THE SUPREME COURT OF SAMOA
Police v Vitale [2019] WSSC 56

Case name: 	Police v Vitale 	
		
Citation: 	[2019] WSSC 56	
		
Sentence date: 	01 November 2019	
		
Parties: 

	POLICE v TAOFINUU VITALE male of  Asau and Falealupo 
Accused
	
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	The Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tafaoimalo Leilani Tuala-Warren	
On appeal from:

Order:	
Convicted and sentenced on the charge of manslaughter to 6 months imprisonment less time in custody.	
Representation: 	A Matalasi for the Prosecution
T Leavai for the Accused 
	
Catchwords: 	 Manslaughter
	
Words and phrases:	
	
Legislation cited:	Crimes Act 2013, section 102 and 108
	
Cases cited:	R v Raipira [2003] 3 NZLR 794
(Re v Leuta [2002] 1 NZLR 215 at p 229)
Police v Fiva [2008] WSSC 89 (28 October 2008)
	
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TAOFINUU VITALE male of Asau and Falealupo
Accused

Counsel:
A Matalasi for Prosecution
T Leavai for the accused 

Sentence: 1 November  2019

SENTENCE
1.	The accused appears for sentence on one charge of manslaughter, pursuant to sections 102 and 108 of the Crimes Act 2013 which carries a maximum penalty of up to life imprisonment. 
2.	He pleaded guilty to the charge on 1 July 2019.
The Offending
3.	According to the Summary of Facts accepted by the accused the deceased and the accused were drinking at another villager’s house on 22 December 2018. An argument started between the two as the deceased began to question the accused about his management of village matters.  As the accused was leaving, the deceased called out to the accused whether he was originally from Falealupo.  The accused returned to where the deceased was sitting which was on the brick railing of the open fale. The accused punched the deceased causing the deceased to fall onto the ground and hit his head on the floor. The accused went home. The deceased was taken to the hospital where he died several minutes after arrival. The cause of death was traumatic subarachnoid hemorrhage due to head trauma.
The Accused
4.	The accused is 55 years old, married and has 6 children. He supports his family through the plantation and his daughter’s job. He holds an oratory title and was a decision maker in the village council and the chairman of the church committee.
5.	His wife says that he is reliable and hardworking. He looks after his family but his only weakness is alcohol. She does say that the offending is out of character.
6.	His religious leader says that the accused is a prominent member of the catholic Faith in Falealupo. He holds prominent positions within the church and is highly respected. He says that the accused is a faithful and dedicated member of the church who works hard in serving the church.
7.	The pulenuu of Falealupo says that the accused serves the village and church  with honesty. He is instrumental in the village and he vouches for his character.
8.	The accused had been banished from Falealupo but can return now. The family of the accused conducted an ifoga to the family of the deceased which was accepted. The accused’s family also assisted with the funeral of the deceased.
9.	He is a first offender.
Victim Impact Report
10.	The wife of the deceased provided a victim impact report. She said she was shocked by her husband’s sudden death and she and her young children still miss the deceased. They relied on him. She says he is terribly missed within their family with their young children often speaking his name.
11.	She says she understands that alcohol was involved and hopes that this is a lesson for the accused. She has forgiven him, although he has not gone to see her and her children personally. The ifoga she understands was conducted to the sao of her family.
12.	She asks the Court for a light sentence for the accused. 
Aggravating Factors:
13.	The aggravating features of your offending are:
(a)	Your response to what the deceased said was disproportionate, you used violence by punching him;
(b)	The victim was intoxicated making him vulnerable; and 
(c)	You did not render any assistance to the deceased after punching him.
The mitigating features
14.	The mitigating factors are;
a.	The ifoga conducted and reconciliation
b.	The village penalty;
c.	His previous good character; and
d.	Guilty plea at the earliest opportunity.
Discussion
15.	Prosecution seeks a non-custodial sentence. It is rather unusual that the Prosecution has recommended a non-custodial sentence while predominantly providing authorities for ‘one-punch’ custodial sentences, and distinguishing this case from Police v Taumafai and Police v Amituanai, cases in which non custodial sentences were imposed.
16.	Defence Counsel submits that a non-custodial sentence is appropriate.
17.	There is no guideline judgment or tariff for manslaughter sentencing. In R v Raipira [2003] 3 NZLR 794, the New Zealand Court of Appeal in terms of sentencing for manslaughter stated: 
“[128]  The maximum sentence for manslaughter is imprisonment for life. This Court has emphasised that the circumstances of manslaughter vary so widely that attempts to provide guidelines according to categories risks inflexibility and would divert the sentencing inquiry from the degree of culpability in the particular case (Re v Leuta [2002] 1 NZLR 215 at p 229). Culpability is higher in cases where manslaughter results from intentional harm. In such cases, the sentence imposed must reflect the need for deterrence of intentional conduct which risks serious harm or death. Other factors such as provocation or circumstances personal to the offender which may diminish responsibility may affect culpability significantly. Sentences in other cases where the death giving rise to liability for manslaughter is a result of intentional violence may provide guidance. But the culpability of each offender needs to be assessed in the particular context.”
18.	In a similar vein in Police v Fiva [2008] WSSC 89 (28 October 2008), Sapolu CJ stated: 
“[29] Those cases show that the sentences imposed in manslaughter cases have ranged from non-custodial sentences to lengthy terms of imprisonment which reflects the wide range of varying circumstances in which the offence of manslaughter has been committed. As a consequence, it has not been possible to set a tariff sentence or starting point which is applicable across the board to all cases of manslaughter.”
19.	I have reviewed the various authorities. This case does not fall within the same category as for instance Police v Taumafai [2019] WSSC 10 which involved a great deal of provocation and one punch which caused the victim to fall onto the road and hit his head. Here the accused intentionally punched the deceased causing the fall that resulted in his death. A custodial sentence is warranted both as a deterrent not only to the accused but others who respond with violence. Punching is an act of violence. The question is the length of the custodial sentence.
20.	In determining a starting point for sentence, I note that the New Zealand Court Appeal in Murray v R [2013] NZCA 177 expressed the New Zealand approach to manslaughter sentencing involving one punch as follows:
“[9]  The Judge went on to note that, in many decisions of the High Court, a starting point in the range of three to four years imprisonment had been adopted in manslaughter cases where death had resulted from a single punch. However, as the Judge correctly observed, everything depended on the seriousness of the punch and the intent of the perpetrator. He noted that even a single blow can be extremely violent when it carries extreme force and serious injury is a foreseeable outcome even if it is not intended. In such cases, the Judge noted that higher starting points might be required. It followed that if Mr Murray had punched Mr Dawson with extreme violence, the three year starting point urged by Mr Murray’s counsel “could not begin to apply”.
…
[21]  We accept that a sentencing range of three to four years imprisonment has often been adopted as a starting point in cases where an offender causes the death of a victim by means of a single punch. However, as this Court noted in R v Tai, the starting point for manslaughter may need to be increased in cases where, as the Crown submitted in that case, culpability was higher as a result of an intention to cause really serious harm to the victim, the nature of the serious violence actually used and the fact that death resulted.”
21.	That appears to be the New Zealand manslaughter position involving a single punch. 
22.	Having considered the various domestic authorities including Nepa v Attorney General [2010] WSCA 1 (7 May 2010) and New Zealand authorities to which I have referred and taking into account the aggravating features of your offending, I consider 3 years start point for sentence as appropriate. From that, I deduct 10 months for the ifoga and reconciliation, and 6 months for the village penalty. At the age of 55, you are a first offender and have supportive references that speak of your prior good character. I deduct 10 months for your prior good character. Your guilty plea to manslaughter will be given the full benefit of an early guilty plea as the murder charge was withdrawn and at the same time you pleaded guilty to manslaughter. Four months are deducted for your guilty plea. 
Result:
23.	Accordingly, you are convicted and sentenced on the charge of manslaughter to 6 months imprisonment less time in custody.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN