Police v Tia [2010] WSSC 90 (31 August 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

TIUMALU TIA
male of Fogapoa.
Accused

Counsel: L Taimalelagi for prosecution
M G Latu for accused

Sentence: 31 August 2010

SENTENCE BY SAPOLU CJ

The charge

1. The accused was initially charged with murder to which he pleaded not guilty. On the morning of the trial, the prosecution reduced the charge to one of manslaughter and the accused entered a plea of guilty. The accused is now appearing for sentence on the charge of manslaughter.
   

The offending

2. As it appears from the summary of facts which was prepared by the prosecution and confirmed by the accused through his counsel, on Monday night 28 December 2008 at around 11:30pm, the deceased who was under the influence of alcohol and a male relative returned to the home of the deceased's family after a night out. They had a meal before the male relative left for his own home.
   
3. Shortly after the male relative left, the deceased left his house and walked towards the front road. Along the way, the deceased stopped at a breadfruit tree and began to break off its branches. He then walked to the opposite side of the road to a house belonging to Tiumalu Tagata being the accused's family, and pulled out plants from the family's property.
   
4. The deceased then made his way towards the house of the accused. As he was walking there, the deceased picked up a fallen breadfruit and threw it at the accused's house. The deceased then called out, "O fea la le alii lea o Tia, sau la" (Where is this guy Tia, come to me)" "O le po nei ou te fasiotia ai oe" (Tonight I will kill you). At that time the accused and his family were asleep.
   
5. The deceased then walked to the adjoining house which also belongs to the accused and peered inside. This caused a nephew of the accused to jump out of the house and hide alongside its foundation. The deceased then walked away and made his way back to the house of Tiumalu Tagata. By this time, the accused had woken up. He came out of his house, grabbed some rocks nearby and began looking for the deceased. An onlooker pleaded with the accused to leave the deceased alone as he was drunk. The accused replied, "Ua lē tasi lē lua mea a le alii ua fai" (This guy has not done this once or twice).
   
6. The accused then walked off in the direction of the deceased with his nephew following him. They met the deceased along the way as they got closer to the deceased's home. The accused then threw a rock at the deceased as the deceased reached the front of his house. This caused the deceased to run away. The accused's nephew also threw a rock at the deceased but missed. In retaliation, the deceased threw rocks back at the accused's nephew which made the accused's nephew to run away leaving the accused and the deceased behind.
   
7. As the accused's nephew made his way back home, he heard the accused's voice coming from the deceased's property saying, "O lau mea lava lea na fai fo'i i lo'u tama lea na lavea ai fo'i ai lo'u uso" (This is what you did to my father which resulted in my brother being injured). The accused's nephew ran to where the voice was coming from to find the accused standing over the deceased lying helplessly on the ground. At that point in time, the accused struck the deceased on the leg using a long object. The accused's nephew intervened and told the accused to stop as the deceased was badly hurt. The accused and his nephew then left, leaving the deceased lying in a helpless state. Shortly afterwards, the deceased was found by his sister in law moaning from the front of his house with his face smothered in blood and his right leg injured.
   
8. The deceased was later taken to the Tuasivi Hospital the same right where he was pronounced dead on arrival.
   
9. The report by the pathologist who conducted the post-mortem examination on the deceased shows that the deceased suffered the following injuries: (a) four severe lacerated wounds to the head, (b) torn membranes of the brain at the left eyebrow region, (d) a lacerated wound over the left cheek, (e) fractures of the upper jaw on both the right and left sides, (f) fractures of the lower jaw on the right side, (g) lacerations on both lips, (h) fractures of both nasal bones, (i) fractures to the sockets of the teeth so that eight teeth were dislocated at the lower jaw and six teeth were dislocated at the upper jaw, (j) the tongue was also injured, (k) the left clavicle or collarbone was fractured, (l) a sharp wound on the right lower arm, (m) simple fractures to the left radius and ulna, (n) two lacerated wounds on the right leg, and (o) a simple fracture of the right femur or thighbone.
   
10. In the opinion of the pathologist, these injures were consistent with injuries caused by heavy blunt objects. These injuries resulted in haemorrhage and shock which killed the deceased.
    
11. Perhaps it should be noted here that the accused had wanted to add to the summary of facts that when he confronted the deceased, the latter threw a machete at him which missed. This was opposed by the prosecution and a disputed facts hearing was held in which evidence was given by two witnesses for the prosecution and by the accused. I decided not to accept the accused's evidence that the deceased had a machete or threw the machete at him.
    

The accused

12. The pre-sentence report prepared by the probation service on the accused shows that the accused is a 35 year old male from the village of Fogapoa. His formal education ended at year 12. From 2002-2005 he was employed in a trading store at Salelologa. He then stayed home and worked on his family's plantation. He is also a fisherman. His wife and their three young children as well as his 80 year old mother depend on him for financial support. He is the sole provider for his family.
    
13. The accused's mother, wife and sister as well as the pulenu'u of the accused's village have all presented testimonials as to the good character of the accused.
    
14. The pulenu'u of the accused's village also confirms in his testimonial that the family of the accused had performed a ifoga to the family of the deceased which was accepted. The family of the accused had also contributed to the "lauava" of the deceased and had paid the accused's fine imposed by the village council. The contribution by the accused and his family to the "lauava" of the deceased consisted of 60 cartons of herring, a cattle beast, a large fine mat, and $5,000 cash.
    
15. The accused also has previous convictions in 1991, 1999 and 2000 for offences of a different kind from manslaughter. I will treat the accused as a first offender for present purposes.
    

Aggravating factors

16. There are several aggravating factors in this case. These are (a) the use of rocks and a rod or stick to assault the deceased, (b) the overly excessive force used by the accused as evidenced by the number of injuries suffered by the deceased and the severity of those injuries, (c) the injuries or nearly all of them must have been inflicted while the deceased was already on the ground and was helpless, and (d) the element of vindictiveness or revenge involved in the assault.
    
17. Whilst there are cases where the failure of an accused to render assistance to the victim of his crime would be an aggravating factor, that is not so in every case and this is not such a case. Given the circumstances of what happened in this case, I think it would not be realistic to expect the accused to change so abruptly in a very short period of time from being a brutal assailant to a good Samaritan. If the accused had undergone such an abrupt change, I would have taken that as a mitigating factor. But I would not consider his failure to do so in the present circumstances as an aggravating factor.
    

Mitigating factors

18. The principal mitigating factor in this case is provocation. The accused and his family were asleep when the deceased who was drunk threw a breadfruit at the accused's house and called out, "O fea la le alii lea o Tia, sau la"; "O le po nei ou te fasiotia ai oe". These were very provocative words. The accused must have been further provoked by the fact that he and his family were woken up from their sleep about the middle of the night by the accused's drunken behaviour. Apart from provocation, the ifoga performed by the accused and his family, the village fine which the accused and his family have paid, and the fact that I have decided to treat the accused as a first offender for present purposes are also mitigating factors.
    
19. I would not consider the deceased's actions in pulling out plants near the house of Tiumalu Tagata, a relative of the accused, as part of the provocation from the deceased to the accused. This is because that happened before the deceased reached the house of the accused. So the accused must have been still asleep when the deceased pulled out the plants near the house of Tiumalu Tagata and there is nothing in the summary of facts to suggest that the accused was aware of such action by the deceased.
    

The decision

20. The approach to sentencing that the Samoan Courts have adopted is to begin by setting a starting point for sentence. This starting point is determined by having regard to the aggravating and mitigating factors relating to the offending. This defines the precise criminality of the offending. The starting point is then adjusted up or down by having regard to the aggravating and mitigating factors relating to the offender.
    
21. In setting a starting point for sentence in this case, I consider the deceased's provocative conduct and the injuries suffered by the deceased as part and parcel of the offending. I will take 7 years as the starting point for sentence. I will deduct 2 years for the guilty plea. That leaves 5 years. I will deduct a further 8 months for the other mitigating factors. That leaves 4 years and 4 months.
    
22. The accused is sentenced to 4 years and 4 months imprisonment. The period of time during which the accused was remanded in custody is to be further deducted from this sentence.
    

CHIEF JUSTICE

Solicitor
Attorney General's Office, Apia for prosecution
Latu & Ey Law Firm for accused