Attorney-General v Mani [1994] WSCA 16; 15 1993 (31 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA
HELD AT APIA

C.A. 15/93
IN THE MATTER: of the Criminal Procedure Act 1972
AND
BETWEEN:

THE ATTORNEY GENERAL

Appellant
AND:

UATISONE MANI

Respondent

Coram: The Rt. Hon. Sir Gordon Bisson, President
The Hon. Sir John Jeffries
The Hon. Mr Justice Lussick

Hearing: 31 March 1994

Counsel: M.B. Edwards for Appellant
L. Kamu for Respondent

Judgment: 31 March 1994

JUDGMENT OF THE COURT DELIVERED BY SIR JOHN JEFFRIES

Appellant is the Attorney General against the sentence imposed on respondent of $1,000 after he had pleaded guilty to a charge of manslaughter. The ground of appeal is that it is a manifestly inadequate sentence and that it ought to be set aside and an appropriate sentence imposed to meet the criminality.

The Attorney General is able to appeal pursuant to s. 164L of the Criminal Procedure Amendment Act 1993. Mr Edwards on behalf of the Attorney General accepts the ruling of the New Zealand Court of Appeal in R v Cargill [1990] 2 NZLR 138 and R v Roeva [1990] NZCA 312; [1991] 2 NZLR 44 whereby some special restrictive principles govern appeals against sentence by the Attorney General.

Furthermore Mr Edwards accepts that for all serious criminal offending against the person of another, manslaughter embraces the widest variety of circumstances and degree of culpability in which the crime can be committed. Sentences on manslaughter cases reflect those remarks.

We turn to the facts of the offending. Respondent had been with the group at Malie where he had gone to visit his family. A house was in the course of construction and the carpenters, together with others which involved the victim Ropati Faleao who was the respondent's brother in law had a party. At about the point the party was breaking up, a disturbance erupted with Ropati running at another guest named Malo with a machete. Respondent intervened, it seems at this point as a peace maker, and was struck on the leg with the machete. Temporarily the violence subsided but respondent went into the house and grabbed a shot gun with Ropati moving around behind the house to get another machete. The two men were temporarily unarmed but respondent recovered the rifle and literally clubbed Ropati in the head with the butt inflicting severe injuries from which he died shortly afterwards. We accept Mr Kamu's point that the victim may not have been unarmed at the point of the attack by respondent but that does not have a material bearing on what we have described.

Respondent's reactions were immediately remorseful and he thereafter did all he could to help. We have no difficulty in accepting that. Respondent is now aged 27 years and has no previous record of offending. He has otherwise lived a blameless life and is regarded very highly by responsible community members whose opinions we greatly respect. There were written testimonials which were before the sentencing Judge, and are before us, which testify to the good character and standing of respondent in the community.

There can be no doubt this was a tragic incident and has affected in a very material way not only respondent himself but the wider families. With the families the matter has already been settled. The offender's family was also fined by the Village Council and the family provided the village with 5 cartons of herrings and 10 boxes of biscuits.

I have set out all that in detail because I am sure it would have very much influenced the sentencing Judge whose remarks made at sentencing are unfortunately not available to us. Under s. 8 of the Village Fono Act 1990, Courts are to take into account penalties by Village Fono.

The learned sentencing Judge imposed a fine of $1,000 on respondent after he had pleaded guilty to the charge. Some credit must be given when sentencing to a guilty plea for it is the best outward sign of true contrition.

Mr Edwards in his argument for the Attorney General recognised all the mitigating factors I have previously outlined and the sentencing principles governing such appeals. Granting all those factors, Mr Edwards nevertheless submitted that a term of imprisonment should have been imposed for manslaughter committed in the circumstances outlined in this judgment. Probably the central point of concern to the Attorney General in this appeal is that the learned sentencing Judge had not given sufficient weight to the general deterrence which a sentence for manslaughter must have in the community. Mr Kamu on the other hand relied on the decision of the sentencing Judge saying that all relevant matters were before him and that the sentence imposed was quite appropriate. Mr Kamu submitted that the appeal should be dismissed.

Not without reluctance we agree with the Attorney General. On the more favourable view of the facts this young man, probably under the influence of alcohol, made no effort to bring his temporarily blinded feelings under control and allowed them full vent by taking the butt of a rifle and striking the head of the victim with such ferocity, the butt broke. It is little wonder the two blows delivered whilst he was on the ground caused his death. Respondent went so far as to say when being questioned by Police he was not even angry with his brother in law and we find that a puzzling remark.

We think this sentence cannot be allowed to stand for the Court must make it plain beyond all question that acts of violence as revealed by the facts of this case must result in term of imprisonment. If there were any relaxation of that rule ordinary sentencing principles would suffer. It cannot be denied a life was needlessly lost.

The Court faces a perplexing problem in deciding the proper sentence. We are conscious of the fact respondent received only a fine at first and now must face a term of imprisonment. We have referred to his contrition and the punishments imposed by the Village Fono. We have decided in these circumstances a proper sentence would have been 3 to 5 years imprisonment but we will choose the lower figure and substitute a sentence of 3 years.

The appeal is therefore allowed and a term of 3 years imprisonment is imposed as well as the fine of $1,000.

Solicitors: Attorney-General's Office, Apia for Appellant
Kamu & Peteru, Apia for Respondent