentence which is a period of 2 years, leaving a balance of 6 years in prison.
21. No further deductions or adjustments can be made to your sentence Sefo. On the charge of manslaughter you are convicted and sentenced to 6 years in prison, any time you have spent in custody is to be deducted from that term.
22. As this Court also sits as a Coroners Court I issue the Coronial Finding to certify that Peni Fausia, a 26 year old male of Vaigaga died at Lotofaga-uta on the night of 07 April 2017 as a result of fatal head injuries sustained in an unlawful assault. I further confirm that alcohol was involved in this offending and the perpetrators are being dealt with according to the law.
    

JUSTICE NELSON