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Police v Niue [2023] WSSC 7 (1 March 2023)

IN THE SUPREME COURT OF SAMOA
Police v Niue [2023] WSSC 7 (01 March 2023)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TALAITAU NIUE male of Satitoa, Aleipata

Defendant

Counsel: I. Atoa for Prosecution

A Matalasi for the Defendant

Sentence: 01 March 2023

S E N T E N C E

1. Talaitau Niue appears for sentence on the charge of manslaughter which penalty is maximum life imprisonment.^[1]

The offending

2. On the evening of Monday 9 August 2021 (fathers’ day), Talaitau and two other men from his village were drinking alcohol (Rover Vodka) at one of the men’s house when the deceased, Sanele Mikaele, joined. Sanele was said to be already drunk when he joined Talaitau and his friends. Talaitau in the Pre-Sentence Report (“PSR”) relayed that after some time Sanele became troublesome and they decided to call it a night. Sanele was first to leave and shortly after Talaitau also left. Talaitau’s house is on the same road but further on from Sanele’s house. Talaitau would have to walk past Sanele’s house to get to his house. Accordingly, both the Summary of Facts (“SoF”) and PSR were consistent with the following facts:
   • Sanele was waiting for Talaitau whether in front of his house or on the main road;
   • Sanele was obviously angry at Talaitau. SoF says that Sanele was swearing at the defendant. Talaitau in PSR said that Sanele called out to him and walked over to meet him looking angry;
   • Sanele threw a rock and hit Talaitau on the chest when they were only a few meters apart;
   • Talaitau retaliated by punching Sanele;
   • Sanele fell on to the tar-sealed road;
   • Talaitau further punched Sanele twice on the face while he was on the ground.
3. Both Sanele and Talaitau are from the same village. Sanele was 52 years old and Talaitau was 39 years old at the time of the offending, married with three children.

The injuries

4. Sanele Mikaele sustained the following injuries:^[2]
   • Crushed jaw,
   • Several missing teeth,
   • Swelling to his cheeks, and
   • Lacerated tongue.
5. Sanele was transferred to Motootua Hospital on 10 August 2021 where emergency surgery was carried out. There was a lot of blood clots in the brain as well as brain swelling intra-cranially which he died from on 15 August 2021.^[3]
6. A post mortem was carried out by Dr James J.V.P. Kalougivaki where the cause of death was confirmed to be from severe intra-cranial haemorrhage to the brain caused by severe traumatic head injuries.^[4]

The Prosecution’s submissions

7. The Prosecution seeks for a custodial sentence with a starting point of 8 years’ imprisonment. The prosecution identified the following as aggravating factors:
   • (i) Violence associated with alcohol;
   • (ii) Loss of human life;
   • (iii) Vulnerability of the deceased when he fell on to the tar-sealed road and the defendant punched him twice;
   • (iv) Seriousness of the offence;
   • (v) Severe injuries sustained; and
   • (vi) Impact on deceased family.
8. I find three of the aggravating factors to be more relevant – injuries sustained, loss of human life and vulnerability of the deceased when he was on the ground. Violence is always or at most times associated where alcohol is involved and it is always a serious offence when someone dies therefore, it is not a separate aggravating factor from loss of life. The prosecution also referred to some sentencings of the Court on manslaughter.

Defense Counsel Submissions

9. Defense Counsel seeks for a non-custodial sentence for the maximum supervision term of 2 years to be imposed on the following grounds:
   • (i) High level of provocation by the deceased – The deceased initiated the confrontation when he threw a rock at the defendant hitting him on the chest.
   • (ii) Early guilty plea;
   • (iii) First Offender – Defendant disputed his conviction record of an assault charge saying that this was dismissed by the Judge for lack of evidence (no witnesses for the Prosecution turned up). That his traffic offences are not in the same vein or category with the offence of manslaughter;
   • (iv) Reconciliation – His family had performed an ifoga to the deceased’s family and was accepted;
   • (v) Village Penalty – He had been imposed with a village penalty and had already carried out his penalty to the village;
   • (vi) Remorse - The defendant is truly remorseful.
10. Counsel also refers to a number of sentencings of similar circumstances.

Discussion

11. The offence of manslaughter has drawn the most varying in sentences ranging from non-custodial to custodial to terms of imprisonment. It is therefore not possible to set a tariff or a starting point that applies across the board to all cases of manslaughter. The starting point for each case must depend on its own unique set of circumstances.
12. The circumstances of the present case continues the trend of alcohol and violence resulting in loss of life; especially so with the consumption and availability of cheap alcohol, in this case Rover Vodka locally manufactured by Chinese. At the time of this sentencing the Government has imposed a ban on Chinese locally manufactured spirits. Since the ban, Police have noticed a huge drop in alcohol related crimes. I am in full support of the ban on these locally cheap manufactured spirits if it leads to more lives being spared.
13. It is clear from the summary of facts and pre-sentence report that the deceased was the aggressor. He initiated the confrontation with the defendant when he swore at and then threw a rock hitting the defendant on the chest. This could have gone bad the other way. The defendant would have died and the deceased would be facing multiple charges which would include murder for the use of a weapon in the form of a rock. This did not happen. The defendant in the pre-sentence report said that the deceased not only threw the rock at him but at the same time jumped at him and he reacted by punching him causing the deceased to fall on to the tar-sealed road. The defendant then should have left instead he delivered two more punches while the deceased was still on the ground. The defendant was nevertheless provoked and tempted by the deceased.
14. The defendant’s family performed a ‘ifoga’ and was accepted by the Sa’o of the deceased’s family. The deceased sister in the Victim Impact Report is still coming to terms with the loss of her brother. She is indeed angry with the defendant for the loss. The defendant was also penalized by the village.
15. There are written testimonials provided or attached to the pre-sentence report from the defendant’s father, Sa’o of their family, the village mayor of Satitoa, his Church Minister (Methodist) and his former employer, the Apex Solutions Company. The testimonials say that the defendant is hardworking and a good person.
16. The defendant disputes his prior conviction of assault. Even if the defendant does not have a conviction for assault, the presence of his other convictions albeit that they are not similar, nevertheless shows that he is not a person of prior good character. The Court, however is mindful of the difference in nature of the traffic offences from the present offending. The defendant entered a guilty plea. I accept that he is truly remorseful.
17. The cases referred to by the prosecutions in their submissions are mostly irrelevant except for Police v Fia Saunimaa (no citation given or sentencing itself provided). The circumstances of those cases was where a weapon was used or there was more than one person who assaulted the deceased. I therefore fail to see the basis of the starting point they recommend.
18. Counsel for the defendant refers the Court to a number of sentencings of similar circumstances which sentences vary from non-custodial in Police v Taumafai^[5] (2 years supervision), Police v Amituanai Osa^[6] (Costs of $1,800) to custodial sentences of where the defendant fell down from one punch and died. The starting points and end sentences in the cases referred to vary greatly as in Police v Vitale^[7] (3years SP to 6 months’ end sentence) and Police v Amituanai^[8] (2 years imprisonment). Counsel distinguish the present case from the cases referred to in that there were three punches delivered by the defendant therefore the circumstances are much more serious or aggravating. Counsel considers appropriate 4-5 years starting point should the Court considers a custodial sentence is to be imposed.
19. I will not refer to cases that are not provided in hardcopy if they are not properly reported. These are Police v Amituanai Osa and Police v Fia Saunimaa. In any event appropriate sentence depends on the particular circumstances of each case. No two cases are exactly the same.
20. A loss of life is always taken very seriously by the Court, and the Court in sentencing takes the surrounding circumstances of the offending into account. The Prosecution recommends a custodial sentence with a starting point of 8 years’ imprisonment. Defence Counsel seeks a non-custodial sentence for the reasons she advanced but should the Court impose a custodial sentence she recommends that a starting point of 4-5 years is appropriate. I agree.
21. In the circumstances of this offending I find appropriate the starting point of 4 years. This would not have happened if the defendant was not highly provoked by the deceased; for that I deduct 18 months. I further deduct 12 months for the person that he is from the testimonials provided, his remorsefulness, the ifoga his family conducted and for the village penalty he carried out. This leaves 18 months’, to which I give a 25% discount for your early guilty plea which shows your taking responsibility for your behaviour and validates your true remorsefulness. 25% amounts to 5 months. The end sentence is 13 months.

Conclusion

22. Talaitau Niue you are convicted and sentenced to 13 months’ imprisonment less any time you were remanded in custody.
    

JUSTICE TUATAGALOA

^[1] Crimes Act 2013, ss 92, 102, 108
^[2] Medical Report by Dr Mosiah Marumatakimanu dated 13 August 2021 (First attending doctor at the Aleipata District Hospital))
^[3] Report of Medical Doctor to Coroner by Dr Aleki Fuimaono.
^[4] Autopsy Report dated 1 June 2022.
^[5] Police v Taumafai [2019] WSSC 10 (15 February 2019)
^[6] Police v Amituanai Osa (unreported), 9 May 2019
^[7] Police v Vitale [2019] WSSC 56 (1 November 2019)
^[8] Police v Amituanai [2011] WSSC 151 (17 October 2011)