Police v Fiva [2008] WSSC 89 (28 October 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

LAFAELE FIVA
male of Vaimoso-uta and Tiavea.
Accused

Counsel: L Sua-Mailo for prosecution
S Leung Wai for accused

Sentence: 28 October 2008

SENTENCE

The charge

[1] The accused was initially charged with murder and he pleaded not guilty. The charge was subsequently reduced by the prosecution to manslaughter but the accused maintained his not guilty plea. After a two day trial, the Assessors unanimously found the accused guilty of manslaughter. The accused is now appearing for sentence.

The offending

[2] On Friday night 14 April 2008, the accused, who is a fisherman by occupation, left his home at Vaimoso-uta to go fishing near the Fish Market at Savalalo. He wore his black cap. He also took a small knife and a bag. He caught a lot of fish which he put inside his bag.

[3] At about 5am on Saturday morning, the accused decided to return home. It was still dark. He took the road from Savalalo heading towards Fugalei and then to Vaimoso. He was wearing his black cap and carrying on his back the bag in which he had put his fish and the small knife he had used for fishing.

[4] When the accused reached Fugalei, he met two men who were also walking along the road heading in the opposite direction towards Savalalo. These two men stopped the accused and questioned him whether he had any marijuana inside his bag. The accused replied he had no marijuana; he had been fishing. However, these two men told him not to lie.

[5] At the same time, the man with long hair, who is the deceased in this matter, walked over and opened the accused’s bag. Again the accused told him that he had been fishing. The deceased then told the accused to give him and the other man who was with him some fish to eat. The accused gave them two fish.

[6] After that, the deceased and the other man with him questioned the accused as to where he comes from. When the accused replied he comes from Vaimoso-uta, the two men told him not to lie. The questioning continued for a short while before the accused said that he was leaving.

[7] At that time, the deceased pulled off the black cap the accused was wearing and the two of them started pulling at the cap for its possession. Apparently, the accused’s bag which contained his fish and small knife was on the road at that time.

[8] The deceased then started punching the accused who then pulled out the knife from his bag and started waving it at the deceased. The accused testified that he waved his knife at the deceased in order to deter him. At the same time the accused was moving backwards. The deceased’s companion testified that he was then calling out to the deceased to let the man go.

[9] The deceased, however, persisted in punching the accused. The accused then stabbed the deceased with the knife, picked up his bag, and ran away.

[10] At the post mortem that was conducted on the body of the deceased, the pathologist found a stab wound behind the deceased’s left shoulder which penetrated into his left lung. This resulted in excessive internal bleeding which led to the death of the deceased.

The accused

[11] The accused is 38 years of age. He is from the village of Tiavea but married to a woman of Vaimoso. They have four young children attending school. At the time of this incident the accused was living with his wife and children at his wife’s family at Vaimoso-uta.

[12] The accused was employed in Apia as a fisherman on a fishing vessel. His wife and children depended on him for their livelihood as he is the sole breadwinner of the family.

[13] The accused’s employer speaks highly of him as an honest and reliable man. The pastor and pulenu’u of the accused’s village of Tiavea also confirm that the accused is a person of good character. The accused is also a first offender.

[14] Since this incident, the accused has been banished from the village of Vaimoso so that he, his wife and their children are now living at the accused’s village of Tiavea. As a consequence, the accused is now unemployed as his previous employment as a fisherman was on a fishing vessel in Apia. This has also impacted on the life of the accused’s young family.

[15] The accused’s family has also performed a ifoga to the village council of Vaimoso. This consisted of a presentation of fine mats and monetary gifts. The accused has also been heavily penalised by his village of Tiavea.

The deceased

[16] Little is known about the deceased except that he was 32 years of age and of similar build to the accused.

[17] The evidence given at the trial shows that the deceased had been drinking heavily on the night of this incident. In the early hours of Saturday morning 5 April 2008, he and his companion were sent to buy cigarettes at the Fugalei Market for the people who were at the house of the deceased’s family. That was when the deceased and his companion met the accused who was returning home from fishing.

Aggravating circumstances

[18] The only aggravating circumstance in this case was the use by the accused of a knife to retaliate and stab the deceased. At the trial, the accused said he was acting in self defence to protect himself from the persistent punching by the deceased. The Assessors must have considered that the use of the knife was disproportionate to the attack with bare fists from the deceased because they found the accused guilty.

Mitigating circumstances

[19] The accused did not foresee or expect this incident was going to happen to him. He had gone fishing on Friday night for his family. He then returned home at 5am on Saturday morning whilst it was still dark. He was walking peacefully along the road. He was then confronted by two men on the road at Fugalei. These two men stopped him.

[20] The behaviour of the deceased and his companion, particularly that of the deceased, was highly provocative towards the accused. After the deceased and his companion questioned the accused whether he had any marijuana inside his bag and the accused replied no as he had been fishing, the deceased told the accused not to lie. The deceased then walked over and opened the accused’s bag and again the accused told him he had been fishing. The deceased then asked for some fish and the accused gave the deceased and his companion two fish. However, that did not stop the deceased and his companion. They then questioned the accused as to where he comes from. When the accused replied he was from Vaimoso-uta, he was again told not to lie. Shortly afterwards, the accused said he was leaving, but the deceased pulled off the cap the accused was wearing and the two men started pulling at the cap for its possession. The deceased then started punching at the accused and the accused then pulled out the small knife that was inside his bag. He waved the knife at the deceased to deter him. At the same time the accused was moving backwards. However, the deceased persisted in punching the accused. It was then that the accused stabbed the deceased and ran away.

[22] As I have already said, the deceased’s behaviour was highly provocative. It was him who started this incident. Nothing had been done by the accused who was walking peacefully along the road on his way home after a night’s fishing.

[23] Other mitigating circumstances are the fact that the accused is a first offender and had been a person of good character until the commission of this offence.

[24] The accused has also been banished from Vaimoso. As a consequence, he has lost his job as a fisherman as he has had to re-locate with his family to his village of Tiavea. His young family has also suffered as a result.

[25] The accused’s family has also performed a ifoga to Vaimoso, the village of the deceased and it was accepted. The accused has also been penalised by his own village of Tiavea.

[26] As it appears from the pre-sentence report, the accused appeared remorseful when he was interviewed by the probation service.

[27] It also appears from the pre-sentence report that the accused told the probation service that he was acting in self defence. That might have been so. But the law does not give people a blank cheque to use any force they like, even if they are acting in self defence. There must be a reasonable balance between the threat as the accused believed it to be and the force he used to meet that threat. In this case, the deceased was punching the accused with bare fists and the accused responded with the use of a knife.

The decision

[28] Counsel for the prosecution in her helpful written submissions refers to some of the previous decisions of this Court and one decision of the Court of Appeal in which sentences were imposed on manslaughter charges. These cases were Police v Matalavea [2006] WSCA 72; Police v Aleki Ofoia [2008] WSSC 10; Police v Luki Galu Ausage [2007] WSSC 28; Police v Ilalio Tautunu [2006] WSSC 31; Police v Meapala Tanielu Sione [2006] WSSC 16.

[29] Those cases show that the sentences imposed in manslaughter cases have ranged from non-custodial sentences to lengthy terms of imprisonment which reflects the wide range of varying circumstances in which the offence of manslaughter has been committed. As a consequence, it has not been possible to set a tariff sentence or starting point which is applicable across the board to all cases of manslaughter.

[30} The modern approach to sentencing which this Court has adopted and applied in such cases as Police v Faulkner [2007] WSSC 80; Police v W [2007] WSSC 92; Police v Enelagi [2007] WSSC 95 is that explained by the New Zealand Court of Appeal in R v Davis [2005] NZCA 246. In that case, Robertson J in delivering the judgement of the Court of Appeal (comprising of himself, Baragwanath and Heath JJ) said:

" In setting the starting point the fundamental focus is on the actual offence and the involvement of the particular person in that offending. We use the term ‘starting point’ in the way it was defined by this Court in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 at [8]:

‘" The modern approach to sentencing uses as a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding mitigating and aggravating features related to the offender. Put another way, a starting point is the sentence considered appropriate for the particular offending (the combination of features) for an adult offender after a defended trial’ R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 at para [24]"’

[31] Applying the modern approach to sentencing to this case, the starting point for sentence, is to be determined by having regard to the aggravating and mitigating features of the offending. That means in setting the starting point the focus should be on the actual offence and the offender’s involvement in its commission. In this case, that requires having regard to the aggravating and mitigating features of the incident which occurred at Fugalei because that is where the offending occurred and the offence was committed. The provocation from the deceased and the retaliation from the accused are to be considered as part of the offending that took place. On that basis, and bearing in mind that the loss of a human life is always a serious matter. I have decided to take 4½ years as the starting point for sentence.

[32] The next step is to have regard to the aggravating and mitigating features related to the offender. In this connexion, I take into account the fact that the accused is a first offender and that he was a person of good character prior to the commission of this offence, the fact that he has a young family to look after, the fact that the accused has been banished from Vaimoso and as a consequence has lost his job as a fisherman from which he had earned his family’s livelihood, the ifoga by the accused’s family to the village of Vaimoso, the fact that the accused has also been heavily penalised by his village of Tiavea, and his expression of remorse to the probation service.

[33] As for any aggravating features related to the offender, there is none. He does not, for example, have any previous convictions as some manslaughter offenders do.

[34] For the ifoga performed by the accused’s family, I have decided to deduct 6 months from the starting point of 4½ years. That leaves 4 years. For the other mitigating features related to the accused including the heavy penalty imposed by his village of Tiavea, I will deduct another 8 months and that leaves 3 years and 4 months.

[35] In the circumstances of this case, I have decided to show a degree of mercy on the accused. I will deduct another 4 months. That leaves 3 years.

[36] The accused is sentenced to 3 years imprisonment. Any time the accused has already spent in custody is to be further deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia, for prosecution
Leung Wai Law Firm for accused