Attorney General v Godinet [2011] WSCA 6 (26 August 2011)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

CA 04/11

BETWEEN:

ATTORNEY GENERAL
Appellant

AND:

HYNIE GODINET male of Vaiusu Uta
First Respondent

AND:

JOSEPH IEFATA male of Vaiusu Uta
Second Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Fisher
Honourable Justice Hammond
Hearing: 23 August 2011

Counsel: Kieran Raftery and Precious Chang for Appellant
Rosella Papalii for First Respondent
Semi Leung Wai for Second Respondent

Judgment: 26 August 2011

JUDGMENT OF THE COURT

Introduction

[1] The respondents were found guilty of manslaughter after a defended hearing. The first respondent was sentenced to imprisonment for a term of four and a half years and the second respondent to a term of three years. The Attorney General appeals against both sentences on the ground that they were manifestly inadequate.

Factual Background

[2] There is little dispute over the facts. The respondents were part of a group of youths from the village of Vaiusu. After drinking alcohol the group attended a volleyball game at a gymnasium. Included in the Vaiusu group were some women from the same village.

[3] Youths in the group called out to the scorekeeper to show them the score. When he failed to comply, a member of the group shouted something rude. It is agreed that the rude remark was the equivalent of calling the scorekeeper an idiot. The scorekeeper responded with a rude gesture in their direction.

[4] A member of the group threw a bottle or cup in the scorekeeper's direction. Some of the group then left their seats and started to make their way down to the scorekeeper. Security officers intervened and evicted them from the gymnasium. The game finished shortly after.

[5] Instead of going home the Vaiusu youths made inquiries as to the whereabouts of the scorekeeper. By this stage the scorekeeper and another man had moved to the rear door of the gymnasium where they were smoking. On locating them, the first respondent threw a rock at the scorekeeper, striking him on the face. The second respondent gave chase to the scorekeeper's companion who ran inside the gymnasium.

[6] The first respondent punched and kicked the scorekeeper before and after he fell to the ground. When the second respondent returned he joined in the infliction of injuries on the scorekeeper. As a result of these and other blows the scorekeeper suffered fatal injuries to the head and face. He was dead on arrival at the hospital.

The first respondent

[7] The first respondent was aged 22 years at the time of the incident. He had a drinking problem. In June 2009 he was placed on probation following conviction on a charge of wilful damage. On that occasion, as on this, he expressed remorse and blamed his offending upon the drinking.

[8] Following the current incident the first respondent's family made ifoga to the family of the deceased. The ifoga included a gift of six fine mats and $3000. A fine of $1500 was also imposed upon the first respondent's family by the village of Vaiusu.

[9] The first respondent has expressed deep remorse for the incident and blames the incident on his state of drunkenness.

The second respondent

[10] The second respondent was aged 21 at the time of the incident. Like the first respondent he was single and unemployed at that time. However, he was a first offender. He was described as an intelligent young man who had studied at the University of South Pacific until that was cut short after his first year of study through circumstances beyond his control. His family also made ifoga including $3000 and was fined $1500 by the local village. The second respondent has also expressed remorse and is said to have an alcohol problem.

Sentencing remarks

[11] The sentencing Judge treated the deceased's rude gesture as provocation. He described the subsequent attack as short but brutal. He accepted that the first respondent had thrown the rock which first struck the deceased. Both respondents, along with others, had punched and kicked the deceased after he was lying defenceless on the ground.

[12] The Judge referred to the desirability of rehabilitation when sentencing young offenders but pointed out that where the gravity of the offence was great, deterrence and retribution had to take precedence. That in turn required imprisonment with seven years as the starting point for both.

[13] The Judge regarded the first respondent's case as more serious in that he had thrown a rock at close range at the outset and he had a previous offence. For the first respondent he deducted 12 months for the ifoga and another 18 months for youth resulting in a sentence of four years and six months.

[14] For the second respondent the Judge deducted 12 months for the ifoga, 18 months for youth and a further 18 months for his previous good record and remorse. The result in his case was a sentence of three years imprisonment.

The Appeal

[15] In this Court Mr Raftery submitted that the sentence was manifestly inadequate due to a failure to follow the sentencing guidelines directed by this Court in in Nepa v Attorney General [2010] WSCA 1. After reviewing other cases we held at para 39 that "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."

[16] The question is whether there is any reason for departing from the Nepa guidelines in the present case. Guidelines of this kind are never intended as a straitjacket to preclude the application of flexible justice to the individual case. However if a case appears to be of a general type to which the guidelines were intended to apply, there should be some articulated reason for departing from them.

[17] In the present case there were multiple assailants. There was no provocation in any normal sense. Hostilities were initiated by the respondents and other members of their group. As the hostilities escalated, the deceased reacted unwisely but in no sense did he either initiate the episode or invite the response that followed. There was a separation in time between the initiation of hostilities and the respondents' second encounter with the deceased. The game ended, the respondents made inquiries, and only then located the deceased in another part of the gymnasium grounds. To that extent there was premeditation. A weapon, in the form of a rock, was used. The violence was sufficiently prolonged for the second respondent to leave the first respondent and the deceased, chase another man, return to the scene, and then join the attack. The deceased was repeatedly kicked in the face while motionless on the ground. The injuries were multiple and severe. The respondents stopped only when a crowd gathered. The respondents' intoxication was not, of course, a matter in mitigation. In short this was a case within the general type to which the Nepa guidelines were intended to apply. That suggests that at least at first instance the starting point ought to have been within the range of 10 to 12 years before considering factors individual to the particular offenders.

[18] On an Attorney's appeal this Court will intervene to increase a sentence only if the sentence is wrong in principle or manifestly inadequate: Police v Etelagi [2001] WSCA 2 at 6 para 3. If an increase is required, it will be no more than is essential: Attorney General v Ioane [1994] WSCA 20 at 2, para 2. In conformity with those principles, we are satisfied that the starting point here could not be less than 10 years.

The individual offenders

[19] The Judge made ample allowance for mitigating circumstances in his consideration of the individual respondents. Mr Raftery did not challenge any of the deductions. He invited us to make the same adjustments once the correct starting point had been adopted.

[20] We agree subject to one point raised by Ms Papalii. She pointed out that although the Judge made a deduction of 12 months for the ifoga in each case, he did not expressly advert to the fact that in addition the village had in each case imposed a fine of $1500.

[21] Section 8 of the Village Fono Act 1990 provides:

Where punishment has been imposed by a Village Fono in respect of village misconduct by any person and that person is convicted by a Court of a crime or offence in respect of the same matter the Court shall take into account in mitigation of sentence the punishment imposed by that Village Fono.

[22] Under s 2 "Village misconduct" is widely defined to include behaviour which has been traditionally punished by the Fono in accordance with its custom and usage. There has been no suggestion that the Fono overreached itself in the present case when it imposed the fines of $1500 each.

[23] Section 8 therefore made it mandatory to take the village fines into account. Only if sentencing judges expressly refer to them can one be sure that they have been taken into account. It is conceivable that in the present case the Judge included some allowance for fines in his deduction of 12 months for ifoga but at least on an Attorney's appeal we would prefer to give the respondents the benefit of the doubt. We are therefore prepared to make an additional deduction for the fines.

[24] As to the amount of the deduction Ms Papalii proposed six months. We have heard no considered argument from either the Attorney or the respondents on the quantitative relationship between Village fines and conventional sentences. In the circumstances we will make an additional deduction of four months in this case but do not purport to set any quantitative precedent for the future.

Result

[25] For the first respondent, Hynie Godinet, we take ten years as the starting point, repeat the deductions totalling two years six months made by the Judge, make a further deduction of four months for the fine, and arrive at a net sentence of seven years two months imprisonment.

[26] For the second respondent, Joseph Ulugia aka Joseph Iefata, we take ten years as the starting point, repeat the deductions totalling four years made by the Judge, make a further deduction of four months for the fine, and arrive at a net sentence of five years eight months imprisonment.

[27] The appeals are therefore allowed and the sentences imposed in the Court below are quashed. In substitution we impose upon the first respondent a sentence of imprisonment for seven years two months and upon the second respondent a sentence of imprisonment for five years eight months.

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Hammond