Lealaiauloto v Attorney General [2015] WSCA 2 (17 April 2015)

COURT OF APPEAL OF SAMOA
Lealaiauloto v Attorney General [2015] WSCA 2

Case name:	Lealaiauloto v Attorney General
Citation:	[2015] WSCA 2
Decision date:	17 April 2015
Parties:	Senetenari Lealaiauloto (appellant) Attorney General (respondent)
Hearing date(s):	13 April 2015
File number(s):	CA18/14
Jurisdiction:	Criminal
Place of delivery:	Mulinuu, Courthouse
Judge(s):	Honourable Justice Fisher Honourable Justice Blanchard Honourable Justice Panckhurst
On appeal from:	Police v Senetenari Lealaiaulot (Supreme Court)
Order:	- Accordingly, we allow the appeal, quash the eight year sentence and substitute a sentence of six and half years imprisonment. From this there must be a deduction for all time spent in custody in relation to the offending, including the custodial periods before and after the first trial.
Representation:	I Sapolu for appellant P Chang and B L-Tam for respondent
Catchwords:	MANSLAUGHTER – Mitigating factors – deduction on sentence - deduction all times spent both in custody and bail.
Words and phrases:
Legislation cited:
Cases cited:	Nepa v Attorney General
	Attorney-General v Godinet Turi v R Village Fono Act 1990
Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A 18/14

BETWEEN:

SENETENARI LEALAIAULOTO
Appellant

AND:

ATTORNEY GENERAL
Respondent

Coram: Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst

Hearing: 13 April 2015

Counsel: I Sapolu for Appellant
P Chang and B L-Tam for Respondent

Judgment: 17 April 2015

JUDGMENT OF THE COURT

1. On 2 May 2014 this Court overturned the conviction of the appellant for murder and ordered a retrial: Senetenari Lealaiauloto v Attorney-General CA3/14. At that re-trial he was acquitted of murder but found guilty of manslaughter. He was then sentenced to 8 years imprisonment. He appeals against that sentence.
2. The offending which led to the death of the victim involved an attack by four young men in December 2012. The other three were convicted of murder at the first trial and did not bring any appeal. Their roles in the attack on the victim were more serious than that of the appellant but all were involved in a nasty and prolonged assault on the victim causing his death. It suffices to refer to the description given by this Court in its judgment of 2 May 2014 which corresponds with the way in which the sentencing Judge depicted the events after the re-trial:

[2] The group of young men, which included a fifth man who was found at trial to have no case to answer, were walking at night accompanying a female relative to visit her husband’s family. At the village of Leulumoega they encountered the victim, Junior Tanuvasa, who was walking in the opposite direction to his home at Fasitoo-tai.

[3] The victim was drunk. He made insulting remarks directed towards the female relative which angered the young men. He also snatched the appellant’s cellphone from the appellant’s hand.

[4] The group turned around and retraced their steps to Fasitoo-tai. The victim was walking behind them. At the border of Fasitoo-tai and Leulumoega the young men stopped and waited for the victim. They were in front of the road which led to the victim’s house.

[5] When the victim arrived at the place where the young men were waiting one of them threw a punch which knocked the victim to the ground. All four of those who were convicted assaulted the victim while he was on the ground with punches. Some kicks also appear to have been delivered by one or more of the men.

[6] One of the men hit the victim several times on the head and about the face with a frangipani stick. The identity of that attacker was in dispute at the trial but it was not suggested that it was the appellant.

[7] The victim died as a result of the injuries he sustained in this brutal assault. He suffered blunt force trauma to his head. The medical evidence indicated that the most serious of the injuries were likely to have been caused by the use of the stick. They were not consistent with punching.

[8] The attack stopped only when people from the village came out and chased the attackers away.

3. In his sentencing remarks Nelson J recorded that in his caution statement to the police the appellant had admitted delivering two punches to the face of the victim after the victim had been felled by an initial blow from a co-defendant. So the appellant’s participation came after the drunken and helpless victim was on the ground after being ambushed by the group of four men.
4. The appellant was 21 years of age at the time of the offending. He was of previous good character.
5. Nelson J said that he was “a young man from a good family and background who made a foolish mistake that he must now face the consequence of.”
6. The Judge referred to the statement in Nepa v Attorney General [2010] WSCA 1 that in ordinary cases involving a group and an unprovoked attack resulting in death, the commencing point for sentence ought to be a sentence of 10 to 12 years for the crime of manslaughter. He noted that there was “to some extent” provocation in the victim’s conduct beforehand and adopted a starting point of 10 years. He mentioned in this connection the need to send messages to young men in the community who, when intoxicated, resort to violence when aggravated instead of making the sensible choice of walking away from trouble.
7. From this starting point Nelson J deducted one year for the appellant’s good background of service to his family, church and village and for his clean police record. He made a further deduction of one year in recognition of an ifoga which had been presented and fully accepted by the victim’s family. No guilty plea had been made so there could be no deduction on that ground. The Judge therefore arrived at a sentence of 8 years.
8. In this Court Ms Sapolu criticised the use of the Nepa guideline and the extent of the deduction for mitigating factors. She pointed out that the co-offenders were all convicted of murder, submitting correctly that the appellant’s culpability had to be separately assessed from his co-offenders. But we are not persuaded that merely because the appellant was found not to have shared his co-offenders’ murderous intent, a departure from Nepa was required. He participated in a group attack. It was unprovoked in the sense of not being a spur of the moment decision; some minutes had elapsed between the victim’s insulting behaviour and the offenders’ pre-meditated decision to ambush and assault the victim. The appellant struck two blows with his fist to the head of the victim when he was on the ground and clearly incapable of defending himself. If all concerned had been convicted of manslaughter it would be a plain case for following Nepa. It would be absurd not to do so when the others were guilty of murder. In either situation a person who participates as the appellant did has been part of group violence from which death ensued. The punches inflicted by the appellant were a serious contribution to that violence even if they did not cause the death and even if he was unaware that death might result from the group attack.
9. Ms Sapolu attempted to bolster her criticism of the Judge’s starting point by a comparison with this Court’s decision in Attorney-General v Godinet [2011] WSCA 6 and the New Zealand Court of Appeal’s decision in Turi v R [2014] NZCA 254. In Godinet the lesser of the two offenders was also aged 21. He had joined in the attack initiated by his co-offender and inflicted some injuries on the deceased after he had fallen to the ground when punched and kicked by the other offender. Ms Sapolu drew attention to the observation (at [16]) that guidelines such as in Nepa are never intended as a straight-jacket to preclude the application of flexible justice to the individual case. But the Court added that 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. In our opinion this is a case of that general type and no sound reason has been advanced for a departure. Nelson J did recognise in fixing his starting point that the appellant’s conduct was at the lower end of the range.
10. Turi is not a comparable case. The injuries inflicted by the two attackers, though significant, were not in themselves fatal. The victim had a severely weakened heart, which the offenders would not have known. He suffered a heart attack for which the attack was a substantial cause. The New Zealand Court of Appeal said that the assault in which Turi participated was relatively remote and indirect from the victim’s death: at [13]. It was therefore understandable that the Court considered that the appropriate starting point was five and a half years.
11. Counsel for the appellant was however on firmer ground when she submitted that the sentence was manifestly excessive because allowance was not made for three mitigating factors not mentioned by Nelson J. The first of these was the appellant’s youth and his prospects of rehabilitation. The Judge did take account of good character but made no express allowance for the fact that the appellant was only 21 at the time of the offending. Coupled with his previous good character, that presents a real prospect of his rehabilitation which should have been recognised by a reduction in the sentence.
12. The second factor calling for a reduction was that the fono of the appellant’s village had fined him 20 sows or $2000 which had been fully satisfied or paid. Section 8 of the Village Fono Act 1990 requires that such a punishment by the fono must be taken into account in mitigation.
13. The third factor was that the appellant had spent lengthy periods on bail before and after his first trial. Those periods totalled about 16 months during which he was required to live away from his village.
14. In our view, these mitigating factors did require a further adjustment of the sentence beyond the two years deducted by the Judge from his starting point of 10 years. In this case an appropriate allowance to take into account the appellant’s youth is a deduction of one year and for the penalty imposed by the village fono and the lengthy bail conditions an additional reduction of six months.
15. Accordingly, we allow the appeal, quash the eight year sentence and substitute a sentence of six and half years imprisonment. From this there must be a deduction for all time spent in custody in relation to the offending, including the custodial periods before and after the first trial.
    

Honourable Justice Fisher

Honourable Justice Blanchard

Honourable Justice Panckhurst