Police v Silva [2011] WSSC 22 (25 February 2011)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND

SPA JOHNNY SILVA
male of Nuu, Vaitele-fou and Faleula
Defendant

Counsels: Precious Chang for prosecution
Tasi Patea for defendant

Sentence: 25 February 2011

SENTENCE

Introduction

1. On Thursday morning 15th January 2009 the deceased, a 26 year old single woman of Aele village left her home for work. She was employed as a house girl at Nu'u. She did not return home that day. On Saturday the 17th January her dead body was found by her father in the bushes behind her place of work. Her naked body had begun to decompose.
   
2. The accused was questioned by police on the 22nd January 2009. During the interview he gave a written statement in which he admitted to the killing of the deceased. He was charged with the murder of the deceased which he denied. Upon reduction of the charge of murder to manslaughter the accused entered a guilty plea.
   

The Facts (as related by the accused in his police statement)

3. The deceased was hanging her washing while she was being watched by the accused who was standing underneath an avocado tree armed with a small knife. The deceased was alone. The accused who lived next door went with the knife to pick some avocados. The deceased's employer was the aunt of the accused.
   
4. When the deceased went inside the house after hanging the washing, she was followed inside by the accused. He did not pick any avocado. She was washing the dishes when the accused asked her if she remembered him. She said she did.
   
5. He then questioned her why she accused him of being a moetolo. She did not reply. After the same question was repeated many times she swore and chased the accused out of the house. This angered the accused.
   
6. He held the knife to her neck, locked her hands and the ensuing struggle which followed resulted in the knife dropping to the floor. He then punched the deceased causing her nose to bleed. She fell on her face as she tried to run away. As she turned on her back the accused kicked her left jaw with his right foot. Blood oozed from her mouth and nose. Thinking that she was dead, he panicked, he was shocked and called her name but no response was made. He then taped her hands and mouth and dragged her body to the nearby bush area.
   
7. Again the accused attempted to illicit a response from the deceased but there was none. He went back to the house to wipe out the blood on the floor. On his return to where he left the deceased, he was certain the deceased was dead and the accused felt very scared.
   
8. In an attempt to create a suspicion that the offence was committed by more than one person the accused ripped the deceased's skirt and top. He then smashed the deceased's head with a rock and he saw parts of her brain oozed out from the wound. He then tied her skirt around her head and left.
   
9. The accused walked back to where he was living. He showered and watched television. Two days later 17th January 2009 when the deceased's body was found she was completely naked with the skirt around her neck.
   
10. Post Mortem examination was done on the 26th January 2009. No definite opinion could be given as to the cause and manner of death as the body was in the advanced stage of decomposition.
    

Defence Submissions

11. Defence counsel submitted firstly that some parts of the prosecution summary of facts is denied by the accused. He told the court the accused saw the deceased at work next door on the day in question and he went over to question her about an accusation she made against him. He wanted to tell the deceased that the accusation should be leveled at the accused's brother and cousin. But the deceased not only replied in anger and swore, but she also pushed and shoved the accused out of the door. She also punched the accused on the mouth resulting in a bloody nose.
    
12. In retaliation the accused punched the deceased on the jaw which felled her face downwards to the floor. He then kicked the deceased on the chin. He was wearing safety boots and the kick was heavy and nasty. He walked outside but went back in shortly afterwards and found her dead. He tried to resuscitate her. He tried to ring his family but the telephone was toll-barred.
    
13. The accused was in total shock and disbelief, he was frightened, worried and scared as he anticipated the consequences of his offending. He then decided to cover his tracks by dragging the deceased body to the bushes nearby to make it look like there were several people involved, and he used the rock to try and alter the crime scene.
    

Courts view of the facts

14. As only the accused and the deceased were at the scene of the crime, only the two of them knew and saw the events which took place resulting in the death of the deceased. The court has only heard from the accused through his cautioned statement to the police on the 22nd January 2009, the day he was arrested, and the slightly edited version of his cautioned statement given by his counsel in his submissions. No credible explanation has been given by counsel as to why the edited version of facts is different from what the accused told the police in his statement. In any event the facts as submitted by defence counsel convey a more grim and serious attack than that contained in the police statement.
    
15. The court will not attempt to establish the exact details of the offending which led to the death of the deceased. Certain facts have been established to the satisfaction of the court for the purpose of this sentence.
    
    • (i) When the accused confronted the deceased on the day of the incident he was unhappy and angry with the deceased.
    • (ii) The accused went inside the house with a knife where the deceased was employed and an argument took place. The accused did not leave the house when he was either asked to leave (as the prosecution alleged) or pushed (as the defence contended).
    • (iii) The confrontation took place in which the accused punched and assaulted the deceased which caused the deceased to drop to the floor. She was bleeding from the face. She was kicked on the chin. The accused believed she was dead. He dragged her to the nearby bushes and went back to the house to cover up the scene of the assault.
    • (iv) He returned to the bushes and in the belief that the deceased was dead, he ripped the deceased's clothes then smashed her head with a rock causing parts of the brain to ooze out.
    • (v) He then went to his home, showered and watched TV.
      

Aggravating Features of the offending

16. The accused being armed with a knife when he approached the deceased in a state of anger indicated that he either intended to use that knife or to threaten the deceased with the knife. I agree with the prosecution that the assault was premeditated but I do not agree that the killing was premeditated.
    
17. Perhaps the worst aggravating feature is the vulnerability of the deceased at the time of the attack. She was alone in a somewhat deserted area and whilst the accused was armed, she was not. She was trapped inside the house and any screams on her part would have borne no fruits.
    
18. Another serious aggravating feature is that the accused knew that the deceased's family and police would be looking and did look for her body. He was uncooperative. According to his statement to the police made five days after incident, his aunty had also telephoned him about the missing deceased. His uncooperative nature is a clear indication of the lack of remorse on his part. He knew very well that the deceased's body would decompose if not discovered sooner. Indeed when the body was found, not only had it started to decompose but the dogs have helped themselves to the corpse.
    
19. The circumstances of the offending prompted the court to seek a psychiatric report given his apparent indifference to his offending. He does not appear to suffer from a treatable mental disorder. His propensity to engage in violent offending, venting his displeasure and anger at those he dislikes for various reasons appears to be the reason for his offending in this matter.
    
20. It cannot be ignored that this offence was committed while he was on parole. He has previous convictions for arson and for burglary and theft. The circumstances surrounding those offences are contained in the probation reports submitted to the court. Again his re-offending by the commission of this offence is a clear indication of the lack of remorse.
    

Mitigating Features

21. The court rejects defence counsel's submissions that there was an element of provocation. As indicated earlier the accused armed himself with a knife when he approached the deceased inside the house and he refused to leave when he was told to.
    
22. The court accepts as mitigating factors the following:
    
    • (a) the accused pleaded guilty promptly when the charge was reduced to manslaughter
    • (b) the accused's family have apologised traditionally to the deceased's family and contributed substantially to the funeral expenses.
      

Sentence

23. Loss of human life through violent offending not only causes emotional distress to the family and friends of the deceased, it has shaken and torn the fabric of decency and harmony within society. This accused although he will be incarcerated for a lengthy period of time, he will after that time see his family and friends. But the family and friends of the deceased have been permanently denied the pleasure of her fellowship and companionship. At the tender age of 26 she has been denied the right to live her life to the full.
    
24. The prosecution has submitted for the information of the court the range of sentences imposed for the offence of manslaughter. Needless to say that for manslaughter the sentences imposed have varied from lengthy terms of imprisonment to non-custodial sentences depending on the circumstances of the offending.
    
25. In determining the starting point of course the focus will be on the actual offence and the accused's involvement. The aggravating and mitigating features of the offending determines the starting point. For this offence I consider ten years as the starting point. For the apparent lack of remorse and his previous record of convictions I will add four years. In mitigation I will deduct two years for his guilty plea and one year for the traditional apology.
    

Sentence

The accused will serve 11 years imprisonment less any time he was remanded in custody.

__________________
JUSTICE VAAI