Police v Piuila [2010] WSSC 21 (15 March 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

KAPETENI PIUILA,
male of Faleu Manono-uta and Faletagaloa Safune
Defendant

Counsels: Mr M. Lemisio for the prosecution
Mr TK. Enari for the defendant

Sentence: 15 March 2010

SENTENCE

The defendant in this matter appears for sentence on a charge of manslaughter. But as this is also a Coroners inquiry into the cause of death of the deceased, I first issue the Coroners finding as follows:

The coronial finding is that Elisapeta Kapeteni the deceased in this matter, a female aged 52 years of Toomatagi and Manono, died at Manono on the 2nd day of May 2008 as a result of injuries sustained in an assault on her by her husband the defendant.

The police summary of facts which the defendant has through his defence counsel accepted relates as follows:

The defendant and the deceased lived in the village of the deceased at Faleu Manono with their two grandchildren aged 2 years and aged 6 months. On Friday 2 May 2008 around 5am in the morning the defendant was awaken by the cries of the grandchildren who were sleeping with the deceased in her tainamu or mosquito net. The children required cleaning and the defendant took and bathed them and woke up the deceased from her sleep. The deceased woke up and prepared the childrens bed and then tried to put them back to sleep. The children however would not go to sleep and the deceased then laid back down on the bed and went to sleep. This infuriated the defendant and he got up and put the children to sleep himself. He was obviously angry at the deceaseds behaviour and he approached her while she was asleep and kicked her in the jaw three to four times. He stated in his cautioned statement to the police that he was also angry at the deceased for other matters that had occurred earlier that evening. After he delivered the kicks, the defendant went about his morning chores and noticed that the deceased was snoring. He obviously had not realized that the deceased had suffered fatal injuries from his kicks. After some time he noticed the deceased had stopped snoring and when he checked on her he realized that she had also stopped breathing. His efforts to revive her were fruitless as the deceased had passed away. The matter was eventually drawn to the attention of the neighbours and from thence to the police.

The post mortem report on the deceased found as follows:

There were several clots of blood in the brain and the face was swollen and covered in bruises;

Part of the deceaseds tongue was lacerated and one of her premolar teeth was dislocated from its socket;

In her neck region, contusions were noted on the left and right side and blood vessels over the right side of the neck were also injured;
The cause of death was noted as being due to failure of the vital centres of the brain following intracranial haemorrhage as a result of the blows administered to the head, face and neck.

It is clear from the injuries found on the deceased that the defendants assault was severe and was primarily directed at a most vulnerable area of the body namely the head, face and neck. And that the assault consisted of kicks delivered to the deceased while she was lying down asleep. The defendants offending is further aggravated by the fact that the deceased in this case is his wife. This is as counsel for the defendant rightly conceded a domestic violence killing and while the defendant may not have intended to kill his wife, his attack was a savage one delivered to a sleeping woman. Furthermore, while the defendant may have been angry at his wife for her behaviour, this is no justification for what he did.

As noted in many previous cases there is no tariff for manslaughter sentencing because the circumstances of each case vary so much but the cases show that the one constant is usually a term of imprisonment is imposed. There are not many cases in this jurisdiction of domestic violence resulting in death. These sorts of cases are sadly more common in overseas jurisdictions. But we do have the occasional case coming up such as this one.

Some authorities from New Zealand have been cited to the court by the prosecution and while they are guidelines only they show that in those jurisdictions, a 9 to 10 year term of imprisonment is not unusual. The case in this country closest to the present situation is that of Police v Ausage [2007] WSSC 28. That was a domestic violence killing where a husband used a rock to kill his pregnant wife who had been engaged in an extra marital affair. In the course of his decision in that case the learned Chief Justice dealt with various overseas authorities and on the basis that provocation from the deceased was present, he chose a starting point of 8 years imprisonment. In Police v Langkilde [2009] WSSC 93, where a defendant killed his wifes lover when he entered the couples property drunk late at night and uninvited, I used a different process but also arrived at an 8 year starting point for sentence for manslaughter. And the eight year notional start point is the point that the Court of Appeal of this country in Attorney General v Matalavea [2007] WSSC 8 noted as a notional start point for the more serious of cases.

The circumstances of the present case are such that it can undoubtedly be described as a serious case. In my view the case is made more serious by the fact that it was an unprovoked and violent killing. There is also another factor, in this day and age spousal assaults are simply not acceptable. I have previously expressed the view in Langkilde that the starting point for manslaughter involving weapons should perhaps in view of the increasing prevalence of such assaults in this country be revisited. I express a similar view in relation to spousal manslaughter where death results from a spousal assault because of the increasing number of cases of spousal assault that are coming before the courts. There seems to be a notion that in twenty first century (21st C) Samoa, assaulting your wife should be tolerated if she fails in her "wifely duties". To those misguided enough to hold such an antique view and belief the court sends this strong message - no this sort of conduct is no longer acceptable and will not be tolerated. Because of these reasons and these concerns I am therefore upgrading the start point in this particular case from the notional 8 years to 10 years imprisonment.

The maximum penalty for manslaughter is life imprisonment. Defendant for the reasons I have explained the starting point for sentencing in your case is 10 years in prison. From that however should be made certain deductions that you are entitled to by law. For the defendants guilty plea a 30% deduction shall apply namely a period of three years. That is a normal deduction because your guilty plea means you have saved the expense and time of a full trial. For the defendants first offender status and previous character and good work in the community plus the ifoga and customary settlement that has been made to the family of his late wife, a deduction should also be made and for that I deduct a period of 12 months. Normally a deduction would also be made for the banishment of the defendant because that is a penalty in itself. However it appears in this case that the couple were at the time living in the wifes village and not the defendants village, the wifes village has rightly banished him from their village because of this offence. No deduction therefore should be allowed for the banishment. That leaves a period of 6 years in prison, you are convicted and sentenced to 6 years imprisonment for this matter. The time that the defendant has spent in custody awaiting sentence is to be deducted.

JUSTICE NELSON