Police v Phillip [1999] WSSC 1 (21 April 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

CHRIS PHILLIP
of Tiapapata
Defendant

Counsel: Mr Leung Wai for the Prosecution
Mr P. Fepuleai for the Defence

Hearing: 2, 3, 4, 5, 8, and 9 March 1999
Sentencing Published: 21 April 1999

SENTENCING REMARKS OF WILSON, J

SENTENCING IN CASES OF MANSLAUGHTER

I first refer to what the law says about sentencing in cases of manslaughter. In the case of Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 C.L.R. 47, which was an appeal to the High Court of Australia from a decision of the Supreme Court of Papua New Guinea in 1968, Windeyer J said (at p.68):

"The moral blame in homicides less than murder varies greatly with circumstances. Sentences for manslaughter can thus justly vary from very light to very severe."

In Williscroft [1975] VicRp 27; (1975) V.R. 292 Adam and Crockett JJ said (at p.299) in the Court of Criminal appeal in Victoria:

"...Manslaughter per se is a serious crime but it is notorious that the circumstances of its commission can attract sentences so widely disparate as 12 years’ imprisonment to release upon a good behaviour bond"

In the textbook by I.L. Potas "Sentencing Violent Offender’s in New South Wales", Law Book Co. (in association with the Australian Institute of Criminology) 1980 the learned author said (at p.1031):

".... it is particularly inappropriate to speak of a tariff sentence for manslaughter except perhaps in the broadest of terms and then only with caution. Perhaps more so than for any other category of offence, the cases show that each manslaughter sentencing decision is determined upon its own facts rather than by reference to any preconceived idea of what a proper sentence for manslaughter is or should be."

THE OFFENDER

Christopher Max Phillip, you are a 44 year old father of 5 dependent children. You are a Matai of Samoa. You have been bestowed with very high title names.

You have no previous convictions. You face the court for sentence as a man with a hitherto fine character and reputation.

THE OFFENCE - MANSLAUGHTER

You have been found guilty, by verdict of assessors, of manslaughter. On 3^rd June 1998 at Vaimea, you, by an unlawful act (namely shooting), caused the death of Faasuamaleaui Aumua, thereby committing the crime of manslaughter.

PROVOCATION

The provocation here was extreme. You were victimised by four men, who attacked you. They attacked you unlawfully with fists and weapons. Those four men included the deceased. You were so injured by their violence (which ranged from blows with fists and blows with a billiard cue to blows with an axe handle and blows with a bush knife) that you must have been in fear for your life. On the evidence before the Court during your trial on a charge of murder, of which charge you were acquitted but found guilty of manslaughter, I am satisfied that at least one of your assailants was intending to kill you and set about bringing about your death.

I am not at all surprised that you, having seen your assailants with their weapons and having already received several very serious blows (including at least one life-threatening blow with the bush knife to your head), you became enraged by fear and anger and, in the language of the law of provocation, you lost your self control. The lawyers will understand what I am now about to say and I think that you will understand when I say that, given that provocation, a reasonable Samoan, whom I characterise as "the personable Polynesian person", would, in the circumstances as you found them to be, have lost self control.

I am satisfied, as no doubt the assessors at your trial were, that your initial injuries were so severe that amnesia resulted and you cannot now remember what was in your mind when you staggered out of the office (where the initial attack upon you had taken place) with blood flowing from your head wounds and when you must have got from your vehicle the gun (a pistol), which you fired at two of your initial assailants in turn as they came towards you, injuring the one who was still carrying a billiard cue and fatally injuring the deceased, who had been the leader of the group who were your assailants.

If the assessors had found that the prosecution had not negatived (or disproven) self defence, you would have walked free. Your extreme conduct in discharging a firearm and fatally injuring the deceased would, in those circumstances, have been seen as lawful or, at least, not proven to be unlawful.

But the assessors found you guilty of manslaughter. They might have found you not guilty of murder but guilty of manslaughter upon the basis of what the law regards as "excessive self defence", but then what can be said to be excessive about discharging a firearm in self-defence when faced with an attack by several men using (or armed with) fists, wooden weapons and a bush-knife?) The version of the facts, which I accept for sentencing purposes and which is not only consistent with the assessors’ verdict but also is most favourable to you in the circumstances, is that you were subjected to the most extreme provocation imaginable. Your lawyer, correctly in my view, described those as "violent events, brutal and relentless." I readily proceed with my sentencing task on that basis.

OTHER PUNISHMENT IN THIS UNUSUAL AND EXCEPTIONAL CASE

Another aspect of this case, which makes it a truly unusual and exceptional case of manslaughter, is that you have, in a real sense, been punished (and will continue to be punished for the rest of your life) by means of punishment quite separate and apart from any sentence imposed by this court. I am not referring to the fact that you will carry with you all your life the knowledge that you killed a man, although this is punishment in itself. I am not referring to some regrettable wrong publicity, to which your case was subjected in one branch of the media recently, although that must have caused you much worry. I am referring to your multiple, severe and permanent injuries. The severity of the attack you were subjected to both before and after the fatal shot was fired and the surrounding circumstances were such that it is clear to me that your body was intended to be the dead body that was to be carried out of the SPDC compound that day. How you survived at all is a question to be pondered over; some quick-thinking on the part of your staff members, some excellent medical and surgical treatment, and a measure of good fortune (some might say God fortune) combined to make your recovery something bordering on the miraculous. But, that having been said, you are blind in on eye; you have partial vision only in the other eye; and you have disabling injuries to your head, your face, and your arm. You will never spend a day of your life without being reminded of this incident in which you were the intended victim, in which you became severely and permanently victimised, and in which you became, regrettably, a convicted criminal.

"Convicted" you most certainly must be in the light of the verdict. I say that notwithstanding the powerful argument presented by your lawyer. But "criminal" you are not, if you are to be judged by the standards of most Samoans when they think correctly about crime and criminals.

CULPABILITY (OR MORAL BLAMEWORTHINESS) HERE MINIMAL

I now want to say something (in English) which the lawyers will understand and perhaps you will understand. The degree of criminality is generally assessed (and rightly so, says the law) by reference to the degree of culpability or, as it is sometimes called, the degree of moral blameworthiness. In saying that, I apply that basis of legal principle which was discussed in such a jurisprudential fashion by Windeyer J in Timbu Kolian v The Queen supra. His Honour said (at p.63):

"In general, criminal responsibility is today attached to moral blame. And according to deeply rooted beliefs blameworthiness does not depend simply on what a man did, or on the results his actions caused. It depends upon his knowledge and his intentions (his state of mind) when he acted or upon his advertence to the possible consequences of what he was doing or was about to do, or his careless ignoring of them".

I make it clear that I assess your degree of culpability (your degree of moral blameworthiness) as minimal. But I ought not (and do not) ignore the fact that you are to be sentenced for the crime of manslaughter which, in ordinary circumstances, is normally punishable by actual imprisonment. But I repeat and emphasise that the circumstances here were both unusual and exceptional.

A REGRETTABLE MEDIA PUBLICATION INCIDENT

Although I have some sympathy for you for what you must have gone through when it was published in a local newspaper (mistakenly) that you "had been sentenced to imprisonment for 4 years" for your crime, I have not allowed that incident to influence my decision as to the sentence that should be imposed. Before that regrettable publication took place, I had decided that a non-custodial sentence was appropriate.

PRE-SENTENCE MATERIAL

I have read the helpful Pre-sentence Report prepared by the Probation Officer. I have read the many references that have been submitted, including one from your daughter. The references amount to an impressive collection of testimonials. I have listened to the submissions of your counsel. I have heard evidence from the deceased’s widow. In a real sense, restorative justice has already been achieved. It seems that reconciliation between your family and the deceased’s family has occurred.

PERSONAL CIRCUMSTANCES

I take into account the fact that you will, almost certainly, lose your job. Your contract, which is due to expire next month, is unlikely to be renewed (on account of your injuries, I emphasise). This incident has effectively ended your working life. I give you credit for the fact that you had an excellent education and have a fine employment record. You had, at the time of this incident, reached the senior position as General Manager of SPDC.

SENTENCING PRINCIPLE

It has often been said that the purposes of punishment are retribution, deterrence (individual and general), public protection (or incapacitation) and rehabilitation. In your case, Chris Phillip, there is no need for me to emphasise retribution or deterrence or public protection. There is need for me to emphasise rehabilitation.

THE SENTENCE

I consider that good reason exists (ample reason exists) for me to exercise my discretion in such a way as to avoid sending you to prison today. I make it clear that you, in a sense, have the imprisonment (that is often ordered in cases of manslaughter) "hanging over your head".

Pursuant to s.113 of the Criminal Procedure Act 1972 and having regard to the special circumstances, including the nature of this offence and your character, instead of passing sentence, I ORDER YOU TO APPEAR FOR SENTENCE, if called upon to do so within 3 years from this day, on condition that you be of good behaviour for 3 years, on further condition that you be under the supervision of a Probation Officer and that, in the event of you deciding to leave Samoa for the purpose of receiving medical treatment for any of the injuries which you received in the subject incident and from which you now suffer, you be at liberty to do so provided that you have the prior consent in writing of your probation officer, and on condition that you pay (within 12 months) to such authority, as directed by your Probation Officer, the sum of $1,000.00 on account of the costs of this prosecution.

JUSTICE WILSON