Police v Apaau [2014] WSSC 50 (5 September 2014)

SUPREME COURT OF SAMOA

Police v Apaau and Leiataua [2014] WSSC 50

Case name: Police v Apaau and Leiataua

Citation: [2014] WSSC 50

Decision date: 5 September 2014

Parties: Police and Loi Apaau and Talatonu Leiataua

Hearing date(s): 19, 20 March 2014

File number(s): S1078/14, S2312/13

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Vaai

On appeal from:

Order: (Sentence)

Representation:
P Chang and L Sua-Mailo for prosecution
K Ainuu for first defendant
R Papalii for second defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Attorney General v Godinet
Police v Pelenato Tofaeono
Police v Matiasi Pili

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

LOI APAAU male of Leulumoega-tuai and TALATONU LEIATAUA male of Leulumoega-tuai

Defendants

Counsel: P Chang and L Su’a-Mailo for prosecution

K Ainuu for first defendant

R Papalii for second defendant

Sentence: 5 September 2014

S E N T E N C E

1. Following trial by assessors the two defendants from the village of Leulumoega, were found not guilty of murder but guilty of manslaughter in relation to the death of Naoafioga Sio, also of Leulumoega, on the 13^th October 2013. The third defendant Elisita Peniata was acquitted.

The facts

2. The incident which led to the two defendants being charged had its genesis in a drinking party which took place the night before at Leulumoega village at the open house of Peniata and his wife Mareta. Present at the party were the two defendants, the deceased, Elisita, Peniata and Tiitii. Tiitii left the party at about 2am.
3. Shortly after Tiitii left, the deceased, without any provocation from anyone started to get aggressive and challenged the defendant Loi to a fight. Elisita stepped in to diffuse the confrontation but the deceased continued with his aggression and refused to sit down when Elisita attempted to make him sit down. Eventually the deceased through his anger and aggressiveness punched Elisita on the face and Elisita in response punched the deceased who fell on the concrete floor facing downwards with the right side of his face facing upwards.
4. Peniata who was organizing the music and had his back to where the fighting was taking place, turned around when the deceased landed on the floor besides his feet. He made Elisita sit down. Peniata’s wife who was asleep in the main house a few meters away walked over to the scene.
5. When the deceased fell to the ground he remained there motionless. At that very moment Loi walked over and assaulted the deceased by kicking and punching to the face. Peniata pulled away Loi but as he did so defendant Talatonu kicked and punched the deceased on the face. Peniata pulled away Talatonu, and Loi rejoined the assault and when Peniata pulled Loi away Talatonu rejoined. Each defendant delivered about four punches and four kicks to the head and face of the deceased.
6. Both defendants were then ordered by Peniata to leave and they left the house. Deceased remained motionless and was snoring. Neither the defendants nor Peniata thought the deceased would die from the attack. Indeed Peniata did not consider that the deceased required immediate medical attention until later on when Tiitii who left at 2am returned to get his phone he left behind. It was Tiitii who suggested that the deceased be taken to the nearby hospital. He was declared dead on arrival at Leulumoega Hospital that morning at 6.04am.
7. Cause of death was subarachnoid haemorrhage caused by blunt force to the head and neck which lead to the right vertebral artery tear at the right side of the neck.

Submissions by the Prosecution

8. The prosecution contended that both defendants be given custodial sentences and a starting point of eight years should be adopted for each defendant as the circumstances of the offending by each defendant was within the general type to which the Nepa guidelines were intended to apply. Nepa guidelines adopted by the Court of Appeal in Attorney General v Godinet (2011) WSCA 6 suggest, that before considering factors individual to a particular offender, a starting point to commence at 10 - 12 years for the crime of manslaughter should be adopted in ordinary cases involving a group and unprovoked attack.
9. It was submitted that the response by the defendants was disproportionate to the deceased’s drunken behavior and in any event the assault was unprovoked and inflicted to the face of the deceased who was lying helplessly on the floor.
10. A number of sentences imposed by the Court in the past for manslaughter cases have been cited to the court but although they provide a general guidance each case of manslaughter differ not only in degree but also in circumstances, so that each must be determined on its facts.

Submission by counsel for Loi

11. Mr Ainuu for Loi pleaded for leniency. Mr Ainuu accepts that a custodial sentence will be imposed. He stressed that the defendant Loi, a 21 year old youth of previous good character, had not the slightest idea that the deceased would die from the assault, and upon hearing of the death of the deceased later that morning he returned to Peniata’s house. That, as Mr Ainuu submitted is a genuine symbol of remorse and shock.
12. The penalty imposed by the village and the performance of the ifoga were stressed also as mitigating factors.

Submission by counsel for Talatonu

13. Talatonu turned 18 on the very morning of the incident. He was at that time a student at the National University of Samoa studying for a certificate in Computer Science which was completed in April 2014.
14. Counsel submitted that Talatonu intends to further his studies by undertaking a Bachelor of Science degree. Counsel produced a letter from the University advising that the defendant Talatonu was doing bridging course.
15. It was also submitted that Talatonu was provoked by the deceased. How Talatonu was provoked was not elaborated upon. Due to his age it was submitted that the effect of alcohol clouded his judgment and reason resulting in his involvement with the consequences which he has deeply regretted.
16. Counsel submitted that the present case does not fall under the general guidelines in Nepa. A non custodial is sought and the court is invited to consider section 9 of the Community Justice Act 2008 and impose an alternative sentence other than a custodial one.
    
17. Like the defendant Loi the imposition of the hefty fine by the village and the performance of the traditional were also submitted as mitigating factors.

Discussion

18. Culpability of both defendant arose from their attack of the deceased while he was unconscious on the floor. They may have been unaware that he was unconscious but he was nonetheless motionless and helpless. Both of them were pulled away individually by Peniata, but when Peniata was restraining the other, the other attacked the deceased. Each of them attacked the deceased twice.
19. Counsel for Loi quite correctly did not contend that there was provocation. In saying so I reject the contention by counsel for Talatonu that provocation played a role in the assault. If anyone was provoked by the deceased it was Elisita who was punched by the deceased and Elisita retaliated by punching the deceased. Elisita then sat down when ordered by Peniata. When the deceased was felled by Elisita’s punch, he was promptly set upon by the two defendants.
20. It must be acknowledged that both defendants ceased their assault when ordered by Peniata to leave the house. No weapon was used and neither of them thought that the deceased would die as a result. Peniata himself and his wife initially did not consider the injuries suffered warranted medical attention.
21. It is also accepted that the families of both defendants have performed the traditional ifogas which have been accepted by the deceased’s family and both families have also been penalized by the Leulumoega village.
22. The court also accepts that both defendants have deeply regretted their involvement and are both remorseful.
23. It has been said in a number of cases that the crime of manslaughter differ individually and infinitely in degree and circumstances resulting in the exercising of so large a discretion in determining the appropriate penalty which range from non-custodial to lengthy imprisonment sentences.
24. The simple question is whether there is any reason for the court to depart from the Nepa guidelines in this case, particularly in the case of the defendant Talatonu. The criminal culpabilities of both defendants are exactly the same even though it was the defendant Loi who was challenged by the accused to a fight. But Loi did not accept the challenge. He in fact responded after the deceased was knocked down and lying unconscious on the floor. Mr Ainuu accordingly and quite properly did not raise provocation.
25. It is well accepted that in the case of youths or young offenders there is generally greater emphasis given to rehabilitation and less to deterrence and retribution than in the case of adult offenders.
26. But that depends on the circumstances of the offending as well as the age of the youth, and there comes a point at which the seriousness of the crime committed by the young offender, particularly if the crime is one involving violence which is great that special attention normally given to rehabilitation in the case of young offenders must give way, and greater emphasis given to punishment and deterrence.
27. In Police v Pelenato Tofaeono (2006) WSSC 23 a 25 year old defendant was sentenced to 2 years probation for manslaughter following the death of his 20 year friend. Both have been drinking heavily and wanted to eat. The defendant got a knife to open the can of herring. The two started to fight and the defendant fell down. The deceased in his state of drunkenness also fell down besides the defendant who was still holding the knife with the blade pointing upwards. The deceased died from the wounds he received.
28. In Police v Matiasi Pili (2005) WSSC 9 a 2 year probation was imposed on a 17 year old defendant for manslaughter. The defendant was challenged to a fist fight by the 20 year old deceased. When the deceased was felled by the defendant’s punch, the defendant walked away. Later that day the defendant and his cousin found the deceased still lying at the same spot. They took the deceased to his home. On the following night the deceased died at the hospital.
29. Guidelines approach in Nepa were never intended as straight jacket to preclude the application of flexible justice to the individual case. This was recognised by the Court of Appeal in Attorney General v Godinet (2011) WSCA 6.
30. A custodial sentence for each defendant is warranted. It must be said however that the attack was not premeditated, it was not sustained, it was very brief, it was not of the most serious kind and neither the defendant nor Peniata and wife considered the injuries serious enough to be life threatening. Both defendants went home on orders from Peniata. No weapon was used in the assault.
31. In the circumstances the court considers a starting point of 5 years to be the appropriate one. The court is also of the view that the defendants, particularly in the case of Loi, would have pleaded guilty if the prosecution had adopted a matured and sensible approach and charged the defendants with manslaughter rather than murder. No reasonable assessor would have convicted of murder given the facts adduced as evidence. The court should therefore make deductions as if a guilty plea was entered.
32. A deduction of 18 months will accordingly be made.
33. For the penalty imposed by the village, a further deduction of 8 months, and a further 6 months deduction for the traditional ifoga.
34. For their genuine remorse and their previous good character a further deduction of 12 months.
35. Each defendant is sentenced to 1 year and 4 months imprisonment less any time they spent in custody.
    

JUSTICE VAAI