Police v Paselio [2008] WSSC 102 (12 December 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

FAATUI MAIAVA PASELIO
male of Sataoa Safata
Defendant

Counsel: Ms Faumuina-Tuuga for the prosecution
Mrs Hoglund for the defendant

Sentencing Date: 12 December 2008

SENTENCE BY JUSTICE VAAI

The accused

The accused is charged with assisting Ioapo Ioapo (the principal offender) in the assault of the deceased, of which assault caused the death of the deceased, thereby committing the crime of manslaughter. He pleaded guilty to the charge and now stands convicted of manslaughter.

The Offending

The amended statement of facts as submitted by the prosecution and confirmed by the accused are:
On the evening of 27th March 2007 the principal offender and the deceased had an argument inside a billiard place at Sataoa, Safata as a result of which the principal offender was evicted from the billiard place.

Later that evening the principal offender met up with the deceased. The principal offender assaulted the deceased.

Later on that same evening while the accused was walking home, he saw someone walked into his home. Infront of his house the accused met up with the principal offender who told the accused that the deceased was in his house. The principal offender also suggested that they should go inside and give the deceased a thrashing.

When they both entered the house the principal offender assaulted the deceased who fell on the ground. The accused joined by kicking the deceased on the side. The accused was then held back by his wife. Neighbouring families came and stopped the principal offender.

The deceased was carried outside and was left by the side of the road under a lamp post. The accused was present when the deceased was carried to the side of the road.

In the early hours of the morning 28th March 2007, the principal offender went to the side of the road where the deceased was lying and started kicking the deceased.

At about 4am the principal offender again went to the roadside and started kicking the deceased. This assault was seen by the accused who stopped the principal offender.

The deceased was taken to hospital that morning and admitted at 8:30am. He died on the 4th April 2007. Death was due to the failure of the vital centres of the brain, following intracranial haemorrhage as a result of blunt trauma to the head.

The accused

The accused is a 30 year old resident of the village of Sataoa, has a wife and 2 children. He is a first offender. His wife according to the probation report described the accused as a humble person who is very protective of his family. Testimonials provided by the mayor of the village and by the pastor of the Congregational Christian Church described the accused as an honest and trustworthy person.

Aggravating factors

Other than the gravity of the offence, the other aggravating factor is that the deceased was already down on the ground when he was kicked by the accused.

Mitigating factors

I accept from the prosecution summary of facts that the accused kicked the deceased once and the kick was not aimed at the head of the deceased. I also accept from the summary that the accused was not a party to the assault on the deceased by the road side. The probation report described the accused as truly remorseful and I accept that. A traditional ifoga by the accused’s family was accepted by the family of the deceased, as well as the contributions to the funerals are all indications of true remorse. A fine of 50 pigs imposed by the Village Council as punishment is a factor which the court is obliged to consider pursuant to the Village Fono Act. Finally he has an impeccable past record; he pleaded guilty at the earliest opportunity, and indeed it was the accused who intervened when the principal offender assaulted the deceased by the road side.

Sentence

I have had several discussions and heard submissions from prosecution counsels on the issue of whether the amended summary of facts reveal any offence by the accused bearing in mind that the injuries from the third assault of which the accused was not a party may have been the cause of death. I was referred to the recent Court of Appeal decision in The Attorney General v Alaimoana Kolio & others (unreported 19/9/08) but with respect to counsel, that case can be distinguished as all defendants were parties to all the assaults by their presence and/ or encouragement although some of them did not actually assault the deceased during all the incidents. However as defence counsel has insisted on the guilty plea I shall continue to sentence the accused on the basis that he was a party to the offence. What I have just said this morning in another sentence for manslaughter also applies in this case. The varying degrees of culpability involved and the varying wide range of circumstances attract sentences so widely disparate from lengthy custodial sentences to conditional releases. Special circumstances in this case satisfies me that a custodial sentence is not warranted. For this offence the accused is convicted and placed on probation for a period of 2 years on condition that he will perform 100 hours community work. He will also pay cost of prosecution through the Probation Service and within 6 months the sum of $2,000.

JUSTICE VAAI