Police v Aukuso [2011] WSSC 149 (3 October 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

JOHN AUKUSO
male of Maagao Faatoia.
Defendant

Counsels: Ms T.Toailoa and F E Niumata for prosecution
Mr T S Toailoa for defendant

Sentence: 03 October 2011

SENTENCE

This defendant appears for sentence on a charge that on the 17th of September 2009 at Maluafou he assaulted the deceased causing injuries to the deceased which led to his death two days later on 19 September 2009 at Tupua Tamasese Meaole Hospital. The defendant is charged that he thereby committed the crime of manslaughter which has a maximum penalty of life in prison.

This court also sits as a Coroners Court enquiring into the cause of death of the deceased in this matter and for the purpose of a Coroners Ruling I find the that the deceased died on the 19th of September 2009 at Tupua Tamasese Meaole Hospital at Motootua as a result of fatal head injuries inflicted on him by the assault of the defendant on 17 September 2009 at Maluafou.

The defendant in this matter is John Aukuso a 23 year old male of Maagao and Faatoia, married and supports a family as does many young Samoan males. The deceased is Nuuasoa Tuigamala a male of Sataoa and Maagao Faatoia, was 20 years of age and was the defendants cousin.

The police summary of facts which the defendant through his counsel has admitted says that on Thursday 17 September 2009, the defendant the deceased and other members of the family were working together in reconstructing one of the family houses at Maagao Faatoia. The deceased had been living with the defendant at Maagao Faatoia for quite some time prior to the incident. During the construction work the boys started consuming a bottle of vodka. After their work was completed in the afternoon the group adjourned to the banks of the Vaisigano river at Faatoia to finish off the bottle of vodka.

The probation report says that during this drinking session the defendant told off the deceased about some "unnecessary behaviour shown in their household at times". This telling off probably set the scene for what was to happen. And it is probably an euphemistic way of describing a telling off of the younger deceased by the older defendant. The group finished consuming their bottle of vodka and they then left to go to a nearby shop to buy another bottle. In the course of this the group crossed the Vaisigano river. Sometime during this crossing the group met a relative of the defendant, a young boy who had just come back from school. The summary states that the defendant asked this boy to give them his mobile phone so they could sell it to buy another bottle of vodka. There was some disharmony in the group about this and some members of the group objected to what the defendant was trying to do. The summary states this made the defendant angry leading to the group splitting up and the deceased and one of his friends leaving the defendant because they did not want any trouble. The deceased and his friend went to a shop opposite the SamoaTel Compound at Maluafou and the deceased went inside the shop while his friend waited outside in front of the Gas Station next to the shop. The probation report also says that one of the reasons why the deceased and the friend left the group is because the friend did not like the way the defendant was talking to the deceased.

Not long after, the defendant was seen approaching the gas station where the deceaseds friend was waiting. The two men got into an argument and ended up fighting. This drew the attention of not only the owner of the shop but also the deceased who was inside the shop and both of them came out of the shop. The summary goes on to state that when the deceased came out of the shop, he tried to break up the fight and began swearing at the defendant and ordering him to leave the scene. This led to the defendant punching the deceased on the jaw causing him to fall down and hit the back of his head on the road. It appears that this fall on the road caused the fatal head wounds to the back of the deceaseds head and led to his death in the National Hospital two days later. The post mortem report on the deceased states that death was caused by internal bleeding in the brain due to skull fractures sustained as a result of the fall onto the road.

Regrettably this is another case where alcohol has played a significant role in a fatal incident. It is unlikely the incident would have erupted if the parties had drunk a pot of cocoa after their work rather than a bottle of vodka. It is also likely the vodka that they consumed was the cheap kind sold in plastic bottles found in grocery stores around this country; which are not only inexpensive but have a very high alcohol content.

Counsel for the defendant in his submission touched on the issue and suggested that drunkenness should not be denounced because the Government of this country promotes the consumption and sale of alcohol indirectly by the lack of regulation in this area. And directly by its support of advertising and promotion of ads featuring notable sports and other personalities. I do not know that I would agree with everything counsel for the defendant is suggesting but there is a distinct lack of regulation concerning the sale of alcohol in stores in this country and regulating the alcoholic content or alcohol percentage in products sold in this country.

There are also no regulations governing advertisements promoting the sale of alcoholic beverages. And there seems little emphasis in Samoa of non alcoholic alternatives or on the harmful effects alcohol has not only on peoples well-being but as can be seen from this case on their behaviour. The end result would seem to be a whole emergent generation growing up within the setting of an alcoholic lifestyle that is being glamourised; something that this country may well suffer the consequences of in the future if not before.

Perhaps the answer is as the learned Attorney General has pointed out to do something similar to what our neighbours in New Zealand have done through their 2010 Cabinet Paper on Alcohol Law Reform which outlines a comprehensive plan to reform laws dealing with alcohol consumption, its promotion and sale. The Attorney General has also noted how much concern has been raised about the issue of alcohol abuse by members of the public during the recent consultations involving the Village Fono Legislation where the Attorney and a committee travelled right throughout the country obtaining views and submissions.

That is perhaps where a solution could begin. In each village by each village council. By passing and enforcing laws governing things such roadside drinking, drinking during curfew, rowdy celebrations involving alcohol and the sale of this cheap jet-fuel kind of alcohol in village shops. I do not believe the Alii and Faipule of a village have to wait for the Government to act. Governments are notoriously slow to institute and implement reforms. It is in my respectful view within the powers of a traditional village council which administers order in any village to conduct its own law reform in their village and pass such measures pending the introduction of a national review and policy.

I certainly do not agree with counsel for the defendant that the court should cease denouncing drunken conduct and behaviour. Such conduct can and should continue to be denounced by the court in an effort to try and deter people and in an effort to send the message out that violent drunken behaviour is not acceptable. And that drunkenness is no excuse for such conduct.

Counsel for the defendant has pointed to factors in the defendants favour. Such as his guilty plea which has saved the courts valuable time and resources and the resources of the State. And which is a good expression of the defendants true remorse at what he had done. There is also in the defendants favour the fact that he is the first offender and his previous character appears to be of a good nature. As well there is the fact that this matter has been reconciled as between the various branches of this family. The probation office pre-sentence report confirms an interview with the deceaseds family matais established that the defendants family catered for and financed the deceaseds final services as well as providing for the cost of his coffin and burial service as well as his medical costs. Those efforts on behalf of the defendant are all in the defendants favour.

I also accept what his counsel says that John is remorseful for what he has done, after all he has killed his own cousin. Something that he will have to live with for the rest of his days. I have no doubt that if he could take back that foolish drunken punch he would. His counsel has suggested that all these factors as well as the provocative behaviour of the deceased in this matter justify leniency and mercy on the defendant and may even justify a non-custodial penalty.

I agree with everything your counsel has said in this regard except the matter of provocation. This is said to consist of the deceaseds swearing at you and chasing you away. I do not in the circumstances consider this substantial. You should have as the older relative and cousin exercised more judgment and self control. Firstly in not starting a fight with your cousins friend in the first place; and secondly in not hitting your younger cousin. It should not be overlooked that the defendants blow was forceful and severe enough to cause the deceased to fall backwards and hit his head on the road which caused not one but two fractures to the occipital or the rear part of his skull. Post mortem report on the deceased indicates that these two fractures commenced from the same starting point, one went to the left rear side of the skull and one went to the rear right side of the skull. That is an indication of the severity of the blow.

It has been often said in this court that cases of manslaughter have such a variety of circumstance that each case is unique in its own penalty. Previous decisions of the court involving drunken behaviour by defendants in punching other people have for first offender pleading guilty varied around the 2 and 3 year mark and some of these cases are referred to in the prosecutions sentencing memorandum. In fact there are other cases which make the punishment range to be in the 2 to 3 ½ year range. But the penalty in all those cases was one of imprisonment because of the seriousness of the charge and to reflect the gravity of it namely a loss of a persons life. I therefore cannot acceed to your counsels submission that a non-custodial sentence must be extended to you in this matter. However I do take into consideration all the matters that have been raised and that do exist in your favour.

In respect of this charge you will be convicted and sentence to 2½ years in prison.

............................
JUSTICE NELSON