Police v Aisea [2006] WSSC 47 (30 August 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

SINU’U AISEA aka ASAFO AISEA
male of Falelima, Lelepa and Vaimoso.
Accused

Counsel: A Lesa for prosecution
M Tuatagaloa for accused

Sentence: 30 August 2006

SENTENCE

The charge

The accused was originally charged with murder. That charge was later withdrawn and substituted with the charge of manslaughter. The accused then pleaded guilty to the substituted charge.

The offending

The circumstances of the offending in this case are to be gathered from the summary of facts prepared by the prosecution, the pre-sentence report prepared by the probation service, and what counsel for the accused told the Court without objection from the prosecution.

In the morning of 12 December 2003, the accused and a male cousin bought a 40-ounce bottle of whiskey and started drinking it at the accused’s house at Vaimoso. In the afternoon, the accused and his cousin went to Vaivase-tai where they bought a 40-ounce bottle of vodka and drank it in front of the Samoa College compound. After the vodka, the accused and his cousin bought another bottle of spirit and started to drink it. This is the bottle of spirit they took with them to the RSA Club in Apia later that afternoon.

The accused and his cousin arrived at the RSA Club at about 4:00pm. They were both intoxicated. The deceased who was a security guard on duty at the RSA Club ejected the pair from the Club for bringing in their own alcohol without permission and for drunken behaviour.

According to the prosecution’s summary of facts, whilst the deceased was escorting the accused outside of the Club, the accused was attempting to resist. The deceased was behind the accused pushing him towards the exit door. He was holding the accused by the collar of his shirt and both were facing the exit door. The accused then turned around and produced a kitchen knife, about 31cm long, with a blade of about 3cm wide. The knife was secreted in the left pant pocket of the accused which he later admitted to having put there. The accused stabbed the deceased in the stomach and they both fell to the ground. The accused then picked himself up and fled the scene.

According to counsel for the accused, her instructions from the accused were that, the accused’s cousin was removed first from the RSA Club and then beaten up by the deceased. The deceased then returned inside the Club and tried to bring out the accused. As they came near the exit door, the deceased was still holding on to the accused who was trying to free himself and run away. The accused then saw his cousin lying unconscious outside of the Club and, being concerned about his own safety, took out his knife and with a back-hand movement stabbed the deceased in the stomach.

After the deceased was stabbed, he was rushed to the Tupua Tamasese Meaole Hospital for treatment but he died shortly after arrival. A post-mortem examination revealed that the knife penetrated through the deceased’s abdominal wall and also his spleen.

The accused

The accused is a 23 year old male from Vaimoso and Lelepa in Savaii. He finished school at primary school level and was employed at different jobs by different employers until this year when he found a job with a lawn care services company. He has a de facto wife and a seven year old son who both depend on him for their livelihood.

The pre-sentence report prepared by the probation service and the testimonials attached thereto show the accused to be a first offender. He is also shown to be a quiet and obedient person upon whom his family depends for their livelihood. The testimonial from his last employer shows the accused to be a reliable and punctual worker.

Thus it would appear that the accused was a person of good character before the commission of the present offence.

The deceased

The deceased was a 45 year old male from the same village of Vaimoso as the accused. He was a security officer. He was also married with seven children.

Aggravating circumstances

The accused and his cousin were already highly intoxicated, having drunk a substantial quantity of alcohol, when they arrived at the RSA Club. Their action of bringing their own alcohol into the Club without any permission and their drunken behaviour inside the Club are aggravating circumstances. They were the circumstances that caused the deceased to act in the way he did as a security guard for the Club. Unfortunately, in trying to carry out his duty, the deceased was fatally stabbed.

The carrying by the accused of a concealed weapon such as a knife into a public place like a club where people go for a drink and to relax and enjoy themselves was potentially very dangerous behaviour, especially when the accused was already highly intoxicated. The action by the accused is indicative of the type of attitude he had at the time. It also suggests there was a degree of pre-meditation on his part when he stabbed the deceased. The action by the accused of deliberately carrying a concealed knife into the RSA Club and his subsequent intentional use of that knife to stab the deceased who was only carrying out his duty are serious aggravating circumstances.

I am also not satisfied from the material that was placed before the Court that the actions by the deceased when escorting the accused to the exit door were provocative. But even if such actions were provocative, the retaliation was wholly disproportionate. What the accused should have done was to leave the RSA Club in peace for he and his cousin were not supposed to bring any alcohol into the Club without permission and they were both behaving in a drunken manner.

Mitigating circumstances

The only mitigating circumstances in this case are the accused’s plea of guilty to the substituted charge of manslaughter and the fact that he is a first offender.

The decision

Samoan law has accepted the categorisation of manslaughter into voluntary and involuntary manslaughter: Police v Simoni Tiapu’u [1999] WSSC 6 per Wilson J. With voluntary manslaughter, the accused is charged with murder. All the elements, including the intent to cause death or bodily harm known to be likely to cause death, which are required for murder are present. However, due to provocation the charge of murder is reduced to manslaughter. This will be voluntary manslaughter. Involuntary manslaughter would be the type of manslaughter where neither the intent to cause death or bodily harm known to be likely to cause death, nor any other intent required for murder, is present. The law recognises two forms of involuntary manslaughter. These are unlawful and dangerous act manslaughter and manslaughter by criminal negligence. See The Queen v Lavender [2005] HCA 37; and Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313, 333 on this issue.

The manslaughter in this case comes under the category of involuntary manslaughter as I do onto believe that the charge was reduced from murder to manslaughter by reason of provocation. The form of involuntary manslaughter within which this case comes is manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury.

I have also come to the view that the retribution and deterrence aspects of sentencing should be given much weight in this case. On the retribution aspect, a custodial sentence is plainly justified having regard to the seriousness of the offence and the degree of culpability on the part of the accused. Manslaughter is a serious offence because it always involves a loss of human life. In this case the accused deliberately entered the RSA Club with a concealed knife notwithstanding that he was already highly intoxicated. When escorted to the exit door by the deceased, he resisted. He then stabbed the deceased and ran away. This conduct of the accused is also the type of intentional conduct which calls for a deterrent sentence. The taking of weapons like knives or guns into a nightclub where members of the public go for a drink and enjoy themselves is potentially a most dangerous act and must be severely discouraged. Likewise, fatal or life-threatening attacks on security officers who are on duty to protect the safety and security of a nightclub and of the members of the public who go to it must also be severely deterred. The safely of security guards for Clubs in Apia is an important consideration and the Court may impose more severe sentences in the future than in this case.

In saying all of this, I am mindful that in the last seven years, the longest custodial sentence imposed by a Samoan Court for manslaughter was 5 years imprisonment: see Police v Ilalio Tautunu [2006] WSSC 31. That range of sentences would have to be reviewed soon.

I also take into account the mitigating circumstances.

In all the circumstances, the accused is convicted and sentenced to 5½ years imprisonment. The times during which the accused was remanded in custody are to be subtracted from that sentence.

CHIEF JUSTICE