Attorney General v Matalavea [2007] WSCA 8; CA 05 of 2006 (14 September 2007)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN:

THE ATTORNEY-GENERAL
OF SAMOA
Appellant

AND

FAAVAOGA SIAOSI MATALAVEA
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Salmon
Honourable Justice Paterson

Hearing: 03 September 2007

Counsel: P Chang and A Lesā for Appellant
S Leung Wai for Respondent

Judgment: 14 September 2007

JUDGMENT OF THE COURT

Introduction

1. The Attorney-General appeals under s164L of the Criminal Procedure Act 1972 against a sentence of two years imprisonment on a charge of manslaughter. In fixing the term the learned Chief Justice took into account, as well as a guilty plea, the completion by the families of the victim and the offender of a process of ifoga.

The offending

2. On the night of 14 July 2005 Mr Matalavea and his wife were at a dance at the RSA nightclub in Apia. They had consumed four or five bottles of beer by the time Mr Esau Pulotu and a friend arrived between nine and ten o’clock. Mr Pulotu, who was not known to Mr Matalavea, complained to Mrs Matalavea about some incident of an investigation she had performed in the course of her work for Treasury. The Chief Justice accepted Mr Matalavea’s account that Mr Pulotu had been drinking and was intoxicated. Mr Matalavea offered Mr Pulotu a bottle of beer and asked him to leave. Mr Pulotu aimed a blow at Mr Matalavea’s head with another bottle. Mr Matalavea responded in anger. First he punched Mr Pulotu in the mouth, causing him to fall to the floor. He then struck Mr Pulotu twice on the top of his head with the leg of a metal stool which caused two serious injuries. Mr Pulotu died a few minutes later.

Personal circumstances

Mr Pulotu and his family

3. Mr Pulotu was 41 years of age at the time of his death and was employed as a forklift operator. He leaves a widow and four children. The extent of their tragic loss is obvious and continuing. Additional to the grief at the loss of a loved husband and father is loss of the security provided by the breadwinner of the family.

4. The Chief Justice described as a notable feature of the case the magnanimity of Mr Pulotu’s family. Their sa’o (principal matai) wrote to the Court to confirm that reconciliation had been achieved following the traditional ifoga process and they have exhibited total forgiveness of Mr Matalavea, supporting a merciful approach by the Court. Indeed the sa’o invited the Chief Justice to consider a non-custodial sentence.

Mr Matalavea and his family

5. Mr Matalavea is now 46 years of age, married with three children. He suffers from diabetes and high blood pressure. As a result of the present charge he resigned his high office as Principal Research Officer of the Ministry of Agriculture where he had been employed for more than twenty years. His academic qualifications include a degree in science, a diploma in agriculture and the bulk of a postgraduate diploma in that subject. References from responsible sources recount Mr Matalavea’s personal qualities.

The process of ifoga and the sentence of the Supreme Court

6. In performing their side of the ifoga process Mr Matalavea’s family presented to Mr Pulotu’s family fine mats and cash of $10,000. They contributed to his lau’ava ten cattle beasts, forty boxes of canned fish, a large pig and thirteen fine mats together with a further payment of $10,000. The total value of the items presented was of some $40,000. The Chief Justice accepted that Mr Matalavea and his family exhibited complete remorse.

7. The Chief Justice regarded as a fact aggravating the original punch by Mr Matalavea his picking up the stool and hitting Mr Pulotu on the head with it when he had fallen to the ground.

8. He placed especial weight as mitigating factors on the performance of the ifoga process and the generous acceptance of it by Mr Pulotu’s family as achieving reconciliation.

9. He noted as other mitigating features the element of provocation by Mr Pulotu, the absence of premeditation, co-operation with the authorities and the immediate plea of guilty once an original murder charge had been reduced to manslaughter. He recorded also Mr Matalavea’s previously unblemished character and work record.

Submissions

Appellant

10. Counsel for the Attorney-General submitted that excessive weight had been placed on the ifoga and reconciliation aspects of the case and that as a result the sentence was out of line with other authorities. They contended that the unhappily large number of cases since 2006 – no fewer than seven were cited – shows the need for deterrence in sentencing policy. They submitted that the English Sentencing Guidelines employed in Ausage should be applied in this case and invited this Court to impose a sentence with a final result of no less than 5 years imprisonment.

Respondent

11. Counsel for the respondent submitted that a starting point of 5-6 years was appropriate but that the two year ultimate sentence was within the range open to the learned sentencing judge.

Analysis

Approach

12. As well as engaging the general public interest in balancing the competing values, which include denunciation, deterrence and also rehabilitation, this case presents three outstanding features. The first is the unlawful assault which in causing the loss of Mr Pulotu’s life has exposed Mr Matalavea to liability to a term of life imprisonment. The second is the proper weighting the performance of ifoga and the magnanimity of Mr Pulotu’s family should receive. The third is that the Courts are responsible to the people of Samoa for delivery of the justice required by law, which comprises both statute law, including the Crimes Ordinance 1961 and s8 of the Village Fono Act 1990, and, by s3 of the Judicature Ordinance 1961, common law and equity. The common law of Samoa includes the traditional process with the participation of the families of the offender and the victim. But, as the Chief Justice has demonstrated by the sentences he has imposed over the years, it is far from limited to that: the legislation enacted by Parliament is of prime importance. As the Attorney-General submits, care must be taken to avoid any notion that the better-off can buy their way out of the penalties for criminal offending that other members of the community must face. Justice must both be done and be seen to be done, not only as between the families but within the wider community.

13. It is the role of an appellate court to balance local values with settled fundamental principles of justice. Where fundamental principle is not maintained the appellate court will intervene. An example is the decision of the Privy Council in R v Taito [2003] 3 NZLR 577 where New Zealand’s system for dealing with criminal appeals was held not to meet the standards which New Zealand and the United Kingdom share and which in Samoa have the protection of the Constitution.

14. This Court will accord particular weight to the sentencing patterns selected by the judges of the Samoan courts who are versed in the standards and traditions of Samoan society. It will also look at trends in other states of the common law which those judges are accustomed to consider.

Sentencing approach

15. In order to compare this case with others we adopt the now conventional approach of identifying a starting point for the conduct, viewed objectively without reference to Mr Matalavea’s personal circumstances, before turning to those factors as well as others relied on in mitigation. That is the practice adopted in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

The criminality

16. It is necessary to identify what the authorities term "the precise criminality" of the offender: R v Meroiti CA 392/99 26 October 1999 at [6] citing R v Duffy (1994) 15 Cr App (S) 677 at 681.

17. Here the initial blow by Mr Matalavea, to Mr Pulotu’s mouth, was struck at least under provocation and possibly in self-defence from an apprehended blow from a bottle. Mr Matalavea is entitled to the benefit of any doubt on that score. The presence of his wife and his obligation to protect her may be taken into account in his favour. The evidence did not establish the precise causation of Mr Pulotu’s death. Counsel told us that the floor of the RSA was of concrete; it may well be that injury to the head contributing to the death resulted, as so often, from the fall. It is only for the excess force beyond what he may reasonably have believed necessary for self-defence for which Mr Matalavea is legally responsible. The prosecution has not excluded as a reasonable possibility that the punch was required for that purpose.

18. But once Mr Pulotu had struck the ground there could be no justification for the further violent attack on him using the metal stool as a weapon. The use of the table leg went far beyond self-defence and the two serious injuries that resulted undoubtedly contributed to the death, as Mr Matalavea acknowledged by his plea of guilty to manslaughter. If it be the case that such liquor as Mr Matalavea had consumed affected his normally reliable judgment and led him to overreact to Mr Pulotu’s conduct, that is in law of no assistance to him. We note too his failure to show any immediate remorse. He left the premises and offered no immediate assistance to the victim.

The authorities

19. Until recently in Samoa, as in New Zealand, the courts had tended to fix the final sentence after discussion of aggravating and mitigation factors but without specific discussion of what starting point would have been adopted without those factors.

20. In Faafua (Vili) v Police [1980-1993] WSLR 550 this Court noted that the then highest recent sentence for manslaughter had been for a term of three and a half years. For what was described as a very serious offence attended by an element of provocation a term of four and a half years was substituted for the six year term imposed by the sentencing judge. The decision may suggest a starting point of perhaps six years before allowance for mitigation. The Court gave notice that, in the future, crimes of violence causing death would attract more severe penalties. That has proved to be the case.

21. In Attorney-General v Mani [1994] WSCA 16 on an Attorney-General’s appeal this Court substituted a three year prison term for a $1000 fine imposed by the Supreme Court for a manslaughter committed at a party. There are certain similarities with the present case. The deceased had been an aggressor, running at a guest with a machete. The respondent intervened as a peace maker and was struck on the leg with the weapon. The violence subsided temporarily but the deceased then made to get another machete and the respondent got hold of a shotgun. Both men were disarmed but the respondent then recovered the rifle and struck the deceased twice on the head with it, using such violence as to break the butt. The respondent was immediately remorseful, doing what he could to help the deceased and pleading guilty. This Court noted that "With the families the matter has already been settled" but did not elaborate. In addition the respondent’s family was fined by the Village Council and provided the village with 5 cartons of herrings and 10 boxes of biscuits. The Court referred to s 8 of the Village Fono Act which requires the Court to take such penalties into account. It recognised the point, of relevance to the present case, that because of the presumption in favour of liberty the Court will less readily intervene on an Attorney-General’s appeal than on that of a defendant. Again in current parlance a starting point of perhaps six years is suggested.

22. In Police v Tautunu [2006] WSSC 31 the Chief Justice adopted the technique of starting point, there of 5 years for a blow with a piece of timber to the head of a boy. That was reduced to 3 years to recognise mitigating factors which included the traditional ifoga, including presentation to the family of the deceased of money and other items to a value of some $10,000. Reconciliation between the families had been achieved. The Chief Justice analysed a number of recent manslaughter sentences, including three of his own. He noted that the wide range of different circumstances had led to a spread from probation to 5 years imprisonment.

23. The last-mention decision was Police v Sione [2006] WSSC 6 where, following provocation by stone throwing, the accused attacked the deceased with a machete causing five deep lacerated wounds including two to the head. The provocation, a prompt plea of guilty, punishment by way of banishment and burning of the accused’s properties led to a sentence of five years imprisonment. The notional starting point may have been of the order of eight years.

24. In Police v Aisea [2006] WSSC 47, where following a guilty plea the Chief Justice imposed a 5 ½ year sentence for manslaughter using a concealed knife, he emphasised the retribution and deterrence aspects of sentencing. Referring to the fact that in the past seven years the longest custodial term for manslaughter had been the 5 years in Police v Tautunu he observed that the range of sentences would require to be reviewed soon. The notional starting point may again have been about eight years.

25. Recently in Police v Ausage (30 April 2007) following a guilty plea the Chief Justice sentenced to 5 ½ years imprisonment a jealous husband who killed his wife in circumstances entailing substantial provocation and where ifoga was required to be taken into account. He considered New Zealand authority and the English Sentencing Guidelines "Manslaughter by Reason of Provocation". He used an 8 year starting point and added 9 months for aggravating factors.

Ifoga

26. According to authority cited by Cluny and La’avasa MacPherson "The Ifoga: the Exchange Value of Social Honour in Samoa" Journal of the Polynesian Society Vol 114 Issue 2 June 2005 page 109, the word ifoga means a ceremonial request for forgiveness made by the offender and his aiga (family) to those injured. It is performed by public act of self-humiliation, accompanied by the gift of fine mats, speeches and food. Its practice, recognised by the Chief Justice in Police v Tautunu, is a powerful institution for reconciliation. It has been acknowledged also by the New Zealand courts in respect of serious disputes among New Zealanders of Samoan descent: R v Talataina (1991) 7 CRNZ 33 (CA); R v Maposua [2004] NZCA 212. It is a sophisticated and established method of reconciliation which includes the provision of amends now recognised in simple form by s 10 of the New Zealand Sentencing Act 2002, discussed by the present Chief Judge of the High Court, Randerson J, in Zhao v The Police HCHM AP 32/03 6 June 2003.

27. As an institution for restoring relations among the wider family groups the purpose of ifoga overlaps with but does not supersede the court-based processes of the criminal law. Care must be taken by the Court to steer the narrow passage between disregarding ifoga’s valuable role as a contributor to reconciliation in Samoan society and, as counsel for the Attorney-General submitted, placing such weight upon it as would permit preferential treatment of those whose families can compared with those who cannot perform ifoga.

This case

28. We have noted that the prosecution cannot exclude that the blow causing Mr Pulotu’s head to strike the concrete floor was struck in self-defence. Stripping out both the prior provocation and that first blow we consider that after a defended hearing a term of no less than six years imprisonment would be required for the two serious head injuries. We record that we respectfully endorse the approach adopted by the learned Chief Justice in manslaughter sentencing of concurrently monitoring the needs of Samoa, which may entail periodic review of sentencing levels and their relationship to patterns of offending; reviewing international trends; and ensuring justice both to the prosecution and the defence in a particular case. It should be noted that, while reference to the English Sentencing Guidelines "Manslaughter by Reason of Provocation" was appropriate in Ausage it is not apparent to us that the present case falls within them. The prosecution summary did not clearly assert facts demonstrating that this was what would, in England, have been a murder case reduced to manslaughter by reason of provocation. Here the relevance of the Guidelines is by way of analogy only.

29. There are no facts personal to Mr Matalavea that would aggravate the sentence from its starting point. The fact of his superior education and experience does not do so, although it may limit the mitigation available in response to provocation.

30. Turning to mitigation, the sequence of events was rapid; the criminal offending, while grave, followed closely on the blow in self-defence. There was therefore provocation of the later blows which provides partial mitigation: a threatened attack by a man in liquor with a bottle gives rise to reasonable apprehension of grave injury or death. The context that the threat related to performance of her public duties by Mr Matalavea’s wife accentuated the provocation; concern for her safety is a factor of relevance. We accept from his admirable past record, itself a mitigating factor, that Mr Matalavea was acting impulsively rather than in his usual rational manner, although the fact that his education and experience should have assisted him to restrain himself is also a consideration.

31. Further mitigation is provided, as the Chief Justice observed, by the later assistance to the authorities and the prompt guilty plea.

32. Credit is also due for the accepted performance of ifoga which was carried out in substantial measure and with heartening results.

33. Finally, as was emphasised by Lamer CJ in R v M (CA) [1996] 1 SCR 500 at [91] and by McCarthy P in R v Wihapi [1976] 1 NZLR 22 at p 424, the sentencing judge retains a residual authority to display mercy. The troubling effect of the events on the young daughter of Mr Matalavea is one of the many grave consequences of this episode. But the right to exhibit mercy does not relieve this Court of its responsibility.

34. We do not consider that the mitigating factors, including the process of ifoga, can carry such weight in the overall judgment as to increase what might otherwise be a 30% reduction for mitigation to a 2/3 (four year) decrease in the starting sentence. But for the post-trial history of this case we would have regarded such reduction of the six year starting sentence as excessive; two years’ reduction would have sufficed. The fact that this is an Attorney -General’s appeal would justify a further reduction of one year, which would coincide with the three year sentence in Attorney-General v Mani.

35. Here however we have the additional fact that Mr Matalavea returned to the community nearly four months ago - on 19 May 2007. While the Attorney-General’s notice of appeal was filed promptly - on 7 June 2006 following the sentencing on 19 May 2006 – the prospect of return to prison for a further five months would entail a continued penalty which, with an original three year sentence, would now be almost completely served.

Conclusion

36. We are satisfied that this was a sentence which warranted review by this Court. The Attorney-General has made out the contention that gave rise to the appeal. But in the particular circumstances it would be disproportionate to recall Mr Matalavea to continue serving his sentence.

37 The appeal is therefore dismissed.

Honourable Justice Baragwanath

Honourable Justice Salmon

Honourable Justice Paterson