Police v Lagalaga [2008] WSSC 103 (12 December 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

SIONE FAOA LAGALAGA
male of Lotofagā and Manono
Defendant

Counsel: Ms Faumuina-Tuuga for the prosecution
Ms Papalii for the defendant

Sentencing Date: 12 December 2008

SENTENCE BY JUSTICE VAAI

The accused

1. The accused is a 37 year old male of the village of Lotofagā, Safata. He is a divorcee with no children. As a result of the offence for which he now appears for sentence, he has been banished from Lotofagā. He is currently living with his brother at Salua, Manono.

The Offence

2. The accused was originally charged on information with murder to which he pleaded not guilty. When the prosecution withdrew the murder charge and substituted it with manslaughter, the accused pleaded guilty to the substituted charge. He now stands convicted of manslaughter. By his guilty plea he acknowledged that at Lotofagā Safata on the 4th September 2007 he, by an unlawful act, namely assault, caused the death of the deceased, thereby committing the crime of manslaughter.

3. The circumstances of the criminal offending were as follows:

(i) On the 4th September 2007 at Lotofagā, Safata at about 8 o’clock at night, the deceased and the accused’s adopted brother had an argument resulting in a fight.

(ii) The accused was returning from a local store when he saw the fight. According to the prosecution summary of facts the deceased had his hands wrapped around the accused’s brother. The accused grabbed a 2″ x 4″ plank and struck the deceased at the back of the head causing the deceased to fall.

(iii) The deceased was taken to the National Hospital (TTM) where he died three days later.

(iv) The cause of death was diagnosed to be due to the failure of the vital centres of the brain, due to raised intracranial pressure following injury to the head.

The Deceased

4. The deceased was a 47 year old man also of Lotofagā but originally from Tonga. He was married with seven children ranging from seven years to twenty three years. Before his death the deceased was the sole provider for the family by fishing and running a plantation.

5. In the Victim’s Impact Report the widow stated:

"My children are at present missing the deceased very much. Especially when they have problems at home, they have memories of the deceased being there for them and supporting them and making sure that everything is good in their family. Now that the deceased is no longer with my children, I do not know who to turn to."

Aggravating Factors

6. Prosecution contended that the aggravating features of the accused’s offending are:

(i) that the strike by the accused was aimed at the head of the deceased.
(ii) The accused used a deadly weapon, namely a 2″ x 4″ plank to strike the deceased.
(iii) As a consequence of the offending, a human life has been taken, seven children and a widow have been deprived of their father, husband, provider and companion.

Mitigating Factors

7. Prosecution submitted that the only mitigating factor is the accused’s early guilty plea, but given the gravity and seriousness of the offending the court should give it little weight.

8. Defence Counsel contended the accused should be treated as a first offender which in turn is a mitigating factor in sentence. The accused has also displayed remorsefulness, has been banished from Lotofagā as a punishment handed down by the village council and a ifoga by the representatives of his family has been accepted by the family of the deceased.

9. Counsel also contended that the degree of criminal culpability of the accused is on the lower end of the scale.

Discussion

10. Manslaughter per se is a very serious offence because a human life has been taken, but the circumstance of its commission are so varied so that the sentences can vary from very severe to very light; from lengthy custodial sentences to non-custodial sentences.

11. Cases have shown that each manslaughter sentencing decision is determined upon its own facts so that it is inappropriate to talk of a tariff sentence for manslaughter.

12. Counsel for the accused submitted that the degree of culpability of the accused is on the lower end of the scale but I beg to differ with her. At the same I am also of the view that the degree of culpability (or of moral blame worthiness) is not at the higher end of the scale either. The weapon used to inflict the injury was a very dangerous one and the strike struck the head of the deceased. The accused intended to cause severe injury.

13. I accept there was an element of provocation when the accused saw his adopted brother on the receiving end of a fight with the deceased. The prosecution summary of facts said the deceased had his hands wrapped around the brother; the accused’s counsel in her submissions told the court the deceased was strangling the brother. One strike was delivered. Culpability of the accused is reduced by his loss of self-control.

14. The village council of Lotofagā deliberated on the incident and were unanimous that the accused be banished indefinitely from the village. Under the Village Fono Act the court is required as defence counsel submitted to take into account the sentence imposed by the Village Council. The accused has been living elsewhere since the incident.

15. Other matters which the Court must take into account are the early guilty plea as well as the ifoga by the family of the accused. Although the accused has a previous conviction dating back to 1995, the conviction was an insignificant one and I will treat the accused as a first offender. Other favourable matters such as remorsefulness including testimonials in the probation report are also noted.

16. There are crimes when a term of imprisonment must be imposed even in the case of a person of previous good character such as the offender; even in the case where the offender is remorseful (as the offender), even in the case where a traditional apology (ifoga) has been made and accepted and even in the case of a first offender (I treat the offender as one). This is such a crime. The purpose of the sentence is to punish the accused as well as to deter the offender and other like-minded people. I have not ignored rehabilitation in this sentencing process.

Sentence

After consideration of the circumstances surrounding the offending I consider 5 years as the appropriate starting point. I deduct 6 months for the early guilty plea; a further 6 months for the previous good conduct. For the banishment order imposed by the village council I deduct 6 months. For other mitigating factors including the ifoga and remorsefulness I will deduct another 6 months. The accused is sentenced to 3 years imprisonment.

JUSTICE VAAI