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Police v Kamilo [2024] WSSC 57 (7 June 2024)

IN THE SUPREME COURT OF SAMOA
Police v Kamilo [2024] WSSC 57 (07 June 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

VISESIO KAMILO male of Palisi and Fa’atoia.

Defendant

Counsel: H. Apisaloma for prosecution
K. Koria for the defendant

Sentence: 07 June 2024

SENTENCE

1. The defendant has pleaded guilty to a charge that at Palisi on 24 October 2021 he did by an unlawful act namely assault cause the death of Lolesio Siliato a male 38 years old of Palisi thereby committing the crime of manslaughter.
2. As this court also sits as a Coroners Court I make the Coronial Finding that the deceased in this matter the said Lolesio Siliato a male 38 years old of Palisi, died on 24 October 2021 at Palisi from severe head injuries caused by the defendants assault. I further make a finding that alcohol played a part in this offending.
3. The agreed summary of facts from the Police says the defendant is a 51 year old male of Palisi and Fagaloa married with children, at the time of the offending tausi aiga and was a ‘leoleo sa’ for Palisi.
4. On Sunday, 24 October 2021 at 8:00 am in the morning the deceased and some companions were engaged in a loud drinking session. Because of their disturbance of the peace the Police had to be called twice to warn them. The defendant does not seem to have been present at that time but around 6:00 pm in the evening he became aware of this session and the rowdy “le mafaufau” behaviour of the deceased and his friends.
5. He became angry and armed himself with a steel bar and went in search of the deceased and the party goers. He found the deceased asleep in his house, woke him up and scolded him. The summary says the deceased tried to apologise but the defendant proceeded nevertheless to assault him. He hit him twice on the head and once on the shoulder with the steel bar.
6. The deceased collapsed and the defendant left the house. Relatives of the deceased took him to the hospital but he was pronounced dead on arrival. The cause of death as per the doctor’s report to the Coroner was “traumatic brain injury secondary to assault”. Incident was reported to the Police and the defendant was apprehended and interviewed accordingly. He was originally charged with murder but on trial day this charge was withdrawn and substituted with a charge of manslaughter to which he pleaded guilty.
7. The defendant is no stranger to the law. At the time he committed this offending he was 6 months into a term of supervision for grievous bodily harm and armed with a dangerous weapon.
8. The courts give chances to offenders in appropriate cases and spares them from prison. These opportunities should be used wisely. And those who reoffend after being given such a penalty should be prepared to face the consequences.
9. The maximum penalty for manslaughter is life in prison because it is a serious offence involving the taking a human beings life. I accept Visesio that on the day in question the deceased may have been behaving badly but that was no justification for you to assault him in a violent manner with a steel bar. The duty of a ‘leoleo sa’ does not extend to the power of life and death.
10. The courts sentence must send that message to the defendant and the community. As well as a message that golden chances given by the courts are to be taken advantage of and wisely. Sentence must also hold the defendant accountable for his actions and serve to condemn violence of this kind.
11. If this were an unprovoked attack I would have started sentence at the 8 years in prison suggested by prosecution, upgraded to 10 years because of the use of a significant weapon to effect a violent attack. However it is clear from the summary of facts that the assault was provoked by the deceased’s behaviour on a Sunday. Behaviour which is detailed in the pre-sentence report.
12. Consequently I will start sentencing not at 10 years but at 6 years in prison upgraded to 8 years to reflect the fact that the defendant was serving a term court ordered term of supervision for violent offending using a weapon when he committed this offence. From that start point the defendant is entitled to deductions for mitigating factors. He is not however a first offender and given his history he does not qualify for a previous good character and background deduction.
13. Although he submits an ifoga and reconciliation has been effected it is clear from what I have read in the Victims Impact Report that this was not done in the proper manner. In the Victim Impact Report the deceased’s wife said the following:
    • “O le taimi nei o lea ua matou toe nonofo ma nisi o le fanau i lou aiga i Vaitele-uta, a’o le tinā o Lolesio ia Iacinta Lagaaia lea sa ia faailoa mai se tulaga e uiga i le o’o atu a le aiga o le o lo o molia.
    • Sa faatoā oo atu nisi o le aiga o le o lo o molia nei i le 2 vaiaso taluai, ae lei faia le Aso Sa o Tinā, talu mai le aso ma le tausaga sa maliu ai Lolesio. Sa faailoa mai e le tinā lona faateia i le leva ona maliu si ana tama a’o lea faatoa iloa atu le aiga o Lolesio.
    • O le o’o atu e le’o se ifoga sa fa’alalolalo atu le loomatua ma le toeaina na o atu ai ma le faaupuga e faapea, e faamāmā ai se faasalaga. Sa faailoa mai foi e le tinā na’o le $1,500 le tupe sa tuuina atu peita’i sa toe faafo’i ai le $200 ae tuu na’o le $1,300.
    • O le taimi umi lea talu na maliu Lolesio faatoa iloa ua oo atu nisi o le aiga o le o lo o molia nei e faatino se tulaga faapea. Ae ou te mautinoa e le’o se ifoga, pe a fua atu i le uiga o se ifoga i le aganuu a Samoa. Ae tuuina atu lenei lipoti mo le o loo aafia mo le silafia ai e le mamalu i le fa'amasinoga.”
14. Clearly this so-called ‘ifoga’ was an attempt to lessen the courts punishment on the defendant. This is not acceptable, it is contrary to the spirit of remorse for the offending and it is counter to our ‘tu and aga Fa’a-Samoa’. Our custom and tradition is not to be abused in this fashion. Such desperate last minute attempts must be soundly condemned and rejected. There will be no deduction for ifoga or reconciliation.
15. The only mitigating deduction available to you Visesio is for your guilty plea when charges were finalised. Because that plea has saved the courts precious time and resources. I will give you full credit for that of one-quarter deduction from the balance of your sentence. In other words a deduction of 2 years, leaves 6 years in prison.
16. On this matter Visesio you will be convicted and sentenced to 6 years in prison, remand in custody time to be deducted.

SENIOR JUSTICE NELSON