Police v Tauleo'o [2011] WSSC 160 (5 December 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TIPASA TAULEO’O
male of Samatau.
Defendant

Counsels: Ms R Titi for prosecution
Mr R S Toailoa for defendant

Sentence: 05 December 2011

SENTENCE

The defendant appears for sentence on a charge of manslaughter by an unlawful act namely assault on the deceased. Which ultimately caused the death of the deceased at the National Hospital on 29 June 2010. Probation office pre-sentence report which seems to contain a more complete summary of the facts of this matter states that the defendant is a 37 year old male of Samatau, married with two children and employed by a local road construction company. It also states that the deceased is a 41 year old male of Vailoa Faleata and he was a mute and someone who was hard of hearing.

It appears the deceased worked for the defendants family and that he lived with the defendants family at Lelata. But he often travelled with the defendant to the defendants aiga at Samatau in the weekends. It also appears from what I have read that the two men are related through marriage. The incident occurred on the 29 May 2010 which was a Saturday and was one of the weekends where the two men paid a visit to the defendants family at Samatau. It is not clear at what time or where but the deceased purchased a bottle of vodka which he is said to have secretly consumed at the back of the vehicle during the trip to Samatau.

Given the subsequent events that occurred it is likely the vodka the deceased purchased was of the cheap jet-fuel variety freely sold in stores in this country. Sold in bottles with labels that contain no information as to the contents and sold in varying sizes to make it affordable to the average man.

Section 4(1) of the Liquor Act 1971 requires that the brewing, manufacture and sale of all alcohol in this country requires the consent of the Minister of Revenue. It means that the sale of this sort of alcohol which I describe as cheap jet-fuel has the consent of the Government.

This is not the first case that has come before the courts of this country involving alcohol related offending in particular alcohol of this variety. The files of this court and the District Court contain many cases of criminal offending where the consumption of alcohol of this kind has played a significant role. And they are full of calls by the Judges of both courts for some sort of attention to be paid to this issue with a view to implementing significant reform. A call which the Attorney General and the Liquour Board by recent announcements seem to support. It is puzzling that other relevant government entities for reasons that are not clear seem unwilling to act in the matter.

Before I proceed with sentencing for this particular case I would like to again repeat the call made by not only myself but other Judges sitting in the courts for some concerted effort to be made without delay to review policies governing the manufacture, sale and distribution of unlabelled alcoholic products in Samoa. Perhaps “unlabelled” is too strong a term because these bottles do carry labels but as noted they contain barely adequate information and certainly nothing about what is inside them. A call that should be made at this time of the year in light of the coming festive season and the usual excesses it always produces. If assistance is needed I would refer the relevant authorities to a similar exercise recently undertaken in New Zealand and which led to the New Zealand Law Reform Commission report titled “Alcohol in our lives: Curbing the Harm” a copy of which is freely available on the www.justice.govt.nz website of the New Zealand Ministry of Justice.

Returning to the facts of this case it appears that by the time the vehicle reached Samatau the deceased was inebriated as a result of his consumption of the vodka. The police summary of facts says that there he began to behave in a disorderly fashion. By causing a ruckus at the defendants family home. That seems to be a mild description of the deceaseds action which the probation office report states included the deceased screaming at the defendants female siblings and threatening people with rocks. Generally being loud, noisy and uncontrollable. This behaviour obviously angered the defendant and provoked the assault that he subsequently delivered.

The summary of facts alleges that the defendant punched the deceased a number of times and one such blow caused the deceased to fall and hit his head against the post of the Samoan fale that he was in. It further alleges that the defendant continued to punch the deceased after he fell to the ground. Something which is contested by the probation office pre-sentence report and the defendants account to them of what happened. Unfortunately the exact nature of the deceaseds injuries are not clear because the report of the post mortem that was carried out on him could not be completed due to the pathologist suddenly passing away.

I have reviewed the pathologists notes for which I am grateful to the prosecution but these do not assist greatly. But whatever the number of blows that were inflicted by the defendant, the defendant through his counsel has indicated that he accepts he caused the injuries in the assault which led to the death of the deceased at the National Hospital some four weeks after the initial assault. From what I can gather on the material available the assault seems to have caused a subdural haematoma which became more pronounced as time went on and which eventually led to the deceased being re-hospitalised just prior to his death four weeks after the assault.

Based on these facts, prosecution have sought in their submission that the court impose a term of at least 3 plus years in prison. On the other hand defendants counsel has submitted that considering the circumstances of this matter a non custodial penalty would be more appropriate.

The offence of manslaughter carries a maximum penalty of life in prison. And of this particular offence the Court of Appeal has noted in Nepa v Attorney General [2010] WSCA 1 that there is no offence in which the permissible degrees of punishment cover so wide a range. And none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty.

In other words the offence is one where the circumstances of the offending and the offender vary so much that the penalty for each case must be tailored to its circumstances. But the cases also show that by and large imprisonment penalties have been imposed. As stated by the Chief Justice in Police v Matalavea [2006] WSSC 30: the court must never lose sight of the gravity of the crime of manslaughter. And the defendants actions however much he regrets them has cost a human being his life. The life in this case that has been lost is according to the material before the court Tipasa the life of a person suffering physical disabilities.

At the time of this offending this individual was under the influence of alcohol. His behaviour might have been quite inexcusable but more consideration and tolerance should in my view have been extended to him by you. Especially given the fact that he was physically disabled and was under the influence.

In the normal course of events I would have had no difficulty in imposing an imprisonment term of three plus years as requested by the prosecution. But I accept your lawyers argument that provocation does exist in this case found in the conduct and behaviour of the deceased which led to your actions. It is also clear as pointed out by your lawyer you are a first offender with a good record. Who pleaded guilty to the charge. The fact of reconciliation is well recorded in the pre-sentence report from the probation office. Which also contains a petition by the family of the deceased for at least the courts leniency for this matter. They have in fact asked for the withdrawal of the matter against you. But that application cannot be granted because this is a serious charge and a human being has died at your hands. An imprisonment term is appropriate for your case. But I accept that the term should be reflective of the circumstances of the matter and should take account of the factors in mitigation pointed to by your counsel.

Taking all matters into consideration for this charge you will be convicted and sentenced to a period of 2 years imprisonment.

I will also for the purposes of the record issue a Coroners Finding as this court also sits as a Coroners Court confirming that the deceased in this matter Mulivai Anetima, a male of Auala Savaii and Vailoa Faleata, died at the National Hospital at Motootua on 29 June 2010 as a result of an assault sustained at Samatau on 29 May 2010. That coroners finding should also note two special features: firstly alcohol played a significant role in this offending and secondly that the offender has been dealt with according to the law.

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