Police v Tofaeono [2006] WSSC 23 (8 May 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

PELENATO TOFAEONO
male of Siumu.
Accused

Counsel: M Boone-Dumaran for prosecution
M Leung Wai for the accused

Sentence: 8 May 2006

SENTENCE

The charge

The accused is appearing for sentence on the charge of manslaughter which carries the maximum penalty of life imprisonment. To the charge the accused has pleaded guilty at the earliest opportunity.

The offending

As it appears from the summary of facts prepared by the prosecution, the accused and the deceased were best friends and were like brothers to one another. At the time of this incident the accused was 25 years old and the deceased was about 20 years old.

On Saturday morning, 12 June 2004, at about 9.00am, the accused, the deceased and a friend named Silao started off the morning by drinking kava at the kitchen of Silao’s family. After drinking kava, these three young men proceeded to the rugby field of their village of Siumu where they played rugby. At the end of the rugby games at about 6.00pm in the evening, the accused and the deceased proceeded on their separate paths to their respective homes. However, the accused did not reach his home. He ended up drinking a bottle of vodka with friends he met on his way home. The deceased also did not reach his home. He ended up drinking alcohol in front of the store of Samuelu Soisoi at Siumu. Later on in the evening, the accused went to the store of Samuelu Soisoi and there met up with the deceased. He told the deceased to wait at the store while he was going elsewhere. Later on in the evening, the accused met up with the deceased again. Apparently, these two young men had been drinking all the time while moving around from place to place in their village. The accused, the deceased, and another friend then went and drank alcohol under a tree opposite the house of the accused.

While drinking, the deceased requested the accused for some food. The accused then went to the house of his family and brought a plate of taros and a tin of herrings. The deceased then requested the accused to bring a knife to open the tin of herring and the accused went to this family’s house and got a knife. The knife was then given to the friend of the accused and the deceased to open the tin of herrings.

As the accused and the deceased were eating, they started to quarrel. The food became scattered. The friend of the accused and the deceased who was with them then held the deceased’s hand and led him away. The accused meanwhile was following with the plate of food. The deceased then punched the accused with his left hand causing the accused to fall to the ground. The accused must have then stood up because according to the prosecution’s summary of facts, the deceased punched the accused again causing the accused to fall down again. The deceased then staggered towards the accused and fell in front of him. Whilst on the ground, the deceased leaned towards the accused which made the accused brought up his left hand which was holding the knife. This was the knife used earlier on to open the tin of herrings. As a consequence of the accused bringing up his hand holding the knife, the deceased sustained a stab wound from which he died soon afterwards. There is no medical report on the wound to the deceased.

The accused

The accused is now 27 years old. He must therefore have been 25 years old at the time of the offence given his date of birth shown in the pre-sentence report. He has no formal employment but stays home and renders services to his family. He is also single. The accused is also a first offender and from the pre-sentence report and the testimonials of character attached thereto, it appears that the accused had been a person of good character prior to the commission of this offence.

As also mentioned earlier, the accused and the deceased were best friends and were like brothers. They were also related.

Mitigating circumstances

Counsel for the accused in his plea in mitigation referred to several mitigating factors. These are: the accused’s plea of guilty to the charge at the earliest opportunity; the fact that the accused is a first offender and was a person of good character prior to this offence; provocation from the deceased; absence of any premeditation on the part of the accused; in the whole of the circumstances the accused’s degree of culpability would be at the low end of the scale for manslaughter cases; the accused’s family had also performed a formal apology to the deceased’s family and had made a substantial contribution in terms of fine mats and foodstuffs to the funeral of the deceased.

The decision

As it would appear from the recent cases of Police v Phillip [1999] WSSC 1; Police v Pili [2005] WSSC 9; and Police v Tanielu Sione [2006] WSSC 16; the circumstances which give rise to the crime of manslaughter are so wide and varied that the sentences imposed by this Court for manslaughter have ranged from lengthy terms of imprisonment to non-custodial sentences such as terms of probation.

Given the circumstances of this case as set out, I have been considering whether to impose a suspended sentence or a term of probation. I have decided that it would not be appropriate to impose a suspended sentence, that is, impose a sentence of imprisonment and then suspend the whole of it for a specified period of time. Instead, I have decided to impose a term of probation given the young age of the accused, the fact that this offence is alcohol related, the fact that the accused’s degree of culpability is at the low end of the scale for cases of manslaughter, and all the other circumstances including the important fact that a life has been lost. A term of probation would also assist to set the accused’s life on the right track for the future whilst at the same time bring home to him the gravity of what has happened to his best friend, the deceased, as a result of their over-consumption of alcohol.

The accused is therefore convicted and sentenced to 2 years probation.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Leung Wai Law Firm for the accused