Police v Koro [2009] WSSC 100 (28 September 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

PENAIA SEMO KORO,
male of Samata-i-tai and Lotopa.
Defendant

Counsels: Mrs Su’a-Mailo and Mr M. Lemisio for the prosecution
Mr A. Roma for the defendant

Sentence: 28 September 2009

SENTENCE

The defendant faifeau (pastor) appears for sentence on a charge that on the 26 December 2008 by an unlawful act namely assault he caused the death of Mathew Fa’asavalu also known as Mathew Uale also known as Mathew Pio a male of Samata-i-uta and did thereby commit the crime of manslaughter. There has been some dispute raised as to parts of paragraph 5 and paragraph 6 of the prosecutions summary of facts submitted for this case. This dispute was made known by counsel for the defendant to the prosecution before today and they have instructed that they are not in a position to call evidence on the matter and have sought an adjournment to allow them to produce such evidence. Had the matters in dispute been significant enough to alter the ultimate penalty to be imposed on the defendant, I would have granted that application. But in my view they are not significant and they would not have that effect, accordingly I do not propose to adjourn sentencing for that purpose.

The facts of this matter are essentially that at about 8pm on the evening of Friday 26 December 2008, the deceased and some boys of his village were on their way to a dance at the village of Fagafau, Savaii. The deceased was drunk and became separated from his group. He passed through the neighboring village of Samata-i-tai where a fundraising dance of the defendants congregation was in progress in their church hall inside the church compound. The defendant was outside of the hall keeping an eye on things and was in possession of a torch. He saw the drunken deceased who had removed his shirt and tied it around his head heading towards the hall. He instructed one of the young boys of the congregation to tell the deceased to put on his shirt and to carry on to their fa’afiafiaga at Fagafau and not to try and enter the hall dance. The deceased swore at and threatened the young boy sent by the defendant and kept going towards the church hall and dance. The defendant intercepted the deceased and told him to put on his shirt and to leave the church compound. The deceaseds response was to swear and become abusive towards the defendant. This angered the defendant who slapped the deceaseds face with his left hand and then hit him with the torch carried in his right hand causing the deceased to fall backwards and hit his head on the concrete ground. The deceased became unconscious and the defendant instructed some boys to take him home and to inform his father that he will be calling upon him the next day whereupon the defendant then left and returned to where he was previously sitting outside the hall. People of the village tried to revive the deceased to no avail and the deceased was taken to the local hospital.

For the purposes of a coroners ruling in this matter I find that the cause of death of the said Mathew Faasavalu was from head injuries sustained in this assault on the evening of 26 December 2008 at Samata. More specifically in accordance with the post mortem report death was due to failure of the vital centres of the brain due to compression of the brainstem as a result of intracranial haemorrhage or internal bleeding in the brain.

The defendant was originally charged with murder but when that was withdrawn by the police he pleaded guilty to a substitute charge of manslaughter, hence his appearance today for sentence on that charge. The courts approach to sentencing in manslaughter cases as noted by defendants counsel is to invariably impose sentences of imprisonment because of the seriousness of such offending. But the sentences vary with the circumstances of each particular case such that in some instances non-custodial sentences have been imposed. Those non-custodial cases have been canvassed by the prosecution and defence in their submissions and I have reviewed those cases. Unlike those cases I do not consider that here there exist any special circumstances which would justify a non-custodial penalty.

In seeking what is an appropriate penalty the court in manslaughter cases takes the approach as identified by Police v Langkilde (unreported) 3 August 2009 viz. to identify first a starting point for sentence taking into account the aggravating and mitigating factors of the offending. Such factors include the degree of violence involved and whether it was prolonged, any premeditation that may have existed, the nature of the injuries suffered by the victim and whether a weapon was used and if so to which part of the body the assault was directed, the general state and vulnerability of the victim and the actions of the defendant post assault.

In this particular case the degree of violence involved on a scale of low moderate and high, I would place at moderate because of the use of a weapon, otherwise I would have classified the assault as low level. As for premeditation I accept there was no premeditation involved. This was a spur of the moment offending. As to the injuries suffered by the victim these seem to consist primarily of a bruise to the left cheek plus a laceration to the back of his head with an underlying skull fracture. This is consistent with frontal blow from a torch causing the victim to fall backwards onto the concrete fracturing his skull. There is no evidence that the blow from the torch was delivered from the back. But there is evidence that the deceased fell and hit the back of his head on the concrete ground. It is therefore reasonable to conclude that it was the fall back onto the concrete that caused the fracture of the skull. I would also note there is no evidence the left hand slap delivered by the accused to the cheek of the victim caused any injury because if it was a left hand slap it would cause an injury to the right cheek of the victim.

As to a weapon there is no question the torch was used to effect the assault and equally that the assault was directed at a vulnerable area of the body namely the head of the victim. There is also no question the victim was in an obviously drunk state armed only with alcohol and a bad temper. Post assault, the facts seem to indicate the defendant instructed the victim to be taken home and I accept the submission by his counsel that not for one instance did he consider the victim had been fatally injured by his actions.

In assessing these factors and given the usual notional start point as noted in the cases summarized in Landkilde of around 8 years, I consider that a start point appropriate to this case to be 5 years. From that should be deducted the factors in the defendants favour. Firstly a one-third deduction for the defendants guilty plea which reflects as counsel has stated his true remorse and which has saved the courts time and resources. This reduces the penalty to 40 months. Secondly a reduction should be made for the provocation which was offered and present in the conduct and behaviour of the deceased. Swearing at a faifeau or pastor is in our custom and tradition offensive and highly rude behaviour. For that provocation I deduct 6 months reducing the period to 34 months. Some deduction should also be made for the reconciliation and the ifoga that was carried out and for the contribution to the lauava and other funeral expenses. But in doing so care must always be taken not to make it appear that a large ifoga or a large contribution to a lauava can buy leniency because justice is not for sale at any price. This point was addressed at length by the Court of Appeal in Attorney General v Matalavea [2007] WSCA 8. As sentencing judge however I do commend the parties for ensuring that the customary and traditional practices have been observed faithfully and well in this case. For the reconciliation and those matters I deduct a further 6 months. A deduction should also be made to recognize the fact that this defendant has not previously offended. He is a first offender and I recognize the fact that a custodial penalty will mean he will probably be unable to continue with his chosen career path of being a pastor. I do also accept Penaia that this is something that you will have to live with for the rest of your life. That is a punishment beyond anything this court can ever impose. For those sort of factors and all the other residual factors in the defendants favour I deduct a further period of 6 months leaving a balance of 24 months.

For the reasons that I have attempted to outline to you the courts sentence is you are convicted and sentenced to serve a period of 2 years imprisonment for this matter.

JUSTICE NELSON