SUPREME COURT OF SAMOA
Police v Toga [2012] WSSC 57

Case name: Police v Toga
Citation: [2012] WSSC 57
Decision date: 06 February 2012
Parties: Police v Pati Auano Toga and Afakasi Auano Toga males of Salelavalu
Hearing date(s): 
File number(s): 
Jurisdiction: Criminal
Place of delivery: Mulinuu
Judge(s): Nelson J
On appeal from:
Order:
Representation:  Ms L Taimalelagi for prosecution
Ms R Papalii on behalf of Mr T K Enari for first defendant
Ms R Papalii for second defendant. 
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited: 
Nepa v Attorney General [2010] WSCA 1
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
THE POLICE
Informant

AND
PATI  AUANO TOGA  male of Salelavalu.
First Defendant

AND
AFAKASI AUANO TOGA male of Salelavalu.
Second Defendant

Counsel:	Ms L Taimalelagi for prosecution
		Ms R Papalii on behalf of Mr T K Enari for first defendant
		Ms R Papalii for second defendant. 
Sentence:	06 February 2012

SENTENCE
These are two brothers from Salelavalu who have pleaded guilty to assaulting and killing the deceased Fogatafua Tafa Laifa a 28 year old male of the neighbouring village of Iva in Savaii.  
For the purposes of a Coroners Finding, I find that the said Fogatafua Tafa Laifa died on Monday 18 October 2010 at Tupua Tamasese Meaole Hospital at Motootua from head injuries sustained in an assault on him by the defendants on the evening of Saturday 16 October 2010 at Iva.  I certify also that alcohol played a substantial part in this incident and further that the defendants will this morning be dealt with according to law.  
The facts are that on the Saturday evening in question around 10:00 pm the second defendant Afakasi and a cousin were returning from a social function held in the village of Iva.  The defendants maintained that neither of them had been drinking at the function which was a church dance.  They however passed the intoxicated deceased standing in front of the shop where he worked consuming alcohol.  As they passed the deceased made disparaging remarks about their village and swore at them.  The second defendant ignored the drunk deceased and went and fetched the deceaseds employer who came and calmed him down.  
As the two boys were leaving the scene the deceased broke free and pursued the second defendant challenging him to a fight.  Afakasi obviously had decided enough was enough and turned and began fighting with the deceased.  The problem was Afakasi was sober and the deceased was on what I have read grossly intoxicated.  During the course of this fight the second defendant punched the deceased on the mouth and caused him to fall onto the road.  The fight was eventually broken up by the second defendants cousin and the deceaseds employer.  In the course of this the deceased according to the police summary of facts also punched and fought with the second defendants cousin and his employer again had to intervene and pull away the aggressive deceased.  
As he was being pulled the deceased kept yelling out that he was not afraid of anyone from Salelavalu and a fight erupted again with the second defendant.  At about this time the younger first defendant Pati came onto the scene as he was also on his way home from the same dance.  He saw his brother fighting so he grabbed a rock and hit the deceased on the head.  The deceased again fell onto the road this time unconscious and the defendants left the scene.  Villagers took the deceased to the hospital at Tuasivi that night where he received some treatment but was for some reason he was not x-rayed or kept overnight for observation as he should have been.  The material before the court indicates he was attended to by a nurse and discharged and told to come back the next day.  
The next day when he reported to Tuasivi Hospital he collapsed.  It was clear his condition had deteriorated and he was then admitted to hospital and later transferred to the National Hospital at Motootua.  He died the following day 18 October 2010 at Motootua the cause of death being brain oedema or swelling caused by extensive subdural haematomas  or bleeding in the brain with an underlying fracture of the right temporal bone.  In my capacity as Coroner I am opening a separate investigation into the adequacy of the treatment that the deceased received at Tuasivi Hospital.  With a view to finding out exactly what treatment he received and whether that had any effect on his eventual death.  For the purposes of the present matter there is no doubt in my mind that the use of the rock was a major contributing factor to death.  
The maximum penalty for manslaughter which the defendants have pleaded guilty to is life in prison.  As noted by the Court of Appeal in Nepa [2010] WSCA 1 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 sentencing discretion is called for.  Every case depends on its facts and the relevant circumstances of the offender.  But at all times the court should never lose sight of the seriousness of the offence because after all a life has been in most cases needlessly lost.  
I accept the defence counsels submission that the defendants in this matter were provoked.  The second defendant by the deceased words, conduct and action and the younger first defendant to some extent by seeing his brother fighting and feeling compelled to aid him.  Both defendants are first offenders with clean records and good character references.  Their guilty pleas and ready co-operation with the police are also in their favour.  They and their families have been penalized by their village council who have also attended to a formal ifoga to the village of Iva for this matter.  It is unfortunate these efforts did not directly involve the deceaseds parents who have told the court that they reside in Saasaai and were unaware of any reconciliation taking place.  But I take into account that part of the reconciliation process that has been carried out.  
I have taken into consideration also what both your lawyers have said to the court.  And that sending you both to jail will adversely affect your family as a whole because you are brothers.  But there is no question that the seriousness of the offending and its circumstances especially since one of you used a rock requires a sentence of imprisonment.  I am also of the view that your penalties should be different to reflect the different roles that you played in the fatal assault.  You Afakasi used only your fists whereas you Pati reached for the more deadly rock.  
Considering all the circumstances sentences of 5 years for you Pati and 3 years for you Afakasi would be appropriate and justifiable.  But there are mitigating factors in your favour that require a deduction to that term.  Factors which I have referred to such as your first offender status, your guilty pleas and ifoga.  Accordingly I reduce the penalties for you Afakasi to one of 2 years and for you Pati to one of 3 years and direct that in respect of you Pati because of your age your time be served at the Olomanu Juvenile Facility.  
In respect of the defendant Pati Auano Toga he is convicted and sentenced to 3 years in prison to be served at Olomanu Juvenile Facility.  For the defendant Afakasi Auano Toga he is convicted and sentenced to 2 years in prison.  

JUSTICE NELSON