Police v Lalofatumalaga [2012] WSSC 122 (19 October 2012)

SUPREME COURT OF SAMOA

Police v Lalofatumalga[2012] WSSC 122

Case name: Police v Faafeu Lalofatumalaga

Citation: [2012] WSSC 122

Decision date: 19 October 2012

Parties: POLICE (prosecution) and FAAFEU LALOFATUMALAGA male of Maota

Hearing date(s): 2 October 2012 and 12 October 2012

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE SLICER

On appeal from:

Order:

Representation:
P Chang and R Titi for the prosecution
T S Toailoa for the defendant

Catchwords:

Words and phrases:

Legislation cited:
Young Offenders Act 2007

Cases cited:
Attorney General v Matalavea [2007] WSCA 8
Police v Sione [2006] WSSC 6
Police v Aisea [2006] WSSC 47
Nepa v Attorney General [2010] WSCA 1
Whithers v R [1925] NSWStRp 38; (1925) 25 SR (NSW) 382
Police v Lagalaga [2008] WSSC 103
Police v Vailope [2010] WSSC 66
Ulugia v Police [2010] WSCA 15

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN
POLICE
Prosecution
AND
FAAFEU LALOFATUMALAGA male of Maota
Defendant

Counsel: P Chang and R Titi for the prosecution

T S Toailoa for the defendant

Hearing: 2 October 2012 and 12 October 2012

Sentence: 19 October 2012

Charge: Manslaughter

SENTENCE OF SLICER J

1. Faafeu Lalofatumalaga (“the defendant”) has pleaded guilty to the crime of Manslaughter. There had been a series of incidents or versions, during the day of 7 January 2012 and a scolding of the daughter of the deceased about electricity use. The argument escalated involving the defendant’s father and the victim’s father, with some punching and wrestling between the two. Others intervened and attempted to drag the men apart. The defendant struck the deceased with a solid piece of wood. The victim stood up with blood coming from the head. He was taken to hospital and later died on 8 January following cardiac arrest.
2. On the defendant’s version advanced by his counsel, the deceased was still in contact with the defendant’s father at the time the defendant struck him, a claim not challenged by the prosecution when invited by the Court to reply. Neither did the prosecution seek a ‘disputed facts hearing’. In his caution statement the defendant stated:

“when I hit him he was bending down and he was wrestling with my father and my father was at the bottom.”

3. The Court is required, absent challenge, to accept that version.
4. The Court notes that in its sentencing submission relevant to aggravation and vulnerability, the prosecution states that the victim was more vulnerable

“...because the deceased was actually wrestling with the defendant’s father, and he was unaware of the Defendant’s approach...”

a matter which differs from its own statement of facts.

5. The medical records state in part:

“Upon arrival the same day at about 2000 hours (8pm), he was fully conscious and conversing well but a bit drowsy.

The patient was then admitted for neuro-observations and treated accordingly for his head injury.

On examination, his vital signs (Blood pressure, pulse rate, temperature and respiratory rate) were all within normal limits. He had a Glasgow Coma Scale of 15/15 with pupils being unequal. The right pupil measured ~3 mm and was reactive to light, but the left pupil was pin point although this was a result of an old injury in childhood. Power in all extremities was normal (5/5).

Injuries sustained:

1. Superficial laceration to left frontal side of scalp
2. Bruising left back

~2300 hours (11pm), Mr Sa’u began to deteriorate as he lost consciousness, became unresponsive to commands with a Glasgow Coma Scale of 6/15 (E-1, M4, V-1). Both pupils were then dilated and sluggishly reactive to light. There was also obvious protrusion of the left eye from its socket (proptosis).”

6. The Glasgow Coma Scale of 15/15 is the highest scale of a person’s physical condition i.e. the most dangerous condition for an injured person.
7. The defendant was interviewed under caution on 8 January and was charged with the crime of murder. On 2 October 2012, in the presence of assessors, he pleaded not guilty to murder but guilty to the crime of manslaughter. His plea was accepted by the prosecution. He is entitled to the benefit of that plea but not the benefit afforded by an early plea.
8. The deceased aged 39, was married and had seven children aged between 3 and 13 years. He was the sole provider for his family.
9. The Victim Impact Report shows the horrendous harm to the family and the terrible consequence of his death. Five of the children attend school and two are too young to commence education. The report states in part:

“e) That when their children started to go to school, the deceased also started to look for employment, and he has worked for the Cabella’s Construction for two years, then another two years for the Forestry employment until he died from his incident;

f) That the deceased was the main and only provider for their family needs and everything to support their family with. The needs of her children for family and school and her needs as well, were all provided for by the deceased;

g) Even when her family had ‘faalavelaves’ her husband (deceased) always gave his full support and would always try to apply for loans to meet the demands of her family;

h) She also states that her children always talk about their father, and that she has noticed that his absence have changed their school performance. They have started to perform badly and she knows that the death of their father has affected their concentration and that they miss him so much;

i) That since the death of her husband, she has started to seek financial assistance and support from both her and the deceased’s families to help her in supporting her children;

j) That she truly misses her husband;

The sister of the deceased states as follows –

a) That the deceased is her youngest brother;

b) That the deceased always used to visit their family even though he stayed with his wife’s family;

c) That their family really misses him because although he stayed with his wife, he always came to their parents when he wanted something;

d) He also has many children, and he was the main provider for his wife and children;

e) That their parents miss him because even as the deceased had his own children, he sometimes sought assistance from them in the financial support of his children.”

10. The personal notes of the family added to the report show the grief suffered as a result of the death of a loving, caring and good man.
11. The probation services reports that the defendant was born on 6 March 1993 (unverified) which would make him 18 years old at the time of the killing. He left school at Year 8, returning to a different school in 2010 but left before the school year was completed.
12. It reports that he has worked on his family’s plantation and has shown himself to be a responsible member of his family.
13. It is common ground that the defendant did not initiate the violence but ought not have intervened in the way that he did.
14. The prosecution suggests an 8 year term of imprisonment as a commencing point to which ought be added as aggravating matters:
    • - The use of a weapon. The Court accepts that a heavy piece of wood was used and the blow severe. Death was caused by that single blow.
    • - The vulnerability of the deceased who was back on to the assailant.
    • - The impact on the family; and
    • - The seriousness of the injury and the prevalence of violence.
15. The prosecution continues to use different approaches in its method of fixing a starting point. In some cases it adopts the starting point as including the matters of aggravation and in others, that those matters of aggravation should be added to the commencing point. I have mentioned before the need for consistency. Here the Court does not accept the suggested starting point of 8 years to which should be added the 4 matters of aggravation as outlined above.
16. The defence advances as mitigating matters namely:
    • - Custom in that the victim had married into the family and ought to have shown greater respect for the defendant’s father who was older. The Court ought be cautious in accepting claims of custom asserted from the bar table. The custom described is quite common throughout the world and it remains particularly strong within village and kinship societies. But it is also customary within cities and townships of many countries. Here the Court accepts the custom of respect but not the right to wield a heavy piece of wood at the back of a head with such force as to bring about death. Further, there were others in the process of quelling the struggle. Nevertheless, it was not the defendant who initiated the violence.
    • - The age of the defendant who is a first offender, and his otherwise good character.
    • - His plea which is accepted but offered only after assessors had been summoned and attended.
    • - Remorse and ifoga.
    • - The consequence of imprisonment.
17. The prosecution relies on cases such as Matalavea [2007] WSCA 8, Sione [2006] WSSC 6, and Aisea [2006] WSSC 47.
18. The Court adopts the statement of the Court of Appeal in Nepa [2010] WSCA 1 that ‘cases of manslaughter differ individually and infinitely both in degree and circumstances’, referring to the observations of Street CJ in Whithers [1925] NSWStRp 38; (1925) 25 SR (NSW) 382 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.”

19. It prefers to adopt the approach taken in Lagalaga [2008] WSSC 103 (commencing point of 5 years discounted to 3 years imprisonment) and Vailope [2010] WSSC 66 (3 years imposed on a 16 year old).
20. In Ulugia [2010] WSCA, the Court of Appeal had reason to consider, at paragraphs 36 – 41, the impact of the Convention of the Rights of a Child Article 40 and the Young Offenders Act 2007 on sentences and their effect on young persons. In that case, two of the offenders were aged 18 and 14 respectively. Here the defendant was older and did not come within the provisions of the Young Offenders Act 2007. However, the Court is prepared to treat him as a youthful offender. It is not necessary to repeat those statements of principle but the Court observes that the reduced sentence of the 14 year old by the Court of Appeal was 3 years imprisonment. However, that case did involve an unprovoked group attack.
21. Here the Court will use 4 years imprisonment as a commencing point and discount it by half for the matters stated above. Where death is caused by an attack from behind with a heavy object it is inappropriate that the offender be released immediately. The sentence will be further reduced by 2 months to take into account time served and the harm caused by imprisonment, release and re-imprisonment.
22. The Court is mindful of the consequences of imprisonment on a young person and the state of the adult prison. It recommends, in the strongest terms, to the Commissioner that the defendant be immediately transferred to the Oloamanu Juvenile Center. It doing so it pays attention to the general principles stated in the legislation relating to persons under the age of 17 years.

ORDERS:

(1) Faafeu Lalofatumalaga be convicted of the crime of Manslaughter.
(2) Faafeu Lalofatumalaga be sentenced to a term of imprisonment for a period of 1 year and 10 months to commence as and from 2 October 2012.
(3) The Court recommends the Commissioner to transfer Faafeu Lalofatumalaga to Oloamanu Juvenile Center at the earliest possible time.

..............................

(JUSTICE SLICER)