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Police v Tailo [2024] WSSC 60 (5 August 2024)

IN THE SUPREME COURT OF SAMOA
Police v Tailo [2024] WSSC 60 (05 August 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TAALA TIASI TAILO male of Vaitele fou and Pu’apu’a Savaii

Defendant

Counsel: F. Ioane for Prosecution

I. Sapolu for the defendant

Sentence: 5 August 2024

SENTENCE

Charge

1. On the 5th June following a two day trial, the panel of assessors by a unanimous verdict found you guilty of the alternative charge of manslaughter. You now appear for sentence.

Offending

2. [2] The evidence was that from the evening of the 4th April 2018 into the early hours the following morning, you were drinking with the deceased and a mutual friend named Laki at his place. The party drew the attention of the neighbours who contacted police to report and seek assistance to control the noise. The deceased became disorderly and was heard swearing before being chased from the party. You were also heard saying to Laki “aua le popole ... pe alu a i le fale, ga o lo’u alu aku a so’a i le kaavale”.
3. [3] Meanwhile, the deceased continued swearing as he left the party and walked towards the main road away from Laki’s house. Shortly after, you left Laki’s place in your white Rav4 and drove towards the same direction the deceased was headed. About 100 metres from the entrance to Laki’s property, you struck the deceased with the vehicle before reversing all the way and turned into Laki’s property and called out to him “ ... la ua oti, la ua taatia i o”
4. [4] Tagaloa, Laki and a few others rushed to where the deceased was lying and found him injured on his chest, back and head. He was pleading for help. FESA was called, they took the deceased to hospital. The doctor’s report to the coroner shows he arrived at hospital around 2.30am.

Injuries

5. [5] On examination he was found to have multiple lacerations to his head, chest, back and left leg. An x-ray revealed he had multiple rib fractures, a fractured pelvis and compound fracture on his left leg. He was pronounced dead 2 hours later.
6. [6] The post mortem examination identified the following injuries:
   • (i) A broken leg consistent with a primary strike point with something such as a motor vehicle;
   • (ii) Severe chest, abdominal and head injuries consistent with being run over by a higher vehicle than a standard car or being secondarily run over;
   • (iii) Injuries included multiple broken ribs with bleeding around and into the lungs, tears of the lining of the liver and spleen with bleeding into the belly cavity, some bleeding over the surface of the brain and grazes over the trunk, scalp and face.
7. [7] The cause of death was multiple injuries sustained in a collision with a motor vehicle.

Victim

8. [8] The deceased was a 43 year old male of Nuu fou. His sister Potufou Lavea in a VIR says he was the only male of the siblings. Though lived away, he was always assisting by providing them food and money. They were shocked to learn of their brother’s death and continue to miss him for the role he played in supporting their family.
9. [9] She says no ifoga was presented by your family. Neither was there assistance or contribution from your family to the deceased’s funeral expenses.

Aggravating Factors

10. [10] I consider the following aggravating features of your offending:
    • (i) Use of vehicle as a weapon to commit the assault;
    • (ii) Vulnerability of the victim – he was intoxicated and walking away but you followed him in your vehicle;
    • (iii) Failure to render assistance - after hitting the victim with the vehicle, you did not render assistance but reversed and informed others that he was on the road dying;
    • (iv) Impact – it caused the victim serious and multiple injuries that led to his death. The impact on his family must also be considered.

Mitigating Factors

11. [11] I consider your personal circumstances. You are 57 years of age and separated from your partner with whom you have a 6 year old son. You have had a reasonably good education, a qualification in maritime and worked as a sailor on the Italy – MSC cruise ship. You have also worked as an electrician with Fletcher and Vaitele Oil Company and now operate a mechanic workshop in Savaii. There are references by the pulenuu of Puapua, Taala Meki; a matai of your family, Mamea Uilaia; your uncle Taala Muaulu; and friends and fellow members of your church Falaniko and Sese Iva. They speak of you as hardworking, reliable and a committed member of your family and church. You are a first offender.

Discussion

12. [12] The maximum penalty for manslaughter is life imprisonment. The loss of a human life is a very serious matter. Depending on the circumstances of each case, the court has imposed varying sentences in manslaughter cases, from long imprisonment terms to non-custodial sentences of supervision. But it must never lose sight of the gravity of the crime.
13. [13] It is important that an offender’s culpability is assessed in light of the unique circumstances of his own case. I consider as had the Court in Nepa v. Attorney General [2010] WSCA 1 and R v. Raipira [2003] NZCA 217) that “culpability is higher in cases where manslaughter results from intentional harm. The sentence in such cases must reflect the need for deterrence of intentional conduct which risks serious harm or death.”
14. [14] In this case, you used a vehicle as a weapon to pursue the victim who was intoxicated, walking away and already at least a 100 metres from where you were. You intentionally drove at him and struck him, before reversing without rendering any assistance and calling out that he was lying on the road dying. Prior as the victim was leaving and swearing, you were heard saying ‘aua le popole, pe alu a i le fale ou ke alu aku a so’a i le kaavale’. Your conduct was deliberate and most disturbing. In those circumstances, I assess your culpability to be at the higher end of the scale.
15. [15] Prosecution submits that an appropriate start point is between 15 and 18 years. On the other hand, your counsel submits that 3 years is appropriate. That is too low in the circumstances of your case.
16. [16] I have not been referred to any manslaughter sentencing authority where a motor vehicle was used to deliberately inflict harm. Reference has been made by counsel to Iosua v Attorney General [2014] WSCA 5. That is a case of motor manslaughter and for that reason does not apply to the circumstances of yours. As the Court of Appeal acknowledged at paragraph 36:
    • “Sentencing precedents for intentional assault with unintended fatal consequences is another possible reference point in manslaughter cases in general but the analogy is even more distant for the purposes of the present case. In the present case there is no equivalent to deliberate violence inflicted on the victim.”
17. [17] In saying that I have considered the circumstances of each case cited by both counsel. I adopt as the appropriate start point 12 years. I make these deductions – for your personal circumstances, I deduct 12 months. For the testimonials and your previous good character, I deduct another 12 months. For the lengthy period of time that you have been on bail before trial, a total period of 6 years, I deduct a further 12 months.
18. [18] I do not make any deduction for provocation. The victim did not inflict any violence and there is no evidence that his swearing and insults were directed at you. He was already leaving the party and well away from where you were before you decided to pursue him. Your conduct was unprovoked and completely disproportionate in the circumstances.

Result

19. [19] On the one charge of manslaughter, you are convicted and sentenced to 9 years imprisonment.

Coronial Finding

20. [20] Lastly I issue the Coronial Finding to certify that Ray Taituave, a 43 year old male of Nuu fou died at Tupua Tamasese Meaole Hospital on the morning of 5 April 2018 as a result of multiple injuries sustained in a collision with a motor vehicle. I further confirm that the driver of the vehicle involved has been dealt with according to law.

JUSTICE ROMA