Police v Sofala [2012] WSSC 108 (3 July 2012)

SUPREME COURT OF SAMOA

Police v Sofala [2012] WSSC 108

Case name: Police v Sofala

Citation: [2012] WSSC 108

Decision date: 3 July 2012

Parties: POLICE and ASOLA SOFALA, male of Faleasiu.

Hearing date(s): 30 April and 20 June 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Slicer

On appeal from:

Order: (sentence)
Representation:
R Titi for the prosecution
R Schuster for the defendant

Catchwords:

Words and phrases:
Legislation cited:
Crimes Ordinance 1961
Canadian Criminal Code 1985
Victorian Court of Appeal

Cases cited:
R v Bryant [1980] 1 NZLR 264
R v Kerrigan (1993) 13 Cr App R 179
R v Tolera [2009] EWCA Crim 1088; [1999] 1 Cr App R (S) 29
R v Gardiner 1983 140 DLR (3d) 612
R v Storey [1998] 1 VLR 359
Olbrich v R
R v De Simoni (1981) 147 CLR 383
Bright [1916] 2 KB 441
R v Shipton TASSC
Shipton v R [2003] TASSC 23
Nepa v Attorney General [2010] WSCA 1
Police v Ausage [2007] WSSC 28
Police v Matalavea [2007] WSSC 8
Police v Sione [2006] WSSC 6
Police v Aisea [2006] WSSC 47

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE

Prosecution

ASOLA SOFALA, male of Faleasiu

Defendant

Counsel: R Titi for the prosecution

R Schuster for the defendant

Sentencing: 3 July 2012

SENTENCE

1. Asola Sofala (“Asola”) has pleaded guilty to the crime of manslaughter contrary to the Crime of Ordinance sections 59, 61, 65 and 69. A charge of murder comprised in Information 2417/11 was dismissed by the Court on 30 April 2012 with the consent of the prosecution.
2. This crime was committed on 9 October 2011. The victim was the wife of the defendant. On 8 October, Asola had his drinking heavily with associates at a faleo’o beside a shack in the village. The group dispersed at about 2 a.m. leaving the defendant who was drunk asleep at the faleo’o. His wife went to the faleo’o and unsuccessfully attempted to awaken him to return to their home. He woke later to find his wife still with him. He stood up, slapped her to the face and pulled her to their home. He then continued to assault her until she was unconscious. She was taken to the local district hospital at 4 a.m. the following morning, still unconscious and suffering serious injury. She was then transferred to the Tupua Tamasese Meaole Hospital in Apia. Despite intensive efforts by the medical staff, she died at 7 p.m. on 13 October. In the words of the prosecution’s Statement of Facts:
   

“11. On examination of the deceased upon arrival, the following were noted-

1. She was unconscious;
2. She was 30 weeks pregnant;
3. She was bruised to the right side of her mandible;
4. An abrasion was noted on the lips and there were bruises on both arms.

12. A CT scan was also preformed upon the deceased and the following was noted –
    1. A low density lesion involving almost the whole cerebral hemisphere;
    2. A haematoma between the left temporal and parietal bone and underlying lobes of brain;
    3. The left lateral ventricle was noted to be pressed and with midline shift to the right.
13. In summary, the CT scan report showed “extensive swelling and contusion of the brain in the left hemisphere and acute subdural haematoma”
14. The deceased never regained consciousness since the assault, and after four (4) days in the hospital, she passed away.”

3. The post mortem showed the cause of death to the damage to the brain summarised as:

1. The cause of death is head injury. Autopsy has revealed haemorrhage (bleeding under the dural membrane around the brain), axonal retraction balls (evidence of traumatic axonal injury), subgaleal haemorrhage (bruising under the scalp) and bruising over the right jaw.
   

These findings are consistent with the stated history of an impact to the side of the face, a fall during which the deceased’s head hit a bed with immediate loss of consciousness and subsequent demise.

Features of raised intracranial pressure were noted both macroscopically and microscopically. This is a secondary phenomenon, in response to subdural haemorrhage and traumatic axonal injury.

2. No other injuries were identified at autopsy that have contributed to the cause of death.
   3. No natural disease was identified at autopsy that has contributed to the cause of death.
4. A female foetus was present within the uterus with height and foot lengths consistent with a gestational age of 25 -28 weeks gestation. This foetus showed no evidence of injury or congenital abnormality.
4. The defendant denied the version started by the prosecution. He denied slapping his wife at the fale and claimed that at the residence he but slapped his wife in the face once causing her to fall, hitting her head on the bedpost. He struck no further blows.
5. The defendant was interviewed on 9 and 15 October and charged on 18 October. He was granted bail on 14 November 2011. He entered a plea of guilty on 30 April 2012. He is entitled to the benefit of the plea but not for an early plea. The defendant challenged some of the particulars stated in the prosecution’s Summary of Facts. He claimed that he had not slapped her at the fale near the shop but only when they returned to their residence. He claimed, through counsel, that he only slapped her once to the face at the residence and she fell to the ground striking her head on the side of the bed.
6. The Court was required to undertake a ‘disputed facts’ hearing on this difference. A second dispute concerned the tendering of a Victim Impact Report in which the mother and sister claimed that the deceased had often been beaten by the defendant and there had been a pattern of domestic violence within the relationship over a long period of time.

Nature of Disputed Facts Hearing

7. There have been differences in the approach taken by the Courts to the principle governing the ‘proof’ of dispute facts on sentence. In New Zealand the Court of Appeal in R v Bryant [1980] 1 NZLR 264 reviewed the law in England and Australia and concluded that the plea admits no more than the elements of the offence set out in the Information or indictment. The applicable consequence is stated as:

“38. The offender does not by his or her plea, the Court said, admit what is narrated in any statement of facts. Nor, where there are depositions, oral or by written statement, is he or she to be taken to have admitted their truth. Nor, indeed, where there has been a trial, is he or she necessarily bound by every aspect of the evidence before the jury.

39. Thus, where an offender denies some fact, alleged in a statement of facts, or to be found in depositions or the evidence at trial, or which is asserted independently, on which the prosecution wishes to rely (typically as a fact aggravating the offence), the prosecution must establish its truth by ‘evidence admissible against [the offender] in accordance with ordinary legal principles.”

8. The Court did not address the question of degree of proof required in a disputed facts hearing but used the term ‘proper legal proof’ which this Court interprets to mean that the standard of proof, where the prosecution raises aggravating facts which are disputed, is one of ‘beyond reasonable doubt’.
9. The English position is somewhat similar and the Court required to conduct a ‘Newton’ hearing requiring and as stated by the Court of Appeal in R v Kerrigan (1993) 13 Cr App R 179 at 181, and subsequently confirmed in R v Tolera [2009] EWCA Crim 1088; [1999] 1 Cr App R (S) 29:

“43. It is clear beyond any argument and well-established by authority, that in a Newton type hearing the judge has to approach the questions of fact which he has to decide in accordance with the criminal onus and standard of proof.

44. Thus, as at trial, the prosecution must prove beyond reasonable doubt any fact going to the offence, or the offender’s part in the offence, on which it relies as aggravating, and that the offender contests. Any reasonable doubt must be resolved in favour of the offender. The prosecution must generally rebut any contrary fact relating to the offence, or the offender’s part in it, likely to be less aggravating or actually mitigating, that the offender asserts in reply.”

10. The prosecution has only to rebut a contrary fact asserted by the defence, but if the fact is consistent with a verdict and is credible then it is worthy of consideration. Otherwise the sentencing Judge may dismiss what the defendant asserts as inconsistent with the verdict or, if raised in a Newton hearing, is wholly implausible or manifestly false.
11. The Canadian law is determined by the Canadian Criminal Code 1985 c 46, paragraph 724 (3) which states:

“(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
(c) either party may cross-examine any witness called by the other party;
(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating facts or any previous conviction by the offender.”

12. Until that enactment, the Canadian Supreme Court by majority applied the beyond reasonable doubt test (R v Gardiner 1983 140 DLR (3d) 612) and proof is required by the person asserting either an aggravating or mitigating matter.
13. The Australian approach differs to a small degree from that taken in Byrant (supra). In R v Storey [1998] 1 VLR 359, the Victorian Court of Appeal, by majority, determine the issue of the onus in relation to the mitigating matters. The Court stated:
    

“...when a judge comes to sentence an offender, there is no general issue joined between the Crown and the offender as there is on the trial of that offender. It is not for the Crown to undertake some general burden of proving all facts relevant to sentence.

...

There can be no question of either party’s undertaking any onus of proving any further fact unless and until it is suggested that there are matters beyond the bare elements of the offence (elements that are established by the verdict or plea) which the judge should take into account in passing sentence.”

14. Storey (supra) was upheld by the High Court in Olbrich v R in which the Court stated:

“[T]o require the Crown to disprove facts which go in mitigation leads to unacceptable, if not absurd, results. If it is alleged that the offender committed the crime because he or she was a drug addict and it is for the Crown to prove, beyond reasonable doubt, that that is not so, what use is the judge to make of the conclusion if, not being persuaded that the offender probably was a drug addict he or she is, nevertheless, not persuaded that the matter is free from reasonable doubt? Is the judge then to sentence the offender on the basis that the assertion (of which the judge is unpersuaded on the balance of probabilities) is true? That is, is the judge to sentence the offender on the basis of some assumed ‘facts’ of which the judge is not persuaded?

...

The judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.

...

References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings: there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it.”

15. The outcome would seem to be that the more serious the crime the greater the responsibility remains with the prosecution. It is clear from Olbrich (supra) that a sentencing Judge may not take the facts into account in a way that is adverse to the interests of an offender unless those facts have been established by the prosecution beyond reasonable doubt (Gleeson CJ, Gaudron, Hayne and Callinan JJ at 336 – 337). If, however, there are circumstances which the Judge proposes to take into account in favour of the offender it is enough if those circumstances are proved on the balance of probabilities by the defence (Olbrich (supra) at 336 – 337).

Uncharged Conducts

16. The mother and sister stated in their ‘victim impact statement’ that the victim had been repeatedly ill treated by her husband and often her body showed bruising consistent with a beating. It would have been preferable if the material had been produced as a matter of aggravation rather than impact on the victim.
17. The Court does take into account the harm suffered by the family in the loss of a daughter, sister and friend. It recognizes that they will become responsible for the three children. The deceased’s mother is ‘caring for two of the children and the second adopted by a sister.’
18. In R v De Simoni (1981) 147 CLR 383, the High Court, following an earlier English case of Bright [1916] 2 KB 441, in part determined that a sentencing court is not permitted to take into account conduct that amounts to any other offence with which the offender has not been charged. There are exceptions which include the right of a court to decline to take into account mitigating matters such as prior good conduct or an isolated act committed entirely out of character.

Unborn Child

19. In R v Shipton TASSC (unreported 28 August 2002), I had reason to pay regard to the death of an unborn child in a bad case of motor manslaughter involving the death of two adults and the unborn child. I accepted that that death as relevant to the sentence, an approach upheld by the Court of Appeal in Shipton v R [2003] TASSC 23. In Samoa, the Crimes Ordinance 1961 section 23 makes it a criminal offence to kill an unborn child. The defendant was not charged with that crime. The question thus becomes subject to the principles stated in De Simoni (supra) and is not relevant to the determination of the present sentence.

Disputed Facts

20. The defendant and deceased had lived together for six years and had formally married in 2010. They had three children aged 5, 3 and 1 year old respectively. The Court accepts the evidence of Mary Filoi (“Mary”) that she had often seen marks on her sister Roinilina and had witnessed her sister being punched and ill treated on at least one occasion. She would see bruising up to 2 – 3 times a week. She conceded that the defendant was often a good person but was worse when taken with drink. Her evidence was corroborated by Liaina Elia (“Liaina”), Roinilina’s mother, who had also seen an assault where Roinilina’s ponytail was cut off and she was threatened with a bush knife. She said her daughter stayed and put up with the ill treatment through love, a conduct or reason which is well known to the courts.
21. The defendant denied repeated acts of assault but conceded that he would slap his wife approximately once per month when she displeased him.
22. The Court accepts the evidence of Mary and Liaina and rejects that of the defendant where he down plays his previous conduct.
23. The events which led to Roinilina’s death were not ones isolated or committed out of character.

Events Prior to Death

24. The defendant had been drinking heavily. He woke up or regained consciousness under a rubbish stand. He had no memory of where he had been or how he had got there which, is not uncommon with a person heavily intoxicated. He denied that Roinilina had come to the fale adjoining the shop where the men had been drinking. Olotoa Leauanoa (“Olotoa”), who had been employed by the couple in part as a night watchman and who had not been drinking saw Asola assault his wife at the fale by slapping, punching and dragging his wife by the hair to their home fale. He described the defendant as drunk, violent and using swearwords. He said Roinilina had been slapped and punched and had nothing to provoke the defendant. It is likely that the defendant, heavily intoxicated, has no clear memory of his conduct.
25. The Court is satisfied beyond reasonable doubt that the defendant assaulted the deceased on a number of occasions and dragged her to their residence.
26. That in turn colours what occurred immediately preceding the death. The defendant gave at least three conflicting versions, two to the police and at least one, with inconsistencies to the Court. He claimed to have slapped her but once, she fell or was pushed slightly, hitting her head on the bed. His account is belied by the presence of other injuries seen on admission to the hospital and his credibility in denying the assault witnessed by Olotoa.
27. The autopsy shows bruises to the left mandible, abrasion to the lipo and bruises to both arms. The cause of death was a result of her hitting the bed following a pinch or punch. But the force required to produce the damage to the brain namely, axonal, subgaleal and subdural haemorrhage required far greater force to cause her head to hit the bed with immediate loss of consciousness rather than a slap.
28. The Court does not accept that Roinilina provoked the defendant inside the residential fale rather than to possibly chide him for his excessive drinking.
29. The Court is satisfied beyond reasonable doubt that the deceased was struck with forceful blows to the head and body which caused her to strike the bed in such a way as to produce serious injury resulting in death.

Sentence

30. The prosecution suggests 10 – 12 years imprisonment as a commencing point which takes into account the nature and form of the manslaughter to which should be added the prior misconduct. It relies on the classic cases of Nepa v Attorney General [ 2010] WSCA 1 and Police v Ausage [2007] WSSC 28 in support of its contention. The defendant suggests, consistent with Police v Matalavea [2007] WSSC 8, Police v Sione [2006] WSSC 6 and Police v Aisea [2006] WSSC 47 and others to suggest 8 – 10 years as an appropriate commencing point.
31. The Court will fix 9 years as a commencing point given that the defendant took immediate steps to redress the harm by taking her to the nearest hospital at about 4 a.m.
32. He is not entitled to the significant benefit of a plea. While the charge was reduced from murder to manslaughter, a matter of itself being a benefit, he put the prosecution to proof on two significant matters.
33. The Court accepts that a prompt and generous ifoga was undertaken and Roinilina’s family has accepted the ifoga. It places lesser import on the ceremony of lauava which forms part of the funerary rights rather than remorse or plea of forgiveness. Nevertheless, his contribution to that ceremony was significant.
34. Domestic violence requires the Court to give greater weight to the need for general deterrence.
35. Asola Sofala is a first offender. He was in custody from 19 October until 14 November 2011 and will receive the benefit of that term.
36. On balance of the appropriate sentence is 6 years and 11 months imprisonment to commence as and from 19 May 2012.

ORDERS

(1) Asola Sofala is convicted of the crime of Manslaughter.
(2) Asola Sofala is sentenced to a term of imprisonment for a period of 6 years and 11 months, such sentence to commence as and from 19 May 2012.

JUSTICE SLICER