Police v Simanu [2007] WSSC 5 (12 February 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

TOTINI SIMANU
male of Vailele
Accused

Counsel: P Chang for prosecution
L Tuala for accused

Sentence: 12 February 2007

SENTENCE

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

The prosecution’s summary of facts which was confirmed by the accused and his counsel shows that at the village of Vailele on Friday, 16 December 2005, at about 8pm in the evening, the deceased who was then 16 years old was heading home with his siblings after attending a church service. On their way, the accused who was then 14 years and 9 months old swore at the deceased and his siblings in front of the LMS Hall at Vailele. The deceased’s siblings walked ahead but the deceased approached the accused. An argument ensued between the deceased and the accused ending up in a fist fight. The accused being unable to beat the deceased barehanded picked up a store and threw it at the deceased before he ran away. The stone hit the deceased on the left ear causing the deceased to bleed. The deceased then walked home complaining of his injury to his siblings who had apparently waited for him when he approached the accused. When they reached home, the deceased laid down while his siblings attended to him with a wet cloth and hot water to soothe his pain. Later the deceased’s parents tried to sit him up but the deceased vomited blood and bled from his nose. He was taken to the National Hospital the same night in a semi-conscious condition. The following afternoon at about 3:30pm the deceased died. Perhaps I should point out here that a slightly different account of what happened which appears in the pre-sentence report was not adopted by the accused or his counsel.

Both the deceased and the accused were attending school at the time of this incident. When this incident occurred, the accused stopped going to school and found a job as a handy-man at a supermarket. He is still working at that job but his counsel told the Court that the accused wants to return to school.

The pre-sentence report shows that the accused lives with his parents at Vailele and his parents are hard on him in terms of discipline. The pre-sentence report also shows that the accused had been a person of good character and was making good progress at school before this incident occurred. The accused is also a first offender. Counsel for the accused also informed the Court that the accused is remorseful.

After the occurrence of this incident, the family of the accused made an ifoga to the family of the deceased. A large fine mat, twenty small fine mats, and $800 were presented. The ifoga was accepted by the family of the deceased. So there has been a reconciliation between the accused and his family and the family of the deceased. The family of the accused also presented fifty boxes of herrings, three large pigs, forty small fine mats and a large fine mat to the village council of Vailele as their punishment by the village.

The most compelling mitigating feature of this case is the young age of the accused. He was 14 years and 9 months old at the time of the offence having been born on 18 March 1991 as shown from the pre-sentence report. Other mitigating features of this case which weigh in favour of the accused are his plea of guilty to the charge at the earliest opportunity, the fact that he is a first offender and was a person of good character prior to the commission of this offence, the ifoga performed by the accused’s family and accepted by the deceased’s family and the consequential reconciliation, and the substantial fine paid by the accused’s family to the village council. On the other hand, a loss of life due to an unlawful act is always a very serious matter. The seriousness of the crime of manslaughter is evident from the maximum penalty of life imprisonment imposed by law. It was also the accused who provoked the deceased and which resulted in the argument and fist fight and the accused throwing a stone at the deceased. The fact that the stone hit the deceased on the left ear suggests that the throw was aimed at the deceased’s head.

In passing sentence on a young first offender, the age of the offender is a most significant mitigating feature. Rehabilitation rather than retribution or deterrence is usually the primary objective. The reason for this is the concern of the Courts that a custodial sentence is likely to expose a young first offender to corrupting influences and therefore the risk that such an offender will be worse off at the time he comes out compared to what he was when he went in and that may cause him to embark on a path of crime. In consequence, a non-custodial sentence such as a term of probation is usually imposed in the case of a young first offender in the hope such sentence will reform the offender. However, there are cases where the gravity of the offence is so great that the only appropriate sentence in the circumstances is one of imprisonment notwithstanding the youth of the offender and his previous good character. This has been the approach of the Samoan Courts for many years when sentencing young first offenders. There are also a number of authorities in other jurisdictions where the same kind of approach has been followed.

In Police v Solomona Salu Saipele [2006] WSSC 1, I referred to the Australian case of R v MA [2004] NSWCCA 92 where Dunford J, with the concurrence of the other members of the New South Wales Court of Criminal Appeal presiding in that case, said:

"[27] Deterrence, retribution and protection of the community are not to take precedence to the exclusion of rehabilitation, but neither is rehabilitation to take precedence over deterrence, retribution and punishment. All must be balanced in the overall synthesising of the sentence.

"[28] It is true that in the case of young offenders, there is "generally greater emphasis given to rehabilitation and less to "deterrence than in the case of adult offenders, but that depends in part on the age of the young person and the circumstances of the offence; and there comes a point at which the seriousness of the crime committed by a young offender, particularly if a crime of violence, is so great that the special attention normally given to rehabilitation in the case of young offenders must give way, and greater emphasis given to punishment and deterrence. The relevant principle was summarised in the joint judgment of this Court in R v AEM Snr and Ors [2002] NSWCCA 58 at [97] - [98] as follows:

"It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation ... However important as that principle, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society."

The Court in R v MA also quoted from R v Nicholas (1991) 57 A Crim R 391 where Lee AJ said at p. 395:

"However, there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature so great, that the principle must, in the public interest, give way."

Reliance was placed on behalf of the accused in this case on the case of Police v Pelenato Tofaeono [2006] WSSC 23 in support of a submission for a non-custodial sentence. In that case, the accused who was 25 years old and the deceased who was 20 years old were best friends and had been playing rugby after which each of them went to his home. Instead of going straight home, each of them became heavily involved in the consumption of alcohol. They met up again near the home of the accused’s family later that evening when both of them were drunk. They then drank some more alcohol. Later on the deceased was hungry and asked the accused for some food. The accused went to the nearby house of his family and obtained a plate of taros and a tin of herrings. The deceased then again asked the accused to obtain a knife to open the tin of herrings and the accused returned to his family’s house and obtained a knife. After they ate they started to quarrel and the deceased punched the accused twice causing the accused to fall to the ground each time. When the accused fell down the second time, the deceased staggered towards the accused and fell next to him. It caused the accused who was still on the ground to bring up his hand which was holding the knife that had been used to open the tin of herrings. That caused an injury from which the deceased later died. From those facts, it was clear that the accused’s level of culpability was at the low end of the scale. There was also provocation form the deceased. The accused was also a first offender and he pleaded guilty to the charge of manslaughter at the earliest opportunity. His family also performed a ifoga which was accepted by the family of the deceased and they also made a substantial contribution in terms of fine mats and foodstuffs to the funeral of the deceased. There was also no aggravating circumstance in that case. In all of those circumstances, a sentence of 2 years probation was imposed.

In the other manslaughter case of Police v Matiasi Togafau Pili [2005] WSSC 9 where a sentence of 2 years probation was also imposed, the accused who was a 17 year old student had returned home on Saturday from decorating his village church for Sunday service when he heard someone calling out his name from the main road. When he came out of his house, he saw the deceased who was then 20 years old and with whom he had had an argument the previous day. He then walked towards the deceased. When he reached the deceased, the deceased punched him. The accused managed to evade the punch and then threw a punch back which landed on the left side of the accused’s face causing the latter to fall down. The accused then walked back to his family’s house. A little later, the accused and a cousin returned to check on the deceased. They found the deceased still lying where he had fallen. They then carried the deceased to their family’s home where the deceased started to regain consciousness. The accused and his cousin then gave the deceased a shower and then took him in their family’s pick-up vehicle to his home. The deceased died the following night at the hospital. The accused who was a first offender pleaded guilty to the charge of manslaughter at the earliest opportunity. The family of the accused performed a ifoga which was accepted by the family of the deceased. They also paid a substantial fine to their village council. In all the circumstances, the accused was sentenced to a term of probation for 2 years.

The facts of Police v Pelenato Tofaeono and Police v Matiasi Togafau show that the level of culpability of the accused in each of those cases was at the low end of the scale. In the present case, it was the accused who provoked the incident that occurred by swearing at the accused and his siblings. He then argued and then fought with the deceased. In the course of the fight he threw a stone which hit the deceased on the left ear. The deceased died as a result. I am of the view that in the particular circumstances of this case, greater emphasis should be given to deterrence and punishment.

The accused is convicted and sentenced to 18 months imprisonment. If he had been an adult, I would have imposed a much more lengthy term of imprisonment. I recommend that the accused should serve his sentence at the newly established Olomanu Juvenile Centre which is a Centre for the rehabilitation of young offenders.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Kruse, Enari & Barlow Solicitors