Faleao v Police [2024] WSCA 3 (29 August 2024)

IN THE COURT OF APPEAL OF SAMOA
Faleao v Police [2024] WSCA 3 (29 August 2024)

Case name:	Faleao v Police
Citation:	[2024] WSCA 3
Decision date:	29 August 2024
Parties:	FUIFUI FALEAO (Appellant) v POLICE (Respondent)
Hearing date(s):	23 July 2024
File number(s):	CA02/24
Jurisdiction:	Court of Appeal – CRIMINAL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Chief Justice Satiu Simativa Perese Justice Raynor Asher Justice William Young
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The sentence appeal is allowed. The sentence imposed of 7 years 11 months’ imprisonment is quashed, and substituted by a sentence of 5 years 11 months’ imprisonment.
Representation:	T Toailoa for Appellant L Strickland for Prosecution
Catchwords:
Words and phrases:	“appeal against sentence”
Legislation cited:
Cases cited:	Attorney-General v Lesa [2019] WSCA 10; Hamidzadeh [2012] NZCA 550, [2013] 1 NZLR 369; R v Hohua [2021] NZHC 124; R v King [2012] NZHC 3072; R v Tranter [2020] NZHC 884; Vaughn v R CA457/03, 22 September 2004; Wairau v R [2015] NZCA 215.
Summary of decision:

CA 02/24

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

FUIFUI FALEAO

Appellant

AND:

P O L I C E

Respondent

Coram: Chief Justice Satiu Simativa Perese

Justice Raynor Asher

Justice William Young

Counsel: T Toailoa for Appellant

L Strickland for Prosecution

Hearing: Tuesday 23 July 2024
Decision: Thursday 29 August 2024

JUDGMENT OF THE COURT

INTRODUCTION

1. On 2 November 2023 the appellant, Fuifui Faleao, was found guilty of the charge of manslaughter after a trial before assessors. The assessors dismissed the charge of murder. On 14 February 2024 the appellant was sentenced to 7 years and 11 months’ imprisonment. In this Court he appeals against that sentence.
2. He relied on the following grounds, set out in the notice of appeal:
   • (a) The starting point of 12 years imprisonment was manifestly excessive; and/or
   • (b) The end sentence of 7 years and 11 months’ imprisonment was manifestly excessive; and/or
   • (c) The sentencing Judge erred in rejecting a discount or reduction of the starting point for the element of self-defence; and/or
   • (d) The sentencing judge erred in finding that the defendant’s response to the provocation was disproportionate or excessive given the assessors’ verdict.

FACTS OF THE OFFENDING

3. The facts are set out below in more detail than is usual in a sentencing appeal. That is because the details of the facts are of particular importance to our decision. We take those facts from the Sentencing Judge’s decision and from unchallenged Prosecution testimony in the trial, including from the appellant’s wife and the appellant’s statements to the Police. The appellant did not give evidence.
4. The appellant and his wife live in Ulutogia. The deceased also lived in this village. He was the appellant’s neighbour and matai of the village.
5. On the evening of 27 July 2022 the deceased was drinking and playing billiards with two friends at his home in Ulutogia. The deceased wanted the appellant to join the drinking session and on two occasions approached the appellant to request he participate. The first occasion was at appellant’s wife’s shop and the appellant refused. The second occasion was at the appellant’s home. The appellant’s wife tried to persuade the appellant not to go “in case you get there and they beat you up”. However the appellant was persuaded to return with the deceased to his house to drink with him. The appellant and the deceased then walked back to the deceased’s home. The deceased’s two original companions saw the pair walking as they drove past.
6. The deceased and the appellant proceeded to have drinks at the deceased’s home. As the drinking progressed into the evening, the deceased became aggressive in his speech and made threatening remarks towards the appellant. The deceased said he was a “killer” and that he would kill the appellant. At one stage he broke a bottle and held it to the appellant’s neck, again threatening to kill him.
7. The appellant in his statement recorded that he decided to leave as he felt it was becoming unsafe. He stood up and told the deceased he was leaving. He proceeded to walk to the back door. As he was exiting he felt the deceased suddenly punch him in his shoulder or upper back. The punch caused the appellant to fall to the ground.
8. When the appellant got up from the ground he punched the deceased once. This caused the deceased to fall back onto the rocks immediately behind the back of the house. As the deceased fell the appellant saw a car battery lying next to where the deceased had fallen. He picked up the car battery and threw it down on the deceased’s face while he lay on the ground. In his statement the appellant said he only threw the battery once, but the sentencing Judge concluded, and we accept, that he picked it up at least twice.
9. After having thrown the car battery at the deceased, the appellant left the deceased lying at the back of the house, and went home. He said to his wife “Let’s go to the Police station”. She said he was too drunk to drive and they should call the Police. She asked what happened. He did not say what he had done to the deceased but said a number of times “If I wasn’t quick enough I would have been a dead person”.
10. A call was made and three constables responded. Eventually they found the deceased at the back of the house. The head and face of the deceased was covered with blood and his injuries appeared severe. He showed no signs of life. The Police took the deceased to the hospital and the appellant to the Police post.
11. Dr Mosaiah Marumakatimanu of the Lalomanu District Hospital examined the deceased. He showed no signs of life. Dr Mosaiah found that:
    • ... all injuries were focused on the face and head, with no other obvious injuries from the neck down. His face was swollen and bruised, and covered in blood and blood clots. Multiple and deep lacerations were noted throughout his face. His eyeball was crushed and hanging out of the eye socket. His jaw was crushed and teeth were missing. The inside of his mouth was filled with blood.
12. Later, a pathologist assessed the trauma as severe and extreme between 8 and 10 on a scale of 1-10. Given the multiple and significant injuries, he found that they were highly likely to have been caused by more than two blows from the front of his head and face. The pathologist found the cause of death to be severe subarachnoid haemorrhage with traumatic brain injury, secondary to two traumatic head injuries caused by severe blunt force trauma. The injuries from the car battery were the cause of the deceased’s death.

THE TRIAL AND SENTENCING

13. At the trial the appellant relied on the defences of self-defence, lack of murderous intent and provocation.
14. The judge noted that the assessors’ verdict of manslaughter must have meant that the defence of self-defence was rejected. However, the verdict of manslaughter did indicate that the jury accepted that either a lack of murderous intent or provocation reduced the charge proved to manslaughter and not murder.
15. The Judge assessed that the following factors relevant to sentencing arose:
    • (i) Use of actual violence and to a significant degree;
    • (ii) Extent of the injuries;
    • (iii) Vulnerability of the victim;
    • (iv) Area of the attack;
    • (v) Use of a weapon (in this case, the car battery);
    • (vi) Conduct after the assault (the appellant leaving the victim and scene);
    • (vii) Loss of a human life.
16. The Judge accepted that the threatening behaviour on the part of the deceased had taken place, but he considered that the retaliation and the use of the car battery “to strike the deceased twice or more at the head and face and inflict serious injuries when he was motionless and defenceless on the ground, was excessively disproportionate”.
17. He accepted the prosecution submission that the appropriate start point must be not less than 12 years, and rejected the defence submission that it should be 3 and a half years. He noted:
    • Consistent with the assessor’s verdict however, I consider that when you struck the deceased more likely twice or more times on the face with the car battery when lying defenceless on the ground, it was not in self-defence and your retaliation was excessively disproportionate to the provocation.
18. From the starting point of 12 years imprisonment the Judge then made the following deductions:
    • For provocation I deduct 3 months. For the ifoga and reconciliation I deduct 16 months. For the village penalty and punishment I deduct 12 months. For your personal circumstances, the testimonials and your previous good character I deduct 18 months. The end sentence is 7 years and 11 months.

RELEVANT AUTHORITY

19. The maximum sentence for manslaughter is life imprisonment. There is no sentencing guideline or tariff decision in Samoa, or indeed in New Zealand as manslaughter cases are so “highly fact specific”.^[1] Analogous cases may be helpful, but each case must be considered on its own facts.^[2]
20. The 2019 Court of Appeal decision of Attorney-General v Lesa,^[3] a Prosecution appeal, is relevant although there are some differences in fact.
21. In that case the deceased was married to the sister of the respondent and he and the respondent lived in the same dwelling with their families. On the night in question the deceased was intoxicated and began to beat his wife. The respondent, who was also intoxicated, intervened and asked the deceased to stop hitting his sister. The respondent then left.
22. The deceased renewed his attack on his wife. Hearing this, the respondent returned to the scene. The deceased approached the respondent and asked him what he wanted. The respondent armed himself with a rock and punched the deceased with it. The deceased fell to the ground and while he was lying on the ground, the respondent punched him twice more with his empty fist. The deceased’s wife intervened. The respondent became concerned about the deceased and tried to revive the deceased by pouring a bucket of water over him. The deceased was taken to the hospital and declared dead on arrival.
23. The sentence featured a starting point of 4 and a half years, which with various deductions, resulted in an end sentence of 12 months’ imprisonment. This sentence while merciful and at the lowest end of the range was accepted by the Court of Appeal.
24. The Court analysed earlier manslaughter sentences where death had been caused by the use of a rock as a weapon. The starting points before a deduction for personal and mitigating factors were between 7 and 9 years imprisonment. It was stated by the Court that 7 to 9 years imprisonment would usually be the appropriate starting point for manslaughter where death was caused by the application of a rock to the head. It was accepted that in that appeal an initial starting point at the lower end of the range, namely 7 years, was appropriate, (although because of the special circumstances it had been reduced to 4 and a half years).
25. The Court of Appeal noted that neither self-defence of himself or another could excuse the two punches after the deceased hit the ground, but that “even there, however, some latitude can be allowed for acts done in the heat of the moment to meet the threat which the deceased appeared to pose”.^[4] The Court held that strictly speaking it “... would see defence of another as one of the circumstances of the offending”.
26. The New Zealand Courts have considered provocation in sentencing decisions as a mitigating factor of the offending.^[5] Recognising that there is no defence of provocation in New Zealand, the observations in that case are useful. The Court of Appeal has found that “the evaluation in provocation sentencing is fact dependent” and suggested relevant factors may include:^[6]
    • ...the nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender’s response; and whether the provocative conduct was such as to reduce the offender’s culpability in all the circumstances.
27. The Court also considered that whether the offending occurred through fear or anger could have a bearing on overall culpability.^[7]
28. The English Sentencing Guidelines Council guideline on manslaughter by reason of provocation, issued in 2005 when provocation was still a defence in England, is also of interest. A multiplicity of factors influencing sentence are referred to but it is to be noted that actual or anticipated violence from the deceased will generally be regarded as involving a higher degree of provocation than provocation arising from verbal abuse and infidelity.^[8] Where the offender’s actions were motivated by fear or desperation and rather than anger, frustration or a desire for revenge the offender’s culpability is generally lower.^[9] The intensity, extent and nature of the loss of control must be assessed in the context of the provocation that preceeded it.^[10]
29. In general the offender’s violent response to provocation is likely to be less culpable the shorter the time gap between the provocation and the killing, as evidenced for example, by the use of a weapon that happened to be available rather than by one which was carried for that purpose or prepared for use in advance.^[11] Further, the behaviour of the offender after the killing can be relevant to sentence. Immediate and genuine remorse can be contrasted with concealment or attempts to dispose of evidence.^[12]

THE APPEAL

30. Even if the threats and assaults by the deceased had already been a factor in reducing the charge from murder to manslaughter, it does not follow that self-defence and provocation cannot be considered relevant factors in sentencing. As Lesa clearly demonstrates, they are still to be taken into account when it comes to assessing the seriousness of the manslaughter offending. Factors amounting to provocation are best considered in assessing the overall seriousness of the facts of the offending rather than as personal mitigating factors.
31. The appellant’s assault of a prone man using a car battery as a weapon is shocking and extreme, far more so than the two punches to the prone victim in Lesa. The degree of violence was much more serious. The obvious severe consequences of dropping at least twice, a heavy angular car battery, from a height, on a prone person’s head, would in ordinary circumstances, have warranted the initial 12 year starting point selected by the Judge.
32. However, we consider that the starting point assessment should also have accounted for further circumstances of the offending, relating to the deceased’s threatening behaviour, which preceded the assault and constituted a form of provocation and created a situation in which the appellant was initially acting in self-defence. More specifically, factual circumstances demonstrating some reduction in culpability include:
    • (a) the appellant’s reluctance to be at the deceased’s home;
    • (b) the deceased’s threat to kill the appellant;
    • (c) the deceased holding the smashed beer bottle against the appellant’s neck;
    • (d) the deceased punching the appellant from behind, knocking him to the floor and stopping him from leaving the deceased’s home;
    • (e) the immediate nature of the retaliation; and
    • (f) the deceased’s actions being an operative cause of the appellant’s response.
33. While the appellant’s reaction to the deceased hitting him from behind was excessive to the extreme, in these circumstances we accept the appellant acted out of fear for his personal safety, as well as anger. Little is to be gained by attempting to evaluate these facts individually as leading to an excessive response to provocation. The facts are best seen as a continuum of events, here developing pressure and threats causing fear and anger.
34. We have reached the view that more weight should have been given to the threats and actions of the deceased by the sentencing Judge in assessing the starting point. Further, while the appellant left the scene and walked to his nearby home, as soon as he got there he proposed that he and his wife go to the police station, so this should not be seen as a case where the culpability of the offender is increased by abandonment or concealment.
35. Properly taking account of these factors in assessing the appellant’s culpability for the offending, we consider that in the circumstances there should have been at least a two year deduction to the initial starting point of 12 years. This would have reduced the starting point to about 10 years imprisonment. The sentencing judge made a 3 month deduction for provocation as a mitigating factor. In fact, it should have been treated as a matter affecting the gravity of the offending. We will deduct the 3 months from personal mitigating factors and add it to the 2 year deduction from the starting point so it becomes a deduction of 2 years and 3 months. This reduces the starting point to 9 years and 9 months imprisonment.
36. With regard to the personal mitigating features of the appellant, the respondent fairly accepted that the deductions for personal mitigating factors could still be applied to such a reduced starting point. We will not interfere with that aspect of the sentencing Judge’s decision.
37. If 2 years and 3 months is deducted from the 12 year starting point, reducing it to a 9 years and 9 months starting point, and (except the 3 month deduction for provocation) the other deductions already allowed remain, the end sentence is 2 years less being 5 years and 11 months’ imprisonment. That seems to us to be the appropriate sentence. For the reasons we have set out, we consider that the original sentence imposed of 7 years and 11 months’ imprisonment was manifestly excessive.

RESULT

38. The sentence appeal is allowed.
39. The sentence imposed of 7 years 11 months’ imprisonment is quashed, and substituted by a sentence of 5 years 11 months’ imprisonment.

DATED at Samoa this 29^th day of August 2024

CHIEF JUSTICE PERESE
JUSTICE ASHER
JUSTICE YOUNG

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^[1] R v Tranter [2020] NZHC 884 at [34].
^[2] Vaughn v R CA457/03, 22 September 2004, at [68]; R v King [2012] NZHC 3072 at [20].
^[3] [2019] WSCA 10.
^[4] Paragraph [25] of the decision.
^[5] Hamidzadeh [2012] NZCA 550, [2013] 1 NZLR 369 at [63]; Wairau v R [2015] NZCA 215 at [29(c)]; R v Hohua [2021] NZHC 1242 at [31].
^[6] Hamidzadeh v R [2012] NZCA 550; [2013] 1 NZLR 369 at [62], cited in Wairau v R [2015] NZCA 215 at [29].
^[7] Hamidzadeh v R [2012] NZCA 550; [2013] 1 NZLR 369 at [63].
^[8] Sentencing Guidelines Council, Guideline-Manslaughter by Reason of Provocation (2005) at paragraph 3.2(c).
^[9] Paragraph 3.2(c).

^[10] Paragraph 3.3.

^[11] Paragraph 3.4.

^[12] Paragraph 3.6.