Nepa v Attorney General [2010] WSCA 1 (7 May 2010)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 21/09

IN THE MATTER
of an appeal pursuant to the Criminal Procedure Act 1972

BETWEEN

SOLA ATI NEPA, TUU GAFA TAUTI,
TU’UGALILO ONOSA’I and IOANE MAMEA
Appellants

AND

THE ATTORNEY GENERAL
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Counsel: L T Malifa for appellants
P Chang & F Laga’aia for respondent

Hearing: 6 May 2010
Judgment: 7 May 2010

JUDGMENT OF THE COURT

1. The appellants were acquitted of the crime of murder and convicted on the alternate crime of manslaughter. Each was sentenced to a term of imprisonment for a period of 5 ½ years. They appeal both the convictions and sentences.
   
2. They were charged as parties to the crime in accordance with the Crimes Ordinance 1961 section 23 (1) (a) to (d) ("The Ordinance") and as persons engaged in the prosecution of a common purpose.
   

CIRCUMSTANCES OF HOMICIDE

3. On the evening of 31 July 2008 Akuino Wright, the deceased, heavily intoxicated went to the home of Sola Ati Nepa the first appellant armed with a sapelu. His grievance with Sola arose from a disputed case before the Lands and Titles Court involving a Sola title held by the appellant. He approached Sola in a threatening manner calling out "o lea ua ou sau e tipi lou ulu i le naifi" "I have come to cut your head off with the knife". The witness Matelino claimed that the deceased added ‘o le a sau e fa’apu’upu’u le tafao a Sola’ or roughly translated as ‘that is going to make Sola’s wondering’s short’. There were differences between the witnesses as to whether the sapelu was a knife or a machete. Tu’u Gafa the second appellant intervened and in the ensuing struggle was wounded in the arm by the sapelu. Sola told Akuino ‘ua vaai iai o le a e oti’ (translated: Watch it you are going to die) and at trial claimed that he had called on Tu’ugalilo Onosai and Ioane Mamea, the third and fourth appellants respectively, to disarm Akuino. An eye witness stated that Ioane had struck the deceased with a metal object while Tu’ugalilo threw a large rock at the man. A second eye witness saw Tu’u grab Akuino by the throat saying as he did, "o le a se’i lou fa’a’i" or roughly translated ‘I’m going to rip out your throat’. Tu’u was only stopped by the witnesses’ intervention.
   
4. Akuino was left lying on the driveway seriously injured. He died 2 days later in hospital. The autopsy showed multiple lacerations to the head and body, bruising to the right temporal and eye region, fracture of the temporal bone and a tooth. The cause of death was recorded as internal bleeding in the brain. The injuries were consistent with blows from blunt objects such as a rock, stone, fist or club. The appellants were interviewed, arrested and charged with the crime of murder.
   

ASSESSORS’ VERDICT

5. The assessors, to return a guilty verdict of murder, were required to be satisfied beyond reasonable doubt as against each appellant that:
   

1) there had been a homicide;

2) each defendant had acted as an aider, abettor or counselor of the act or acts which caused the homicide; or

3) the homicide was unlawful although the consequence was not intended;

4) the acts were of such a nature that death or serious injury was a probable consequence and the appellants recklessly indifferent to the consequence;

5) the act or acts were not justified and, in this case, not committed in lawful (self defence or) defence of another.

6. The verdict of manslaughter reflects their finding that each ingredient other than (4) had been proven, to the requisite degree. They were satisfied that each appellant had been a party to a culpable homicide not amounting to murder.
   

GROUNDS OF APPEAL

7. The Grounds of Appeal concerning conviction state:
   

(i) "That the verdict of the assessors should be set aside on the ground that it is unreasonable in not accepting self defence and defence of another; and/or cannot be supported having regard to all the evidence:

(iii) "There was miscarriage of justice in the decision in the court below:

(a) relying on the evidence of Sita Tevaga and her husband Matelino Tevaga, which evidence was rejected at the voir dire; and the same evidence being materially contradictory to each other;

(b) of that same evidence which was also shown at cross examination to be unsafe, untrue and on proof beyond reasonable doubt cannot and could not support the finding of manslaughter, and

(c) in that that same evidence, being weighted against the evidence of all Defendants, that husband and wife evidence should not have been accepted as the same was unsafe, contradictory and untrue."

8. The statutory provisions engaged are those of the Criminal Procedure Act 1972 sections 164K and 164N (a) and (c).
   

SELF DEFENCE

9. The appellants claim that the rejection by the assessors of self defence and defence of another were unreasonable. The Ordinance sections 15 and 16 distinguish between provoked and unprovoked assault, an unlawful assault being the ingredient of the manslaughter. The sections provided justification and the prosecution was required to prove that the acts of retaliation were unjustified or not effected lawfully. It was for the prosecution to exclude the justification or lawful self defence or defence of another. The Ordinance section 20 provides that:
   

"Everyone authorised by law to use force is criminally responsible for any excess, according to the nature and quality of the act that constitutes the excess."

10. Sola Ati was entitled to invoke the protection of the Ordinance section 15 which provides:
    

"Self defence against unprovoked assault – (1) Everyone unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force, if the force he or she uses:

(a) Is not meant to cause death or grievous bodily harm; and

(b) Is no more than is necessary for the purpose of self defence.

"(2) Everyone unlawfully assaulted, not having provoked the assault by any blows, words or gestures, is justified in repelling force by force although in so doing he or she causes death or grievous bodily harm, if:

(a) He or she causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his or her purpose; and

(b) He or she believes, on reasonable grounds, that he or she cannot otherwise preserve himself or herself from death or grievous bodily harm.

11. However, his involvement was subject to the stricture of the Ordinance section 20.
    
12. Tu’u Gafa was, entitled to the same provision during the course of the struggle with the deceased following the wounding. His intervention engaged the operation of defence of another provided for by section 19 which states:
    

"Defence of person under protection – Everyone is justified in using force, in defence of the person or any one under that person’s protection, against an assault, if he or she uses no more force than if necessary to prevent the assault or the repetition of it: PROVIDED THAT this section shall not justify the willful infliction of any hurt or mischief disproportionate to the assault that it was intended to prevent."

13. .For the purpose of this appeal, the Court accepts that the first appellant was a person who was under his protection, a point not raised at trial.
    
14. The third and fourth appellants were entitled to the protection of section 19.
    
15. Section 19 provides for proportionality and section 20 as to excessive force.
    
16. Here there was no doubt but that the deceased had initiated the confrontation. The possession and later use of the sapelu coupled with threats by the deceased created a legitimate basis for apprehension of, at least, grievous bodily harm. Assessment of the evidence by this Court must be seen in that light. The real issue is whether the assessors were entitled to find that the force used was either disproportionate or excessive.
    
17. Counsel for the appellants has subjected the evidence to a minute and detailed analysis. He was right to do so. The analysis shows inconsistencies of detail, nuance or sequence. That is to be expected from persons witnessing a short violent encounter occurring at night with the emotions of all present aroused or excited. The witnesses were consistent with their substance sequence of events preceding deaths. Evidence of the extent of the injuries causing or surrounding death was compelling to establish an assault disproportionate to the need of the appellants to subdue an intoxicated man. The use of a large rock and metal object by Tu’ugalilo and Ioane provided an adequate basis for a finding by assessors that the appellants, through common purpose acted with excessive or disproportionate force and/or continued to act after they had subdued the deceased after any apprehension of harm. This conclusion accords with that of the learned trial Judge, when in sentencing the appellants, he observed consistent by the evidence and finding of the assessors that:
    

"The verdict of the assessors at trial shows that the defence of another in this case Sola Ati and the defence of self defence were properly rejected on the evidence. Probably because the defendants were perceived to have gone further than was necessary in the circumstances. And the assessors must have reached the conclusion that all the defendants were involved in unlawfully assaulting the deceased whether as principal offenders or as parties counseling and procuring and aiding and abetting each other or as persons pursuing an unlawful common purpose namely to assault or beat up the deceased."

18. A subsidiary argument was made as to the cause of death. In his detailed submissions counsel for the appellant pointed to the evidence which suggested that Tu’u and the deceased fell on to the corner of a brick fence during the course of their struggled, which might have produced the injury which caused death. Counsel articulated its import in stating in his written submissions at 2.7.8:
    

"That notwithstanding, we submit that the evidence of the appellants stand on their own that which ever way that total evidence is taken, it is clear all the appellants were doing were coming home after a day’s work when they were confronted, or at least, Sola Ati was, that it was inevitable that Tu’u Gafa had to help. In his evidence, Tu’u stated they fell onto the corner of the brick fence with him lying on top of the deceased. It is not far off to speculate that that corner of brick fence might have been the cause of death, rather than any actions by the appellants: see The Attorney General v Fa’avaoga Siaosi Matalavea (CA/05/2006)."

19. This was a matter, no doubt considered by the assessors, but which was rejected. They were properly directed on the precondition of causation.
    
20. The ground has not been made out and is dismissed.
    

MISCARRIAGE OF JUSTICE

21. The ground is dependent on an analysis of the evidence. There were two eyewitnesses who observed the event initially from inside their home and the later phase of the event. There were inconsistencies between their testimonies and their earlier statements given to police which were fully dealt with in cross examination. The Court has examined the transcript and is satisfied that there was direct evidence against each of the appellants on which the assessors were entitled to find unlawful acts and states of mind.
    
22. The complaint that there was error in accepting ‘husband and wife evidence’ is without legal foundation and ought to be rejected. That husband and wife evidence might require scrutiny in the same way as the evidence of persons in close or frequent contact is a matter for the human experience. That a wife might through loyalty agree with the account provided by her husband might be a matter of culture or religion. But those familial dynamics were the province of the assessors who were better able to understand and give weight to them. That is the strength of a jury or assessors system of judgment.
    
23. Any comparisons between evidence given on a voir dire and that at trial is academic. The issue was of the veracity and credibility of the witnesses. The prosecution case was not wholly dependent on the evidence of Sita and Matelino. Examination of their evidence, given on the voir dire and at trial, together with cross examination on their previous statements, show some degree of difference but their general accounts were both consistent and credible. The assessment of their evidence remained the province of the assessors and this Court should not intervene in the questions of weight or import unless there is manifest error. They were independent witnesses although they might have greater loyalty to the deceased. But, again, the evaluation remained with the assessors, possessed with the knowledge and experience of village life.
    
24. It is not correct to say, as did the appellants in their argument, that in rejecting the prosecution case of murder, the assessors themselves thereby rejected ‘all evidence on that account’, and that no other verdict was open other than that of acquittal. The appellants suggest verdict by compromise a suggestion readily rejected because of the law relating to excessive force and proportionality.
    
25. The ground of miscarriage of justice is not a vehicle for rehearing and substitution by an appellate court. Miscarriage has been described as an ill defined wide ground which may have relation to the conduct of the case by the Judge or the jury, the prosecution or the defence, and is intended to embrace anything not coming within other grounds. Here the defence did not seek to have the assessors consider the alternate verdict of manslaughter. The learned trial Judge quite properly gave such a direction which was entertained by the assessors. Had he not done so and a guilty verdict to murder returned, his failure to put to the jury evidence which provides a possible basis for a verdict of manslaughter is a misdirection giving rise to a claim of ‘miscarriage of justice’ (Aberhart v R. [1978] 1 NZLR 266).
    
26. Here the learned trial Judge in summing up which the relevant law, explained the relevant guiding principles and summarised fairly the respective cases of prosecution and defence.
    
27. The ground is dismissed.
    

SENTENCE

28. The Notice of Appeal relevant to sentence states:
    

"(iv) The sentence of 5 years and 6 months was arrived at without the court below correctly and properly applying Attorney General v Fa’avaoga Siaosi Matalavea [CA 05/2006, Baragwanath, Salmon & Paterson JJ; September 14, 2007];

"(v) The court below erred in stating the aggravated factors to be, amongst others,

(a) the use of certain ‘weapons’ as stated by Sita Tevaga, yet that same evidence was suspect, unsafe and untrue, as in the voir dire where that evidence was rejected;

(b) the defendants in not using Sola At’s vehicle to take the deceased to the hospital; yet there was no evidence of that being asked of Sola Ati, or of any other defendants, or even of any other witnesses, and

(c) there are "no facts personal to the [appellants]" as to aggravate the sentence to the starting point of 8 years as to the court below had used;

"(vi) The court below erred in assessing the "Care...to steer the narrow passage between disregarding the ifoga’s valuable role...and...placing such weight upon it as to permit preferential treatement of those whose families can compared with those who cannot perform ifoga":

(a) by not accepting that there is no issue of preferential treatment in this case;

(b) in not properly traversing that "narrow passage" in light of the facts of this case, and

(c) being unable to weigh the balance proper between those core values of Samoan cultural democracy;’

"(vii) it was open to the court below to assess the culpability of each of the appellants personally in order that it can properly allocate sentence by such personal culpability. Instead, all defendants were sentenced upon the acts of some as being sufficient to attract the same sentence for all;

"(viii) the starting point of 8 years, accepting Matalavea, was "notional" and theoretical only. Therefore, the starting point was unreasonable. Having accepted there was provocation, and by the particular facts of this case and having regard to similar cases of manslaughter, the court below was bound to follow Matalavea’s case (supra) on this point, but did not. Accordingly, it erred in exercise of its sentencing authority. It follows the 5 and a half years is unreasonable and excessive."

29. Each appellant was sentenced alike. The learned trial Judge addressed this question in his sentencing judgment when he stated at 3-4:
    

"I have purpose (sic) for sentencing purposes to treat all the defendants equally so that one penalty applies to all irrespective of the actual part or parts they may have played in this tragic event."

30. Each appellant was responsible for the conduct of others.
    
31. The appellants relied on the propositions that:
    

1) the Court erred in its assessment of aggravating factors;

2) the sentence was not consistent with others considered by this Court or a sentencing Judge;

3) the sentence imposed reflected an undue emphasis on the leaving of the victim unattended and the failure to give weight to ifoga.

32. The last contention may readily be dealt with. The learned sentencing judge made allowance for ifoga and reconciliation. He stated at 5-6:
    

"Some deduction should also be made for the ifoga and reconciliation process that has taken place. The court is happy to hear that in accordance with our tu and aganu’u that the customary practices have been followed and an ifoga and reconciliation has been effected. That was confirmed to a large extent by the orator of the deceased’s family Tevaga who appeared this morning. But as cautioned by the Court of Appeal in Matalavea, care must be taken to avoid the perception that a large ifoga and a large contribution to a persona lauava can buy a lesser penalty. As this court has said before justice is not for sale at any price."

33. Ifoga is a public statement of remorse and the seeking of forgiveness, valuable to both custom and religion (Attorney General v Matalavea [2007] WSCA 8). Its value lies not with ritual and expense but in a deeper expression of guilt, remorse and contrition. Here the appellants had been involved in the taking of the life of another. They might, commendably seek the forgiveness of family, but ought to expect retribution by the State on whose behalf the prosecution was undertaken. The crime was against the deceased and his family but also the State is required to protect the lives and safety of its members. The learned sentencing Judge applied a correct balance in discounting portion of the appropriate sentence.
    
34. In his written submissions, counsel for the appellants contended that:
    

"...it was open to the court below to assess the culpability of each of the appellants personally in order that it can properly allocate sentence by such personal culpability. Instead, all defendants were sentenced upon the acts of some as being sufficient to attract the same sentence for all. In so doing, it was stated (page 3, Sentence) that ‘...the assessors must have reached the conclusion that all defendants were involved in unlawfully assaulting the deceased, whether as principal offenders or as parties counseling and procuring and aiding and abetting each other or as persons pursuing an unlawful common purpose, namely to assault or beat up the deceased’. We submit this show there is an assumption of conviction here. Of course the evidence is disputed between that of Sita and her husband, Maletino, and the appellants. We therefore repeat paragraph 3.2.2 above. That once murder was rejected by the assessors, all witnesses’ evidence on murder were, arguably, rejected. And the only evidence remaining to be considered is that of the appellants. But here and as submitted, the assessors could not have considered those appellants evidence because if they had, the only verdict available would have been acquittal."

35. He did so in the context of an attack on the verdict. The critique has little to do with evaluation of the imposed sentence. The appellants were entitled to consistency in sentence with cases of like nature. However, cases of manslaughter differ individually and infinitely both in degree and circumstances. As Street CJ observed in Withers v R. [1925] NSWStRp 38; (1925) 25 S.R. (NSW) 382 at 397;
    

"There is no offence in which the permissible degrees of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty."

36. The appellants were entitled, as between themselves, to parity. While each played a different role and were of varying ages, the differences balanced out. The first appellant might be said to be more culpable because of his status and the engagement of his colleagues. The second appellant was himself wounded, a matter of mitigation. The third and fourth appellants played differing roles in the violence and there might be further difference of age, background and the like. But it was the combined effect and consequences of their actions which brought about death. But each was culpable, their conduct resulted in death and they were of good character. The sentencing Judge was entitled to treat them alike.
    
37. The claim of inconsistency is met by the respondent producing a summary or compendium of cases involving sentences imposed upon conviction for manslaughter. They reflect the diverse circumstances in causing the death which make manslaughter a crime which varies widely in culpability and sanction. But they show as a guide a commencing point of 8 years imprisonment. Although they range from no imprisonment (Tietie 29 August 2008, accidental discharge of weapon while playing with a gun) to 8 years jail (Nuipisa – sexual assault by youthful offender followed by killing of victim in panic). They represent a good guide to appropriate and consistent sentences. The compendium shows a consistency of penalty imposed in both the commencing point (8 years) and its discount with a median point of approximately 5 years. The analysis provided by the Attorney is useful. However most of the cases examined involved a single assailant. A different approach ought to be taken in cases involving group or multiple assailants. Cases such as Sione [2006] WSSC 6, Aisea [2006] WSSC 47 and Ausage (unrepresented, 30 April 2007) considered by this Court in Attorney General v Matalavea (supra) remain useful decisions in cases involving a single offender or one using a weapon.
    
38. Here the learned sentencing Judge adopted a starting point of 8 years recognized that the appellants had not initiated the violence and discounted accordingly. The pronouncement of a head or commencing sentence with appropriate discounts for plea, mitigatory matters, ifoga and the like is the practice within this jurisdiction. Whether it can evolve into a more flexible method is possibly a matter for future consideration and we give no consideration to that issue in the determination of this appeal.
    
39. The assaults here considered were committed in concert and resulted in death. The failure of the appellants to attend to the stricken man and arrange for medical assistance is relevant to sentence. In ordinary cases involving a group and an unprovoked attack resulting in death, the commencing point ought to be a sentence of 10 to 12 years, for the crime of manslaughter.
    
40. Here there were exceptional circumstances. The deceased man had initiated the violence. He was angry at the first appellant and came to his house armed with either a bush knife or machete both of which are dangerous especially in the hands of an intoxicated man. He came threatening to harm or kill the object of his anger. The initial reactions of the appellants were defensive. In the ensuring struggle the second appellant was himself wounded. The Court accepts the analysis of the learned sentencing Judge that thereafter the appellants acted more in retribution and used excessive force. It is for that that they are punished. Each offender was of good character and same were youthful. We consider that either the commencing point was too high or that he failed to provide an adequate discount for the exceptional circumstances of the case. The discount afforded by the sentencing Judge amounted to 2 ½ years, a figure we accept as appropriate. We would favour as a commencing point a sentence of 6 ½ years which would take into account the special circumstances surrounding the original source of the violence, and would then apply the deductions made by the Judge resulting in a sentence of 4 years. If we were to apply the alternative method, we would afford an additional discount of 18 months to provide for the special circumstances and reach a similar result. In either case a sentence of 4 years imprisonment is appropriate.
    
41. The appeal against sentence is dismissed.
    

ORDERS

1) The appeals against convictions are dismissed.

2) The appeals against sentence are upheld and the sentences set aside.

3) In substitution for those sentences there be a sentence of 4 years imprisonment on each appellant.

HONOURABLE JUSTICE BARAGWANATH
HONOURABLE JUSTICE SLICER
HONOURABLE JUSTICE FISHER