Police v Tautunu [2006] WSSC 31 (22 May 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ILALIO TAUTUNU
male of Amaile.
Accused

Counsel: P Chang for prosecution
R Papali’i for the accused

Sentence: 22 May 2006

SENTENCE

The charge

The accused was initially charged with murder to which he pleaded not guilty. Counsel for the prosecution has informed the Court through her written submissions that when counsel for the accused subsequently indicated that the accused was willing to plead guilty to the lesser charge of manslaughter, the prosecution agreed to reduce the charge from one of murder to one of manslaughter. The accused then pleaded guilty to manslaughter.

The offending

As it appears from the summary of facts prepared by the prosecution at around 6pm on Friday, 19 November 2004, the accused was drinking alcohol with other boys at the village of Amaile in Aleipata. Later on at about 10pm he came across the deceased and some of the deceased’s friends drinking alcohol at the pool called Vai o Toma near the home of the Catholic priest at Samusu. The accused then asked the deceased and his friends whether they had any more beer left and the deceased replied there was none. The accused then told the deceased and his friends to leave the pool.

Whilst the accused was leaving the stream and making his way towards the main road, he heard a person call out. When he reached the main road he was told by a youth that some boys had sworn at the priest. The accused then picked up a piece of poumuli timber and ran to where the priest and the group of boys were on the road. This group of boys were the deceased and his friends. From what the priest who was called to testify as to a disputed part of the summary of facts told the Court, the said group of boys were moving away as he was following them. When the accused caught up with the deceased and his friends, he asked them what they have done to the priest. The accused then approached the deceased, raised the stick he was holding with both hands and hit the deceased on the head with it causing the deceased to fall down. The defence told the Court that when the accused reached the deceased and his friends, the deceased turned around holding up his tight fists as if he was ready to fight the accused.

According to the pre-sentence report prepared by the probation service, the deceased fell down unconscious from the blow delivered by the accused with the piece of poumuli. The priest and the accused then picked up the deceased and carried him to the house of the priest. The priest then took the deceased to the district hospital at Lalomanu. Later on the same night the priest and the accused brought the deceased to the hospital in Apia where the deceased was admitted. The priest then returned to Samusu, Aleipata, while the accused remained at the hospital to care for the deceased. The accused remained at the deceased’s bedside until dawn when a nurse told him to go home in case a relative of the deceased came and found him at the hospital.

The deceased

The deceased was a 33 year old male of the village of Amaile, Aleipata. There is no other information about him.

The accused

The accused is a 34 year old male from the village of Samusu, Aleipata, which is adjacent to the village of Amaile. He is single. He is also unemployed but helps out with his family’s plantation.

The testimonial from the Catholic catechist of Samusu shows the accused to be a good, hardworking and dependable servant of his church. The testimonial from the pulenu’u of Samusu shows the accused to be a well-behaved and well-liked member of his village. He is also said to be obedient of instructions given by his village and serves his church and his village well. A matai of the deceased’s family also addressed the Court and said that this matter has been settled with the matai of the accused’s family and there has been reconciliation and forgiveness.

The pre-sentence report prepared by the probation service also speaks of the accused as a person of good character who spends times during the day at the house of the priest of the village helping out with domestic chores. The accused also expressed deep remorse to the probation service and wishes to take full responsibility for his actions. He also told the probation service that he will live the rest of his life with the thought that he has caused the death of another human being.

The accused is also a first offender and from what has been said it appears that he was a person of good character prior to the commission of this offence.

Mitigating circumstances

After this incident, the accused and his family performed the traditional ifoga which was accepted by the family of the deceased. The family of the accused also made a presentation of fa’aaloaloga estimated to be worth about $10,000 to assist the family of the deceased with the funeral. This presentation included foodstuffs and the coffin of the deceased. There has been a reconciliation between the two families and forgiveness by the family of the deceased. Since this incident, the two families are now sharing a very strong tie.

The accused’s change of plea to one of guilty when the charge was reduced from one of murder to one of manslaughter and the fact that the accused is a first offender and was a person of good character prior to the commission of this offence are also mitigating circumstances. From all the circumstances I would also accept that the accused is truly remorseful. This is partly shown by the fact that after the accused had struck the deceased, he assisted in carrying the deceased to the house of the priest. He then accompanied the priest in bringing the deceased to the hospital in Apia where he remained at the deceased’s bedside at the hospital until dawn when he was advised by a nurse to go home in case a relative of the deceased came and found him there.

On the question of provocation there is real doubt whether the deceased swore at the priest. The testimony of Kolio Tauiliili who was called to testify due to a dispute in relation to a particular part of the summary of facts is that the deceased did not swear at the priest. Even the testimony of the accused does not show that the deceased swore at the priest. What appears to have happened was that the accused heard someone called out and when he reached the main road, a youth told him that a group of boys had sworn at the priest. It is not clear whether all of those boys swore at the priest or only one or some of them. It is also not clear whether the deceased who was one of the group did swear at the priest. Kolio Tauiliili who was one of the group has testified that the deceased did not swear at the priest. However, when the accused who was at the time holding a piece of poumuli caught up with the group of boys and asked the deceased as to who swore at the priest, the deceased raised his fists as if wanting to fight with the accused. The accused struck him with the piece of poumuli. In these circumstances, I hold there was an element of provocation but not substantial. I also accept that swearing at the priest of a village by a village youth can be provocative in certain circumstances as it was in this case but I would not regard that provocation to be in the category of the more serious kind of provocation which has appeared in other homicide cases.

Aggravating circumstances

The nature of the instrument used by the accused to strike the deceased with and the fact that he held the piece of poumuli with both hands and then struck the deceased with it are aggravating circumstances. I also take into consideration the need for deterrence in this type of case.

Sentences in recent manslaughter

In considering the appropriate sentence for this case, I wish to refer to some of the sentences that have been imposed by the Courts in some of the recent cases of manslaughter. These are:

(1) Attorney General v Uatisone Mani [1994] WSCA 16, the Court of Appeal in an appeal against sentence imposed a sentence of 3 years imprisonment plus $1000.

(2) Police v Chris Phillip [1999] WSWC1, Wilson J imposed a suspended sentence of 3 years on the conditions that the accused was to be of good behaviour and to be under supervision by the probation service.

(3) Police v Simone Tiapuu[1999] WSSC 6, Wilson J imposed a sentence of 2 years imprisonment.

(4) Attorney General v Howard Maumasi [1999] WSSC 19, the Court of Appeal on an appeal against sentence imposed a sentence of 5 years imprisonment.

(5) Police v Feiloaimauso Utueli Gali [1999] WSSC 19, Wilson J imposed a sentence of 3 years and one month imprisonment.

(6) Police v Hile Vaalelei [2002]WSSC 26, Vaai J imposed a sentence of 18 months imprisonment.

(7) Police v Matiasi Togafau Pili [2005] WSSC 9, Sapolu CJ imposed a sentence of 2 years probation.

(8) Police v Meapala Tanielu Sione [2006] WSSC6, Sapolu CJ imposed a sentence of 5 years imprisonment.

(9) Police v Pelenato Tofaeono [2006] WSSC 23, Sapolu CJ imposed a sentence of 2 years probation.

(10) Police v Siaosi Matalavea(2006) (unreported decision delivered on 19 May 2006) Sapolu CJ imposed a sentence of 2 years imprisonment.

The cases cited show that within the maximum penalty of life imprisonment, the Courts have imposed sentences for manslaughter which range from terms of probation to 5 years imprisonment depending on the circumstances of each case. This reflects the wide range of different circumstances which give rise to the offence of manslaughter. It also shows that it is most difficult to decide on a general tariff for sentencing in manslaughter cases.

The decision

In the circumstances of this case, I take 5 years imprisonment as the appropriate starting point for sentence. I will deduct 1/3 for the accused’s change of plea to guilty when the original charge of murder against him was reduced to one of manslaughter. That leaves a sentence of 3 years and 4 months imprisonment. I give credit to the accused for the other mitigating circumstances including the seven or eight days he was remanded in custody. I also take into consideration the aggravating circumstances and the gravity of the offending.

In all the circumstance, the accused is convicted and sentenced to 3 years imprisonment.

CHIEF JUSTICE