Police v Saleali'i [2010] WSSC 139 (12 July 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

FUIAVAILIILI FAASAVALU SALEALI'I, male of Aleisa and Falevai Falelatai.
Defendant

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

Sentence: 12 July 2010

SENTENCE

The defendant here is 45 years of age, married with four children and is a planter of Aleisa and Falelatai. The deceased is 54 years of age and is the defendants brother. The defendant was living with the deceased at his family at Aleisa when the incident occurred.

The facts revealed that at about 5pm on Saturday 31 October 2009 the defendant and his brother began drinking at Aleisa. It is said that they were drinking a bottle of spirit. At about midnight the drinking session was still in progress and probably due to alcohol taking effect the deceased who is the older brother began scolding and telling off the defendant about certain matters that had occurred previously. The two of them got into an argument eventuating in the deceased chasing the defendant out of the house and throwing his clothes out of the house.

The summary of facts says that the defendant left but returned at some subsequent time still angry at the deceased. He found his brother sleeping and he used rocks to assault him. The post mortem report shows the following injuries were sustained in this assault:

1. one lacerated wound to the left side of the forehead measuring 1¾" x ¾" deep;
   
2. one lacerated wound over the left ear measuring 1¾" in length and 1" in depth;
   
3. one lacerated to the left upper region of the head measuring 1½" in length and ¼" in depth;
   
4. one lacerated wound over the middle of the scalp measuring 1½" in length and 1 inch in depth.
   
5. There were also abrasions to the left and middle part of the deceaseds forehead.
   

Underneath these injuries was a fracture of two parts of the skull, one fracture measuring 2½" in length and 5½" in width and a second fracture measuring 3½". These injuries show that considerable force was involved and are consistent with the use of rocks in the assault.

The summary of facts further states that the defendant left his brother after the assault and the next day reported the incident to police headquarters at 8am. The defendant and the police traveled to Aleisa and at the house the defendant showed the police officers where his brother was lying. They found the deceased dead with rocks lying around his body, lying in a pool of blood beneath his head. As a result of this matter the defendant was charged with and has pleaded guilty to the offence of manslaughter which carries a maximum penalty of life imprisonment.

In reviewing penalties for the offence of manslaughter, the Court of Appeal of this country recently stated in Nepa v The Attorney General [2010] WSCA 1 that cases of manslaughter differ individually and infinitely both in degree and circumstances and that there is no offence in which the permissible degrees of punishment covers so wide a range and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty. The court noted that the diverse circumstances in causing death makes manslaughter a crime which varies widely in culpability, sanction and penalty but that the cases show as a guide a commencing point of 8 years in prison and a median point of around 5 years.

Considering all the circumstances I propose to use this 8 years as a starting point for sentence of the defendant. Defence counsel has referred me to Police v Ofoia [2008] WSSC 10 a case also where one brother killed another brother where the court used a 3 year starting point and counsel invited the court to follow that approach. I am of the view however that case represents a different set of facts to what is before me. The assault there was not as severe as the present one where several rocks were used causing multiple head injuries. It is also clear that in the present case, this was an assault on a sleeping and defenceless man who posed no threat to the defendant. The defendants acts no doubt fueled by alcohol were driven more by anger and retribution for the deceaseds earlier remarks to him and their earlier argument. And unlike there, there was no statement by the defendant to the police when he was questioned about the incident saying "ole mea ua mao." The only resemblance between the two cases is provocation which as I indicate below the court here accepts was a big factor.

From the start point of 8 years however there should be a deduction for factors in the defendants favour as pointed to by his counsel. Firstly he is entitled to some credit for his early guilty plea because it has saved the courts time and resources. But the other major reason why credit is given for a guilty plea is because it reflects a defendants true remorse for his actions by acknowledging his guilt and accepting responsibility for what he did. In this case the defendant has made peace with his family but the victim impact report filed by the Office of the Attorney General makes it clear that no ifoga has been extended to the wifes family as one would normally expect. The defendant therefore is not entitled to full credit for the guilty plea and on the issue of remorse I have not overlooked what is in the police summary of facts that after the assault occurred this defendant left his brother lying in a pool of his own blood, left the scene and only reported the matter to the authorities at 8 o'clock the next day. In the circumstances I will allow only a 12 month deduction for the guilty plea as opposed to the usual one-third deduction. That leaves a balance of 7 years.

I accept however counsels submission that there was substantial provocation in the deceaseds actions of abusing and chasing out his brother and there is also a suggestion that the deceased made disparaging comments about the defendants wife which further provoked the defendant to anger. For those factors I make a 12 month deduction leaving a balance of 6 years.

The defendant is also entitled to credit for the fact that he is a first offender and it is clear he was previously a person of good character. For that I make a further deduction of 12 months, that leaves a balance of 5 years.

Intoxication was referred to in counsels submissions but as rightly conceded by him that is not a justification or reason for anything. He also referred to the fact that the defendant has been punished because he has caused the death of his brother and that is true. That is a punishment in itself that the defendant will have to live with. But that is a loss brought on by the defendants own unlawful actions and does not entitle him to a further discount for sentence.

Faasavalu after considering all the factors in this case there are no other matters in respect of which any other deduction can be made from your sentence. The end result in this case is also the median sentence for this sort of case and in my view it correctly reflects the savagery of an attack using rocks on an unsuspecting sleeping person. Consequently for this matter you are convicted and sentenced to 5 years in prison. Your time spent in custody awaiting sentence is to be deducted from that 5 years.

JUSTICE NELSON