Police v Gali [1999] WSSC 19 (29 September 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

FEILOAIMAUSO UTUELI GALI
and VALA TULI, all of Vailele
Defendants

Counsel: Ms M. Tuatagaloa & Ms S. Hazelman for the Prosecution
Mr T.K. Enari for the Defendant

Date of Sentencing: 29 September 1999

SENTENCING REMARKS OF WILSON J.

Feiloaimauso Utueli Gali and Vala Tuli, you have each pleaded guilty to a charge of manslaughter and now stand convicted of that crime.

In the early hours of 7 August 1999 you both, together with 2 others, were walking inland to your homes at Vailele-uta after a night involving the drinking of alcohol. Whilst you were walking, the now deceased victim of your crime followed you from behind. He suspected, wrongly (I accept for sentencing purposes), that you had eaten some of his sugar cane. Some stones were thrown at you and your companions. It is not clear who threw the stones but it is conceded by the Prosecution “that the deceased threw a stone”. This caused each of you to be provoked and to lose your self-control. When the deceased victim caught up with you, the four of you thereupon assaulted him by punching and kicking him. It was a severe beating which you participated in.

A mitigating circumstance is to be found in the fact that, notwithstanding the severity of the beating and the number and extent of the injuries that you caused (which proved to be fatal), you and your companions had the decency, when you realised that you did not know the identify of the victim, to take the victim first to the Pulenuu’s house and thence to the hospital, where he died as a result of his injuries.

Another important mitigating factor is to be found in the fact that you were provoked. Stones had been thrown, and you, Vala Tuli, sustained an injury to your eye, and others in your group were struck with stones, one of them being knocked unconscious for a time. You, Feiloaimauso, were apparently struck by a stick.

Neither of you is a first offender. Neither of you is entitled to the leniency a first offender might expect to receive in this court.

Feiloaimauso, you were convicted as recently as 29 April 1999 of assault and received what is sometimes referred to variously as a non-custodial sentence or a suspended sentence. You face the prospect of having to be re-sentenced for that crime of assault, if proceedings for breach of the court order made on 29 April 1999 are instituted.

Vala Tuli, you have two previous convictions, one on 9 September 1997 for throwing stones and wilful damage and another on 23 February 1998 for theft. Whilst the last-mentioned conviction has little relevance to a charge like this, which arises from a crime of violence participated in by you, what is of concern is that you do not seem to have learnt very much from your past court appearances. I do not sentence either of you again for a past offence or for past offences, but you have each disentitled yourself from receiving a merciful sentence that I might have been able to impose had you been a first offender.

The fact that you both had been drinking alcohol earlier that night is an explanation (in part) for your conduct, but it is not an excuse.

I do give each of you credit for your plea of guilty, for the remorse you have shown (by means of the ifoga and otherwise) and for the co-operation you have shown to the prosecuting authorities.

The starting point by way of sentence is 5 years imprisonment. I give each of you a discount of 1/3 off the sentence that would otherwise be appropriate for these facts.

I have noted the submissions of your counsel, Mr Enari, and I have listened to the submissions of Miss Tuatagaloa and Miss Hazelman for the Prosecution.

I have read each of the pre-sentence reports prepared by the Probation Service. I have heard from Tuiafiso Tia, a matai of the village of Vailele, and from the deceased’s brother, Vaavale Leuelu.

I do take into account in favour of each of you the fact that an ifoga has been performed and accepted. In a case such as this, that fact cannot absolve me from the responsibility of imposing the sentences of the Supreme Court - but I can say that, the customary form of apology having been performed [in terms of traditional presentation of a large number (60 to 100) of fine mats, 1 large fine mat (for forgiveness) and $1,000.00] and accepted, and the consequential reconciliation having occurred, and the peace and harmony having been restored, that all goes a good way towards emphasising that purpose of punishment [which is, I consider, recognised in Samoa] known as restorative justice, which it is appropriate to have regard to alongside those other purposes of punishment known as retribution, deterrence, incapacitation (or public protection), and rehabilitation. Retribution and deterrence, in particular, need less emphasis here because of the emphasis that has already been given to the concept of restorative justice. The penalty to be imposed by this Court in each case can be less because of the ifoga which was performed and accepted.

I give you each credit for the 4 weeks you each spent in custody prior to your release on bail. I give you each credit for the fact that traditional fines have apparently been imposed and paid by the village (15 boxes of mackerel).

Whilst the recent Court of Appeal of Samoa case of Attorney General v Howard Maumasi, [1999] WSCA 1, 27 August 1999, arises out of a quite different factual situation (that was a serious case of child abuse), that case is of relevance to the extent that it highlights the need to draw a distinction between the “premeditated beating” (which that case was, and this case was not) on the one hand and the beating given in response to “sudden provocation” (as that case was not, and this case was) on the other hand. That case also highlights the gravity of a situation (such as the one here) when there were many blows to several different parts of the body and where the fatal injuries were inflicted directly.

I also bear in mind what the Court of Appeal of Samoa said in Faafua (Vili) v Police [1980-1993] WSLR 550.

This was a serious wrong which you each did. Although you were provoked, you should not have responded in the way you did and with such severity. Your actions, even though provoked, are blame-worthy and culpable.

The sentence of the court for each of you is that you be imprisoned for 3 years and 1 month.

JUSTICE WILSON