Police v Ausage [2007] WSSC 28 (30 April 2007)

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The accused was initially charged with the crime of murder which carries the mandatory penalty of life imprisonment and the crime of killing an unborn child under s.73(1) of the Crimes Ordinance 1961 to which he pleaded not guilty. When the charge of murder was reduced to manslaughter the accused, through his counsel, vacated his not guilty plea and pleaded guilty to manslaughter. It seems that the prosecution has abandoned the charge of killing an unborn child and proceeded only with the charge of manslaughter for the purpose of sentencing.

The accused is a male from the village of Sapapalii in Savaii. At the time of this offence he was 42 years old. The deceased was a female from the village of Satitoa in Aleipata. At the time of her death she was 40 years old. The accused and the deceased had been married for 21 years and at the time of this offence were living as husband and wife with their six children at Satitoa, the village of the deceased. The children are between 7 and 22 years old. At the time of the offence, the deceased was about 8 months pregnant.

The accused and the deceased were members of the Methodist Church at Satitoa. In 2003, the accused and other members of his church went to New Zealand on a fundraising trip for their church. As it appears from the pre-sentence report, the accused told the probation service that upon his return from New Zealand he heard rumours that his wife had had an affair with another male of their village while he was in New Zealand. When he questioned his wife about the rumours, she kept denying them. The matter finally ended up before the pastor of their church where the deceased (wife) admitted the rumours were true. The village council then penalised the deceased and the male concerned in the adultery. This occurred in April 2004, about two months before this offence occurred. The accused told the probation service that even though he found his wife’s infidelity difficult, he was able to forgive her.

On Monday evening, 28 June 2004, a church meeting was held at the residence of the Methodist pastor of the accused and the deceased’s church. As it appears in the pre-sentence report from what the accused told the probation service and in the cautioned statement the accused gave the police, the deceased, who was then about eight months pregnant, wanted the accused to go to the church meeting at the pastor’s residence but the accused did not want to go. The accused said he wanted to stay home to look after his young son who was suffering from fever. However, the deceased urged him to go to the church meeting and that their son would be taken to her older sister who stays at the seaward side of the village. The accused insisted that he would stay home to look after his son. According to the accused, this exchange resulted in the deceased asking him whether the reason he was not going to the church meeting was because of his jealousy over her previous extra-marital affair. This made the accused very angry. He lost his temper. He picked up a rock which was being used to hold down a mosquito net and threw it at the deceased. It hit the deceased on the jaw. She screamed.

From this point on, it appears from the summary of facts admitted by the accused that the accused then covered the deceased’s mouth with his left hand but she bit down on his fingers. The accused then held the deceased’s throat with his right hand in an attempt to have her let go of his left hand but she continued to bite down on his fingers. The accused then grabbed one of his children’s t-shirts and tried to put it in the deceased’s mouth so that she would release his left hand but again the deceased did not let go. The accused then used his left leg to move towards him another stone which was being used to hold down the mosquito net. When the accused was able to reach that stone, he picked it up with his right hand and hit the back of the deceased’s head with it three times. The deceased then loosened her jaw releasing the accused’s left hand. She then began to moan and the accused left the scene and made his way to Apia where he is now staying with relatives at the village of Magiagi.

A post mortem was conducted by a pathologist on the deceased at the Tupua Tamasese Meaole Hospital in Apia on 2 July 2004. The post mortem report prepared by the pathologist shows the following injuries were found on the deceased.

2. A lacerated wound measuring ¾" x 1/3" x soft tissue depth over the right side of the chin.

3. A lacerated wound measuring 1" x 1/3" soft tissue depth over the posterior part of the right ear.

4. A haematoma measuring 4" x 4" was present over the lateral most part of the right side of the face in front of the right ear.

5. Twelve scattered abrasions between the sizes of ½" to ¼" were present under the chin and upper part of the neck.

6. A contusion (bruise) measuring 1½" x ½" over the left side of the middle of the neck.

1. A haematoma measuring 4½" x 2¾" over the left temporal and posterior part of the left parietal regions of the scalp.

3. A subdural clotted blood over an area of 3¾"x 1¾" over the left temporal and left parietal lobes of the brain.

The external injuries found by the pathologist show that they were all around the neck and the right side of the deceased’s head and face. The internal injuries suggest that much force was used when the accused hit the head of the deceased with a stone.

Mr Roma in his plea in mitigation on behalf of the accused referred to a number of mitigating features. He referred to the accused’s plea of guilty at the earliest opportunity when the initial charge of murder was reduced to manslaughter. He also referred to the fact that the accused is a first offender and was a person of previous good character. He also submitted that the accused cooperated with the police as shown by the fact that he voluntarily presented himself to the police and then made a full confession as shown by his cautioned statement given to the police.

Counsel also submitted that there was no premeditation on the part of the accused to cause death to the deceased and that the stone used by the accused to hit the head of the deceased three times was lying at the scene of the offence being a stone used to hold down a mosquito net inside the house of the accused and the deceased where this most unfortunate incident occurred. In other words, the accused did not bring the stone to the scene with any intention to use it to cause injuries or death to the deceased.

Mr Roma also submitted that there was an element of provocation involved in this case. The deceased had been unfaithful to the accused while he was in New Zealand on a fundraising trip of their church. The deceased had admitted to her infidelity before the pastor of their church and was penalised by the village council two months before this incident occurred. Even though the accused had forgiven the deceased and the matter was settled, the anger of the accused was rekindled when during the exchange between him and the deceased on the evening of this incident the deceased made reference to her previous extra-marital affair. Counsel also pointed out that the accused was further provoked by the deceased biting into his fingers and that the reason why the accused hit the deceased’s head three times with a stone was in order to make her let go of his fingers.

Counsel also pointed out that the accused has already been punished as he is now banished from Satitoa, the village of the deceased. The accused will also live the rest of this life with the thought that he had caused the death of his own wife. The family of the accused had also performed a ifoga to the family of the deceased and it was accepted. At the ifoga the accused’s family presented 60 boxes of herrings, one cattle beast, two large pigs, ten large fine mats, and a monetary sum of $2,000.

Mr Lesā for the prosecution submitted that the viciousness of the attack on the deceased by the accused and the vulnerability of the deceased who was then about eight months pregnant are aggravating features in this case. Counsel also submitted that the multiple abrasions found by the pathologist on the upper part of the deceased’s neck suggest that the deceased must have been strangled by the accused.

Mr Lesā also submitted that the action by the accused in leaving his wife who was in need of assistance without providing any assistance or notifying anyone that his wife was in need of assistance is also an aggravating feature. The accused told the probation service, as it appears from the pre-sentence report, that when he left the scene of this incident he was thinking of returning home as soon as things cooled down. But when he saw the car of their pastor rushing to his home he knew that something serious had happened. He therefore made his way to Apia.

Mr Lesā provided the Court with a copy of the Guideline-Manslaughter by Reason of Provocation published by the English Sentencing Guideline Council in 2005. This document is based on extensive consultations carried out by the English Sentencing Advisory Panel and by the English Sentencing Guidelines Council and a consultation paper published by the Sentencing Advisory Panel entitled: Consultation Paper on Sentencing of Manslaughter by Reason of Provocation (11 March 2004). I have found the Guideline-Manslaughter by Reason of Provocation published by the English Sentencing Guidelines Council to be very useful and of value for this case. No doubt it will also be very useful for sentencing purposes in other cases of manslaughter by reason of provocation. I am therefore grateful to counsel for the prosecution for his industry in finding this document and bringing it to the attention of the Court.

There are parts of the Guideline that I wish to refer to because of their special relevance to this case. At p.4 under the heading Factors Influencing Sentence, it is stated:

"In assessing the degree of provocation, account should be taken of the following factors:

"discovery or knowledge of the infidelity on the part of a partner does not necessarily amount to high provocation. The gravity of such provocation depends entirely on all attendant circumstances."

"When looking at the nature of the provocation the Court should consider both the type of provocation and whether, in the particular case, the actions of the victim would have had a particularly marked effect on the offender:

"actual (or anticipated) violence from the victim will generally be regarded as involving a higher degree of provocation than provocation arising from abuse, infidelity or offensive words unless that amounts to psychological bullying."

"Post-offence behaviour is relevant to the sentence. It may be an aggravating or mitigating factor. When sentencing, the Judge should consider the motivations behind the offender’s actions."

Then at p.l0, the sentence ranges and starting points for consideration of what should be the appropriate sentence to be imposed in a case of manslaughter by reason of provocation are set out as follows:

Type/Nature of Activity: Sentence Ranges & Starting Points

Low Degree of provocation: Sentence Range: 10 years-life
A low degree of provocation occurring Starting Point – 12 years custody
over a short period

Substantial degree of provocation: Sentence Range: 4-9 years
A substantial degree of provocation
Occurring over a short period Starting Point – 8 years custody

High degree of provocation: Sentence Range: if custody is necessary,
A high degree of provocation occurring up to 4 years
Over a short period
Starting Point – 3 years custody

Sentences in domestic violence manslaughter cases in comparable jurisdictions

There is no reported Samoan case of manslaughter which involves domestic violence. This is because it is very seldom that such a case is brought before the Court. Counsel for the prosecution has therefore referred to some of the cases in other comparable jurisdictions where the Courts have passed sentence in cases of domestic manslaughter. I have looked at some of those cases and it is somewhat difficult to follow a sentencing pattern from them. This is because of the wide range of varying circumstances which give rise to the crime of manslaughter, a fact that counsel for the prosecution is well aware of.

In the Australian cases cited by counsel, the accused in R v Auberson [1996] QCA 321 was tried for murder for killing his wife and was found guilty of manslaughter. He was found to have strangled his wife, beat her over the head with a bathroom scale at least twice, and then cut her throat with a knife. The accused was sentenced to 9 years imprisonment. It was also found that when the accused asked the victim whether she had a boyfriend she said yes. In the case of R v Smith [2000] QCA 169, the accused who was convicted of manslaughter after a trial for the alleged murder of his wife was sentenced to 9 years imprisonment. It was found that the accused killed his wife by smashing her skull on a concrete floor.

In New Zealand in the case of R v King [2006] NZCA 211, the accused stood trial for the alleged murder of her husband by putting an overdose of sleeping pills in his meal. She then buried her husband near their house. After several years, she dug up his remains and burnt them. She was found guilty of manslaughter and sentenced to 4 years and 3 months imprisonment. In the case of Blackmore v R [2005] NZCA 102, the accused was convicted of manslaughter after a trial for the alleged murder of his de facto partner. The accused was sentenced to 11 years imprisonment. It appears from the judgement of the New Zealand Court of Appeal that the accused carried a knife to the address where the victim was staying, invaded the apartment in which she was staying, and stabbed the victim on the back. So there was premeditation. There was also a low level of provocation. The accused also had previous convictions for violent offences. The Court also said that the case was close to the murder end of the scale. In the case of R v Ruru [2002] NZCA 21 the accused pleaded guilty to manslaughter for killing his de factor partner. He was sentenced to 7 years imprisonment. In that case, the Court referred to other cases of domestic manslaughter, namely, R v Maru (CA 449/06, 26 July 2001) where the accused was sentenced to 5 years imprisonment, R v McLead (CA 112/94, 27 May 1994 where the accused was sentenced to 4 years imprisonment, and R v Tepu (T889/98, 21 June 1998) where a sentence of 8 years imprisonment was imposed. No doubt there are other cases of domestic manslaughter in Australia and New Zealand. But the cases of domestic manslaughter that I have referred to show that the wide range of prison sentences imposed by the Courts in such cases depend primarily on the circumstances of each case. This is why, in my respectful view, the Guideline published by the English Sentencing Guidelines Council is very helpful and of great value. It provides guidance to a sentencing Judge and helps to bring an orderly and systematic approach to the range of sentences to be imposed in cases of manslaughter by reason of provocation.

The present case is one of manslaughter by reason of provocation for the reason that the accused became very angry and lost his temper when the deceased during their argument on the evening of this unfortunate incident made reference to her previous extra-marital affair for which she had been penalised by the village council two months before. In terms of the Guideline, knowledge by one spouse of the other spouse’s infidelity does not necessarily amount to high degree provocation unless the circumstances of the case require a different conclusion.

In my view, the knowledge by the accused of the deceased’s infidelity and the re-mention of it by the deceased do not bring this case within the category of "high degree provocation." But it would fall within the category of "substantial degree provocation" particularly when the reference by the deceased to her previous extra-marital affair was shortly followed by the firm biting by the deceased of the accused’s left fingers. The starting point for sentence would therefore be 8 years imprisonment. I will deduct 25% for the accused’s plea of guilty when the charge was reduced from murder to manslaughter. I will deduct a further 15 months for the other mitigating features including the ifoga which the Samoan Courts are required by law to take into account for sentencing purposes. I will then add on 9 months for the aggravating features taking into account the need for deterrence in this type of case which involves domestic violence.

Solicitors
Attorney General’s Office, Apia for prosecution
Ameperosa Roma Law Office for accused

Supreme Court of Samoa

Police v Ausage [2007] WSSC 28 (30 April 2007)