Police v Langkilde [2009] WSSC 93 (3 August 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TIUMALUMANAIA FILIPO LANGKILDE, male of Satapuala and Elise-fou
Accused

Counsels: Ms. L. Su’a-Mailo for the prosecution
Ms. M. Tuatagaloa for the accused

Sentence: 3 August 2009

SENTENCE

The defendant was originally charged that on the 9 June 2008 at Elise-fou he did stab to death the deceased and thereby commit the crime of murder. The defendant pleaded not guilty to that charge and the matter went to trial in June this year. For reasons that are not relevant a mistrial occurred and the defendant was remanded in custody for a new hearing date to be set. The next thing that occurred is the prosecution reduced the charge from murder to manslaughter and the defendant pleaded guilty to that charge. He appears today for sentence on that charge.

The amended summary of facts which counsel for the defendant has accepted and agreed to relates that the defendant resided with his wife and children at Elise-fou. But at the relevant time the defendant had been banished from the village due to what is described in the amended summary as a "discrepancy with his neighbours". The defendant in breach of that banishment order was at Elise-fou visiting his wife and children on the night this incident occurred. The summary relates that at about 11pm, the defendant and his wife were awoken by loud knocking on the front door of their two storey house. The couple were asleep in the upstairs bedroom of the house. They proceeded downstairs and the wife opened the front door and standing there was the deceased in an intoxicated state. The amended summary of facts says the deceased was an acquaintance of the wife but I am satisfied from the materials before me that he was more than that. A visit late at night to the wifes place of residence supports that view. This angered the defendant who said as quoted by counsel for the defendant from paragraph 8 of her statement to the police:

"Sole, ua e iloaina e sese le taimi lea e te sau ai, ae o ai na faatagaina oe e te sau i totonu ole matou fanua? O e iloa o lo’u toalua lena e te talanoa mai iai, o lona uiga e matuai ulavale lava lau mea lea ua fai."

An exchange of words then transpired between the defendant and the deceased resulting in the defendant attacking the deceased with a machete. It is not known where or at what point the defendant armed himself with the machete but obviously he did so between the upstairs bedroom and the downstairs front door. There is a suggestion in the amended summary that because the tools of the household are stored underneath the upstairs stairway he grabbed it on his way to the front door. The machete itself is a short wooden handle sapelu with a 50 centimeter long blade and a sharp point, an instrument commonly used in gardening and plantation work in this country.

The post mortem report lists the injuries that the defendant inflicted on the deceased:

1. a 1½"x¼"x1" deep stab wound to the left side of the jawline;

2. a ½"x¼"x3½" deep stab wound to the right side of the base of the neck in the collarbone area;

3. a ½"x ¼"x1" deep stab wound to the right side of this wound; and

4. a u-shaped chop or slash wound measuring 4"x3"x¾" deep to the exterior of the right forearm which had caused the skin and underlying tissue to be exposed.

There were other wounds but these were the major wounds and there is no doubt that they were caused by a ferocious attack. Death most likely occurred quickly from haemorrhaging and shock and the defendant left the scene immediately after inflicting the wounds. The deceased was taken to the national hospital by the defendants neighbours. At the hospital he was recorded as dead on admission at 11.40pm, 9 June 2008.

As I am required to also issue a Coroners finding for this matter for that purpose I conclude that the deceased in this matter Peti Gaee, male 48 years of age of Vaimoso died at Elise-fou on the 9 June 2008 from fatal injuries sustained in an assault by a machete.

The subject of criminal sentencing in manslaughter cases was recently reviewed by our Court of Appeal in Attorney General v Matalavea (unreported) 14 September 2007. There the court at paragraph 15 adopted the now conventional approach of identifying a starting point for the conduct of the defendant, viewed objectively and without reference to the defendants personal circumstances or other relevant aggravating and mitigating factors. This is the practice now prevailing in numerous overseas jurisdictions and was outlined by a full bench of the New Zealand Court of Appeal in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372. That decision laid down the current approach to sentencing for grevious bodily harm offending and prescribed guidelines for its exercise. It is clear from Matalavea that our Court of Appeal considers that approach should be followed by the courts of this country in the interests of consistency in sentencing through consistency of approach to sentencing. As noted by the Court of Appeal in the subsequent case of R v Finn [2007] NZCA 257 in response to the assertion by the sentencing judge that the Taueki sentencing band structures was arcane:

"this process makes it clear to the prisoner, the Crown and others how the final sentence is reached and whether a consistent approach to sentencing has been understood and applied."

The Matavalea/Taueki approach requires the court to set a start point having regard to the features of the offending which may add to or reduce the seriousness of the defendants conduct and the degree of its criminality. This also requires the court to evaluate the depth and extent of each feature – thus for example while pre-meditation is identified as a relevant factor the extent of the pre-meditation may vary from case to case. Full scale planning and orchestration of a co-ordinated attach should be treated more seriously than an on the spot decision by an offender to punish or take revenge on his victim. As the court said in Taueki:

"The evaluative task is an important aspect of sentencing; without it there would be a danger of a formulaic or mathematical approach to the assessment of sentencing start points".

Taueki identifies a number of factors which may or may not be present in a particular case but which contributes to the criminality of the defendants conduct. These are traditionally referred to as the aggravating factors of the offending and are referred to in the prosecutions submission. The ones relevant to the instant case would be:

1. the degree of violence involved and whether it was prolonged;

2. the extent of any pre-meditation or planning;

3. the nature of the injuries to the deceased;

4. whether any weapons were used;

5. where the attack was directed Obviously throwing a stone or striking at someones leg is quite different from throwing or striking at someones head;

6. the vulnerability of the victim; and finally

7. whether post assault the defendant offered any assistance to the victim.

Applying these factors to this case: firstly, the degree of violence, obviously the deceased’s wounds show this to be an extremely violent assault involving more than one strike from the defendants machete. As to pre-meditation it is clear the defendant grabbed and armed himself with a knife on his way to the front door and the inference to be drawn is that he armed himself in the eventuality that the weapon needed to be used. Whether he intended to use it to intimidate whomever was at the front door or in some other manner is unclear to the court but what is clear is he was prepared to use it in some way. As it turned out it was used to assault the deceased. As to the victims injuries, the injuries were serious and life-threatening. As to the weapon, this was a short sapelu as previously referred to and the sapelu was used to strike mainly at the most vulnerable and important part of the body, the head and upper torso of the deceased. As to the victims vulnerability, the amended summary of facts shows the deceased was drunk and unarmed and the attack was delivered at a point in time when the deceased was not behaving aggressively towards the defendant.

If the court were to apply the Taueki approach it would produce a start sentencing point mid-range of the top end of the Taueki band structure, somewhere around 12 years. That would then have to be upgraded to reflect the fact the offence in this case is more serious, it is manslaughter involving the loss of a human life the maximum penalty for which is life imprisonment. However I note the Court of Appeal in Matalavea did not advocate going as far as suggesting the Taueki sentencing bands should be applied to manslaughter cases. Because the court went on to discuss a number of recent authorities in Samoa for manslaughter and concluded that a notional start point for the most serious cases was around 8 years imprisonment. Missing from the list of cases reviewed by the Court of Appeal are Police v Faauila (unreported) 9 July 2007 and Police v Liliga (unreported) also of the same date where terms of imprisonment of 10 years and 6 years respectively were imposed. But those cases were gun shot cases which arguably involve special considerations (see page 4 of the Liliga judgment).

I also do not know that the New Zealand Court of Appeal has gone as far as applying the Taueki sentencing bands to manslaughter cases either. Probably because as has often been noted in many previous cases, the range of circumstances is as varied as the type of offender. Thus the courts have deliberately refrained from setting sentencing tariffs for manslaughter. But given the prevalence in this country of violent offending using weapons, it may be time for the appellate court to consider a Taueki type approach to manslaughter sentencing.

To maintain consistency however I propose to adopt for the defendants case a start point of 8 years which I note was the same start point used in Police v Sione [2006] WSSC 6 a case also involving attack by a machete causing 5 deep wounds including 2 to the head. Eight years is also in line with the authorities discussed by the Court of Appeal in Matalavea.

To that start point must be added anything personal to the defendant that aggravates the offending. In this case there exists such a factor namely the defendants history of violent offending. He has a previous conviction in 2004 for weapons offending in that case a firearm for which he served 3 years in prison an indication it was of a serious nature. The court records also reveal that in 2008 the defendant and another was following a defended trial in the District Court found guilty of actual bodily harm, throwing stones and wilful damage. But on sentencing date those charges were inexplicably withdrawn by the police and no reason is contained in the court file for the courts decision to allow withdrawal of the charge at that late stage rather than to follow a more appropriate course of action. However those charges were withdrawn and therefore cannot be taken into account and neither should the recent term of imprisonment the defendant served for possession of narcotics because that is a different kind of offence. I do however need to add a period to reflect the previous convictions in 2004 and for that I add 2 years which brings the total up to 10 years. From that deductions should be made for mitigating factors.

Counsel for the defendant did not specifically pursue provocation as a mitigating factor. Quite correctly because although there may have been an element of provocative behaviour in the deceased entering the defendants property late at night uninvited and then engaging the defendants wife in an apparently more than friendly conversation, the amended summary of facts states as follows:

"At that time the defendant who was standing behind his wife asked the deceased what he was doing there and who allowed him onto the property (as earlier quoted by the court). The deceased replied he was not looking for trouble and apologized. The defendant however questioned the deceased asking whether he was "fia ulavale" to which the deceased replied, "leai, malosi oe."

The summary continues that as this exchange of words was carried out, the defendants wife told the defendant to stop it. However the defendant reached out and delivered the first stab to the deceased. This caused the deceased to stagger backwards before he stumbled onto the ground. The defendants wife then pushed the defendant away and called out to the neighbours for help. At that time the defendant again continued to stab the deceased."

It is clear from that passage that the defendants retaliation was out of proportion to the provocation offered and further, that the provocation was over as the deceased had apologised and said to the defendant "malosi oe" (you are stronger). I find there is therefore as a matter of law no provocation present in the circumstances laid before the court and no deduction can therefore be made for provocation.

But the defendant is entitled to a reduction for his guilty plea because it was entered when the charge was reduced to manslaughter which was the first reasonable opportunity. The guilty plea has not only saved the time, expense and resources required for a full trial something which is of significance in an impoverished jurisdiction such as ours, but it also represents an expression of remorse for his offending. For the guilty plea I deduct 30 percent of the sentence of the defendant or a period of 3 years. As there has been no reconciliation or customary apology I can see no other factors necessitating a further reduction to the penalty to be imposed.

Accordingly the defendant will be convicted and sentenced to a period of 7 years imprisonment. The time he has spent in custody awaiting sentencing and trial is to be deducted from that sentence.

JUSTICE NELSON