Police v Futialo [2007] WSSC 3 (26 January 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

LOMANI FUTIALO aka LOMANI ETI
male of Lotosoa Saleimoa
Accused

Counsel: A Lesa for Prosecution
HJ Schuster for Accused

Sentence: 26 January 2007

SENTENCE

The charge

The accused is charged with the crime of manslaughter which carries a maximum penalty of life imprisonment. Counsel for the accused informed the Court that the original charge of murder had been withdrawn. To the charge of manslaughter the accused pleaded guilty at the first available opportunity.

The offending

The accused and the deceased were related, the deceased being the accused’s brother in law. There had been differences and tension between the two of them because the deceased had used money from their lawn mowing business for his own purposes.

On Saturday night, 28 January 2006, after 8pm, the deceased who had been drinking beer came home at Lotoso’a, Saleimoa, drunk. He wanted to fight the accused. His mother and sisters tried to calm him down in the sitting room of their house.

The accused who was sleeping in his room heard the commotion in the sitting room and came out of his room. He approached the deceased and asked him what all the commotion was about. The accused then punched the deceased on the left side of his face and the deceased fell on his mother’s walker. The deceased tried to stand up but the accused threw a second punch which again landed on the deceased’s face causing him to fall to the floor. The deceased then lay on the floor and complained about the pain in his left jaw while the accused went back to sleep. The deceased’s mother and sisters attended to the deceased’s injuries until he fell asleep at about midnight. On early Sunday morning before 8am, the deceased’s mother came to wake up the deceased but found him dead. The deceased was then taken to the National Hospital at Motootua where he was officially pronounced dead.

The accused

The accused is a 35 year old male from the village of Lotoso’a, Saleimoa. The deceased is his brother in law. He lives with his wife and children at the family of his wife which is also in Lotosoa, Saleimoa.

The pre-sentence report and the testimonials for the pastor and the pulenuu (mayor) of the accused’s village show that the accused had been a person of good character prior to the commission of this offence. This is the first time the accused has committed a criminal offence or any offence within his village. So he is a first criminal offender as well as a first village offender.

The pre-sentence report also states that this matter has been reconciled through a traditional ifoga performed by the accused and his family. A large fine mat together with cartons of herring, cartons of turkey tails and other foodstuffs all estimated at $4,000 were presented by the accused and his family.

The deceased

The deceased was a 34 year old male. As already mentioned, he was the accused’s brother in law.

Mitigating circumstances

The accused’s plea of guilty to the charge of manslaughter at the earliest opportunity and the fact that he is a first offender are mitigating circumstances. Counsel for the accused also informed the Court during his plea in mitigation that the accused was co-operative with the police during the inquiries by the police. In fact on the day the deceased died, the accused came to the Apia Police Station where he was remanded in custody. I would also accept that the accused is truly remorseful and the thought that he has killed his own brother in law will remain with him for a long time, if not for the rest of his life.

There was also an element of provocation in that the deceased has used for his own purposes some of the money from the lawn mowing business which had been operated by the accused and himself which resulted in tension between the two of them. Then on the fatal night, the deceased came home drunk and wanted to fight with the accused.

The formal apology made by the accused and his family and accepted by the family of the deceased is another mitigating circumstance.

The decision

Sentences ranging from terms of probation to custodial sentences of 18 months to 5 years imprisonment have been imposed in cases of manslaughter: see Police v Ilalio Tautunu [2006] WSSC 31. Such a wide range of sentences reflects the fact that of all the crimes, manslaughter embraces not only the widest variety of circumstances in which it can be committed but it also attracts the widest range of sentences.

Having regard to the circumstances of the offending in general and the mitigating circumstances in particular, I take 5 years as the starting point for sentencing in this case. I give the accused a 1/3 discount for his plea of guilty to the charge of manslaughter at the first available opportunity. That leaves a sentence of 3 years and 4 months imprisonment. I deduct a further 4 months for the other mitigating circumstances. That leaves 3 years imprisonment.

The accused is accordingly convicted and sentenced to 3 years imprisonment.

CHIEF JUSTICE