Police v Vitale [2017] WSSC 151 (15 December 2017)

SUPREME COURT OF SAMOA
Police v Vitale [2017] WSSC 151

Case name:	Police v Vitale
Citation:	[2017] WSSC 151
Decision date:	15 December 2017
Parties:	POLICE (Prosecution) AND VILIAMU VITALE also known as VILIAMU VITALE FONOTI male of Falelauniu-uta and Siufaga (Defendant)
Hearing date(s):	-
File number(s):	S668/17, S665/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	For this matter you will be convicted and sentenced to 4 years in prison. Remand in custody time to be deducted.
Representation:	O Tagaloa for prosecution I Sapolu for defendant
Catchwords:	Pleaded guilty – unlawful act namely assault did cause the death of the deceased – head injuries – unlawful assault – alcohol was involved – unconscious – pronounced dead – extensive injuries – provocation – drunk and belligerent - principles of sentencing - deliberate acts of stomping on the head – assault was provoked – unlawful assault - the defendant accountable for his actions - denounce his conduct - deterrent message – remorse - pre-sentence report – convicted and sentenced – maximum penalty – life imprisonment.
Words and phrases:
Legislation cited:
Cases cited:	Police v Tupuola [2017] WSSC 60 Nepa v Attorney General [2010] WSCA 1
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

VILIAMU VITALE also known as VILIAMU VITALE FONOTI male of Falelauniu-uta and Siufaga.
Defendant

Counsel:
L Sio for prosecution
I Sapolu for defendant

Sentence: 15 December 2017

S E N T E N C E

1. The defendant has pleaded guilty that on the 13^th April 2017 by an unlawful act namely assault he did cause the death of the deceased Siona Falelua a male of Falelauniu-uta and Satapuala at Falelauniu-uta and thereby commit the crime of manslaughter. The police summary of facts which has been accepted by defendants counsel says he is a 21 year old male of Mulifanua and Falelauniu-uta single and tausi aiga. The deceased is also a male of the same village Falelauniu-uta 36 years of age and is in a defacto relationship but no children.
2. As this court also sits in a Coronial capacity I certify that on the 13th April 2017 the deceased Siona Falelua, a male aged 36 years of age of Falelauniu-uta and Satapuala died at Falelauniu-uta from head injuries sustained in an unlawful assault. I further certify alcohol was involved in this offending and that the perpetrators of the assault are being dealt with according to law.
3. The summary states that on the day in question at Falelauniu-uta the deceased was drinking with a work colleague by the name of Niusila in front of a shop. At about 8:00 pm they finished their drinks and headed home. On the way home they encountered the defendant and his co-defendant. The defendant is one of two men charged in this matter. The two men were sitting on the road.
4. The defendant and Niusila exchanged greetings and the two men kept walking. Something however triggered a confrontation because the summary then goes on to state that the intoxicated deceased began swearing at the defendant and co-defendant saying “kefe” twice. Niusila tried to get the deceased to stop but was unable to do so. So Niusila left the deceased.
5. The defendant and his co-defendant assaulted the deceased with the defendant punching the deceased causing him to fall onto a pile of rocks or “pa-ma’a”. While on the ground the defendant and co-defendant continued to assault the deceased delivering punch and kicks. Eventually by-standers intervened and stopped the assault. By this time the deceased was unconscious. He never regained consciousness and was pronounced dead at the hospital not long after being admitted. A post mortem examination showed that the deceased suffered extensive injuries to his face and head causing bleeding in the brain which eventually led to his death. The injuries indicate the beating was severe and extensive.
6. The maximum penalty for manslaughter is life in prison. In fixing a start point for sentence the court takes into consideration the purposes and principles of sentencing contained in the Sentencing Act 2016. In particular to hold the defendant accountable for his actions, to denounce his conduct and to provide to him and others a deterrent message about this kind of unacceptable behaviour.
7. It has been said of the offence of manslaughter that the circumstances are so varied that great discretion is called for in imposing a suitable punishment and that every case depends on its facts. It is relevant in this case that the deceased was at the time of the incident drunk and belligerent. There is no evidence the defendant and his companion had been drinking. They were sober and they should have left the stupid drunk alone. Because it appears they knew him.
8. The evidence indicates the deceased is a neighbour of the defendant. Unfortunately the defendant responded to the provocation and assisted in beating up the man to the extent that the beating carried on even though the deceased was helpless on the ground. It is also clear from the injury that the blows delivered targeted the vulnerable head and neck area.
9. The court accepts this was a joint assault by two defendants on one person. But there was no evidence as in the case of Police v Tupuola [2017] WSSC 60 that there were deliberate acts of stomping on the head of the deceased. It is relevant however that the assault only ceased when bystanders intervened as apparent from the agreed summary of facts. I find no aggravation in the defendant failing to assist the deceased post assault as the summary also shows bystanders had intervened and would have been responsible for aiding the deceased and taking him to hospital.
10. The prosecution have sought a 10 year in prison start point based on the case of Tupuola and also based on Nepa v Attorney General [2010] WSCA 1 which is a case of group attack. However as observed by the Court of Appeal in Nepa itself, 10 to 12 years is an applicable start point for “ordinary cases involving a group and an unprovoked attack.” Unlike Nepa this case involves only two assailants and it is clear the assault was provoked by the deceaseds conduct directed at the defendant and his companion who it appears were sitting peacefully on the road.
11. The police summary of facts also says the deceaseds friend Niusila had tried to drag away the deceased. Which indicates the deceased was behaving aggressively towards the defendant and his companion. These factors do not excuse the actions of the defendant and his friend but it places the assault into proper context.
12. In considering all the circumstances I will follow the course adopted by my brother judge in Tupuola and adopt 8 years as a starting point for sentence. Mitigation factors need to be deducted from that. As pointed out by your counsel you have a good pre-sentence report which canvasses your background and is supported by a reference from your faifeau. The report also attaches a letter from the deceaseds wife seeking leniency. It is clear from the report you are a first offender with a clean record. To reflect those matters I deduct 6 months from the start point of sentence leaves 7½ years in prison.
13. As your counsel has reiterated this morning you are a young man, you are only 21 years old. You made a mistake which you must now atone for but I am satisfied prospects for rehabilitation for the rest of your life are good. I factor this into consideration and in my assessment it is a significant factor. I will deduct one (1) year from the balance of your sentence, leaves 6½ years.
14. An ifoga and personal apology was conducted by you, this has been confirmed by the wife of the deceased and the pre-sentence report. Clearly you are remorseful for your actions and the court accepts that. I deduct a further 6 months to reflect these factors, leaves 6 years in prison.
15. Your guilty plea is also indicative of your remorse and has the other effect of saving the courts time and limited resources in enquiring into the full circumstances of this matter. In respect of that I will deduct 2 years from the balance of your sentence, leaves 4 years in prison. There are no other alterations or deductions that can or ought to be made for your sentence.
16. For this matter you will be convicted and sentenced to 4 years in prison. Remand in custody time to be deducted.
    

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JUSTICE NELSON