Police v Mase [2010] WSSC 138 (12 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TUSITINO MASE, male of Nofoalii.
Defendant

Counsels: Ms F. Vaai for prosecution
Mr G. Latu for the defendant

Sentence: 12 July 2010

SENTENCE

This is also a case of manslaughter and again involves alcohol as a contributing factor to a fatal incident. This is something that is all too common a factor in violent offending in our community because people do things when they are drunk that they normally would not do. And for those people who cannot drink and act responsibly it is perhaps better they do not touch alcohol at all. I am bound to say that having sat on the bench for a number of years I have witnessed many offences coming before the courts, offences involving fatalities as well as non-fatalities involving the consumption of alcohol. The range of cases is very wide. From one end of the spectrum in traffic accidents all the way to murder at the other end. And in the majority of cases it is not really beer that is involved but spirits and the common commodity that is present in these sort of offences are the large plastic bottles of spirits like vodka which are being sold very cheaply in our community. Any government that licences and/or allows the importation and sale of such cheap alcohol should seriously research what it is doing to this community. The judges see all the time the effects of out of control drinking of such cheap liquor and I have no doubt it also causes kidney and other health problems

In this particular case the defendant is a 39 year old single male of Nofoalii. He is a tausi-aiga and the character references attached to his reports are from people who know him and who speak highly of him. The deceased is a 33 year old male of the same village of Nofoalii and for the purposes of a Coroners finding I find that the deceased died on the 15th September 2009 at Nofoalii from head injuries caused by an unlawful assault in which alcohol was noted to be a factor.

The summary of facts relates that on the day 15 September 2009 at Nofoalii the defendant went with some men from his village to assist in the cutting of grass for one of their fellow villagers. At about 2 o'clock in the afternoon the defendant and his companions finished their work and started their drinking session. The deceased was not part of this group but he walked past them and was invited to join but he told them that he will come over when he returns from his plantation and continued on his journey. When the deceased returned from the plantation the drinking party was still in progress and he joined the group. It is not clear from the documents before the court what then occurred but at some stage the deceased and the defendant got into an argument resulting in the deceased beating up the defendant by punching him on the shoulders and in the face. The deceased is said to be of a bigger build than the defendant and was a boxer. Members of the group intervened and stopped the fight and the deceased walked away from the group.

While the summary of facts does not say so it appears from what I have read in the Probation Office report that the deceased returned to the group and again began assaulting the defendant with punches. This assault too was broken up and the deceased was taken away.
However the deceased remained angry and he returned yet again to where the group and the defendant were sitting. The summary of facts relates that the defendant at that time grabbed his machete and struck the deceased in the face. The strike caused a deep laceration to the deceaseds face and this proved to be fatal. There was some delay in taking the deceased to hospital because the place of the incident was far inland and when he was eventually transported to hospital he was declared dead on arrival. The post mortem report indicated that death was due to haemorrhaging and shock as a result of the injury sustained from the defendants strike.

The summary of facts says that on the same night the defendant was apprehended after he had turned himself in and was taken into police custody. He subsequently pleaded guilty to manslaughter and that is what he now appears for sentence upon.

In the sentencing just completed the court has referred to the approach to sentencing for cases of manslaughter. And because the circumstances of each case are different and vary from case to case so the sentences are different. Each sentence must reflect the circumstances of the particular case. But 8 years is generally taken as the starting point and I see no reason why that should not be applied to the present situation.

As counsel for the defendant has pointed out the defendant is entitled to deductions from that to reflect the mitigating factors. The first is his guilty plea and for that he is entitled to full credit as it is clear not only has he pleaded guilty but the customary traditions have been effected. And furthermore the matter was considered by the defendants village council and they inflicted a village penalty although they stopped short of the ultimate penalty of banishment probably as a reflection of how they viewed this matter. I therefore deduct one-third from the starting point leaving a balance of 64 months. The second matter is the substantial provocation involved in this case in the deceaseds continued assaults on the defendant. I have no difficulty accepting that and for that, a deduction of 12 months will be made leaving a balance of 52 months. The court also accepts that the defendant is entitled to a deduction because he is a first offender and because of his good character references. For that I deduct a further 12 months leaving a balance of 40 months.

Defence counsel also argues the court should make account for the fact that the one strike delivered by the defendant was a defensive strike. It was as demonstrated by counsel a back handed lashing out by the defendant to the deceased who was approaching the defendant from behind in a menacing fashion obviously intent on continuing the beating of the defendant.

The problem with that is it is inconsistent with what the defendant told the police about what happened when they interviewed him shortly after this incident. And this is what he said:

"t. sa ou vaai atu ua toe savali mai ia te au. Sa ou tago atu loa ma uu mai le sapelu ma ou faatalia le taimi e oo mai ai.

6. ona a lea?
   
20. o le taimi lava na lata mai ai ia te au ou sogiina loa i le sapelu ina ia aua nei oo mai ai ia te au.
    
6. o fea lou lima lea sa uuina ai le sapelu ile taimi lea?
   
20. o lou lima agavale
    
6. e te agavale?
   
20. ia.
    
6. o gafea o Laauli na tau ai le sapelu i le taimi na e sogiina ai?
   
20. o foliga
    
6. gafea o foliga?
   
20. a le'o le auvae o lalo ifo
    
6. faafia ona e sogiina ia Laauli i le sapelu?
   
20. tasi.
    
6. sa e ita i le taimi lea na e faatinoina ai le sogiina o Laauli?
   
20. sa ou ita ma ou lagona le ma i au uo lea sa matou inu i le mea lea a Laauli sa fai ia te au o le fasi ma ta tui au.
    
6. sa iai sou manatu e sogi ia oti ia Laauli, ina ua e vaai ua savali ma ia te oe?
   
20. pau lou manatu ia aua nei toe pai mai ia te au.
    
6. sa e 'ona i lena taimi sa e faatinoina ai le sogiina o Laauli i le sapelu (naifi)?
   
20. ou te lei ona tele.
    
6. sa e malamalama lelei i lau gaoiga o le a fai?
   
20. ioe."
    

This account shows that the defendant was facing the on-coming deceased and that he deliberately armed himself and waited for the deceased to reach him. Perhaps he thought the deceased on seeing him being armed would retreat but whatever the case may be the deceased did not retreat and he kept coming. So he struck the deceased using his left hand which is his favoured hand. The strike was not to the leg or to the arm or somewhere else but to the head area and landed on the deceaseds face. And the reason for what he did is plainly outlined in his statement to the police where he says "sa ou ita ma ou lagona le ma i a'u uo ia sa matou inu i le mea lea a Laauli sa fai ia te au o le fasi ma tatu'i a'u." This was no defensive strike or lashing out, this was a deliberate strike calculated to cause serious injury and it did. No allowance can be made as submitted by counsel.

Having perused all the relevant documents there is no other matter for which you are entitled to any further deductions from sentence. And I believe 40 months is appropriate given the circumstances of your offending and to reflect the seriousness of the offence and the fact that a persons life has been lost. Accordingly you are convicted and sentenced to 3 years and 4 months in prison. The time spent in custody awaiting sentence is to be deducted.

JUSTICE NELSON