Police v Taumaloto [2017] WSSC 160 (13 December 2017)

SUPREME COURT OF SAMOA
Police v Taumaloto [2017] WSSC 160

Case name:	Police v Taumaloto
Citation:	[2017] WSSC 160
Decision date:	13 December 2017
Parties:	Police v ISAAKO MAUOLA TAUMALOTO male of Saoluafata.
Hearing date(s):	17 November 2017
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Clarke
On appeal from:
Order:	Accordingly, you are convicted and sentenced on the charge of manslaughter to 2 years and 10 months imprisonment less time in custody
Representation:	F Ioane for prosecution A Su’a for defendant
Catchwords:
Words and phrases:
Legislation cited:	Family Safety Act 2013) Sentencing Act 2016, (section 17(1),
Cases cited:	R v Raipira [2003] NZCA 217; [2003] 3 NZLR 794, the New Zealand Court of Appeal, (Re v Leuta [2001] NZCA 283; [2002] 1 NZLR 215 at p 229), Police v Fiva [2008] WSSC 89 (28 October 2008) Sapolu CJ, Police v Pepe [2013] WSSC 47, Police v Tofaeono [2006] WSSC 23 (8 May 2006), Police v Talataina [2010] WSSC 18 (6 April 2010), Police v Ausage [2007] WSSC 28 (30 April 2007), New Zealand Court Appeal in Murray v R [2013] NZCA 177, Police v Piuila [2010] WSSC 21 (15 March 2010), Police v Sofala [2012] WSSC 108 (3 July 2012), Police v Tutogi [2007] WSSC 6 (15 February 2007), Nepa v Attorney General [2010] WSCA 1 (7 May 2010) and New Zealand authorities.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

ISAAKO MAUOLA TAUMALOTO male of Saoluafata.
Defendant

Counsel:
F Ioane for prosecution
A Su’a for defendant

Hearing: 17 November 2017

Sentence: 13 December 2017

S E N T E N C E

1. Isaako, you appear for sentencing on one charge of manslaughter which carries a maximum penalty of up to life imprisonment.
2. Before I do so, I issue the coronial finding as follows. I find that the deceased Sara Taueetia, a 38 year old female of Salua Manono and Saluoufata died on the 2^nd May 2017 at Moto’otua Hospital from head injuries namely a left subdural hemorrage as a result of blunt force trauma suffered by her as a result of a fall following the accused unlawful assault on her.

The Offending

3. According to the Summary of Facts accepted by you and your counsel, on the 2^nd May this year, you were at your home with your wife at Saoluafata between 7.00am and 10.00am. Your wife had been telling off your children for not washing up and for messing up the house. You heard what your wife was saying so you told her off. You both then became involved in a verbal argument.
4. In your PSR, you told Probation that your wife had said that a resolution for the children is to hit the children in the head with a machete. You also say she swore at you.
5. According to the Summary of Facts, you became ‘enraged’ and then slapped your wife on the face. As a result, she fell down the concrete steps sustaining an injury to her left upper brow, head injuries and abrasions to her body. You told the Probation Service that you apologized to her and had breakfast with her but about 30 minutes later, she started to complain of her head hurting. You arranged an ambulance and she was later taken to hospital. Her condition was noted as ‘deeply unconscious’ by the attending doctor at hospital. Her death was caused due to a left subdural hemorrage as a result of blunt force trauma.
6. You were initially charged with murder. On reduction to manslaughter, you entered a guilty plea.

The Accused

7. You are a 49 year old male of Saluoufata. The victim is your wife. You are now a widower as a result of your offending. You have 7 children and are unemployed. You completed school to year 12.
8. You told the Probation Service that you deeply regret your actions and are worried about the welfare of your children, especially seeing their mother can no longer care for them.
9. You have through family reconciled with your wife’s family and presented 2 cattle beast on the day of your wife’s funeral and $5.000.00. Your wife’s aunty has confirmed reconciliation and forgiveness. The Pule nu’u of Saloufata has also confirmed an ifoga presentation.
10. I have read the character references in support of you from Reverend Samuelu, the Pule Nu’u of Saluoufata, your parents and Dr Luatupu Ioane-Cleverley as well as other refreences. I have had particular regard to the reference from Dr Ioane-Cleverley which speaks of your close relationship with your deceased wife and your recognition of the consequences of your actions.

The Victim

11. The victim is your wife. She was 39 years of age at the time of her death.
12. Her death has had a devastating impact on her family. It has also left her children without a mother. The cost of the funeral to your wife’s family was stated as $50,000.00.
    

Aggravating Factors:

13. The aggravating features of your offending are:
14. That your assault which resulted in the death of your wife was within the context of a domestic relationship (section 17(1), Family Safety Act 2013); and
15. The offending was in the general vicinity of your children; and
16. The breach of trust involving your assault on your wife was in your own home.
17. Prosecution submits that the loss of life is an aggravating feature of your offending. That is an element of the offence of manslaughter, not an aggravating feature of the offending in these circumstances.

The mitigating features

18. In respect of your offending, I accept as mitigating the fact that once you were aware of your wife’s medical condition, you sought medical assistance. I also accept that there was a degree of provocation from the words uttered by your wife and the exchange between you that caused you to slap her. That degree of provocation however is low.
19. In the VIR at page 2, Metala Taue’etia says that no reconciliation had occurred nor had any members of your family attended to speak with them or to reconcile. This is however contrary to what he had said at page 1 of the VIR which refers to the payment of $5,000.00 and the presentation of two cows. In terms of reconciliation and ifoga, I rely on what Metala Taue’etia says at page 1 together with the confirmation by Mulipola Metara referred to in the PSR and the reference provided by the Pulenu’u of Saoluafata.
20. Personal to you therefore is your prior good character, the ifoga and reconciliation process that has been carried out personally or on your behalf, your genuine and heartfelt remorse and your guilty plea which was entered on withdrawal of the charge of murder.

Discussion

21. I accept that your wife’s death is a tragedy for all involved including for you Isaako. You did not intend to kill your wife. Her death was the very tragic consequence of you slapping her and her subsequent fall from your slap. As a result, you have lost your wife and your children their mother. Her family has lost a member who was clearly loved. From what I have read including in the reference from Dr Ioane-Cleverley, yours was also an apparently loving relationship.
22. While it is a tragedy for so many people including for you Isaako, your unlawful assault on your wife was an act of domestic violence, too common and prevalent in Samoa. I expect that you have regretted that day ever since and it is a burden you will carry for the rest of your life.
23. Prosecution seeks an imprisonment term with a start point of 9 to 10 years imprisonment. The accused through counsel seeks a non-custodial sentence and for the Court apply section 9 of the Sentencing Act 2016, that is, the Court take into account any offer, agreement, response or measure to make amends. If a custodial sentence is to be imposed, a start point of 2 years imprisonment.
24. There is no guideline judgment or tariff for manslaughter sentencing. In R v Raipira [2003] NZCA 217; [2003] 3 NZLR 794, the New Zealand Court of Appeal in terms of sentencing for manslaughter stated:

“[128] The um see for mfor manslaunslaughter is imprisonment for life. This Court has emphasised that the circumstances of manslaughter vary so widely that attempts to provide guidelines according to categories risks inflexibility and would divert the sentencing inquiry from the degree of culpability in the particular case (Re v Leuta [2001] NZCA 283; [2002] 1 NZLR 215 at p 229). Culpability is higher in cases where manslaughter results from intentional harm. In such cases, the sentence imposed must reflect the need for deterrence of intentional conduct which risks serious harm or death. Other factors such as provocation or circumstances personal to the offender which may diminish responsibility may affect culpability significantly. Sentences in other cases where the death giving rise to liability for manslaughter is a result of intentional violence may provide guidance. But the culpability of each offender needs to be assessed in the particular context.”

25. In a similar vein in Police v Fiva [2008] WSSC 89 (28 October 2008), Sapolu CJ stated:

“[29] Those cases show that the sentences imposed in manslaughter cases have ranged from non-custodial sentences to lengthy terms of imprisonment which reflects the wide range of varying circumstances in which the offence of manslaughter has been committed. As a consequence, it has not been possible to set a tariff sentence or starting point which is applicable across the board to all cases of manslaughter.”

26. I have reviewed the various authorities referred to by Prosecution as well as counsel for the accused. This case does not fall within the same category as for instance Police v Pepe [2013] WSSC 47 which involved the accidental discharge of a gun by the accused killing his sister. It is also not within the same class of offending as Police v Tofaeono [2006] WSSC 23 (8 May 2006) which involved an unintentional stab wound leading to death. Here, you intentionally slapped your wife causing the fall that resulted in her death. A custodial sentence is warranted both as a deterrent not only to you but others who in committing acts of domestic violence, cause unintentional death to a family member. The question is the length of the custodial sentence.
27. Having reviewed the authorities cited by both counsels including Police v Talataina [2010] WSSC 18 (6 April 2010), I consider the 9 - 10 year start point submitted by prosecution as inappropriate. Cases such as Police v Ausage [2007] WSSC 28 (30 April 2007) adopting an 8 year start point, Police v Talataina adopting a 6 ½ year start point, Police v Piuila [2010] WSSC 21 (15 March 2010) adopting a 10 year start point, Police v Sofala [2012] WSSC 108 (3 July 2012) adopting a 9 year start point and Police v Tutogi [2007] WSSC 6 (15 February 2007) resulting in an end sentence of 2 years imprisonment all involved for example a rock, stick or weapon or multiple kicks to the head or jaw or a continued assault that led to the death.
28. The question here is determining the degree of your criminal culpaibility. I have set out at paragraphs 3, 4 and 5 what occurred. Unlike the authorities I have referred to where the accused serious assault led to the injuries that caused death, in your case, it was the tragic fall from your slap that caused the injuries that resulted in her death. Your circumstances are therefore distinguishable from those authorities. On exhibiting signs of injury, you also sought medical help.
29. In determining a starting point for sentence, I note that the New Zealand Court Appeal in Murray v R [2013] NZCA 177 expressed the New Zealand approach to manslaughter sentencing involving one punch as follows:

“[9] The Judge we to note that, hat, in many decisions of the High Court, a starting point in the range of three to four years imprisonment had been adopted in manslaughter cases where death had resulted from a single punch. However, as the Judge correctly observed, everything depended on the seriousness of the punch and the intent of the perpetrator. He noted that even a single blow can be extremely violent when it carries extreme force and serious injury is a foreseeable outcome even if it is not intended. In such cases, the Judge noted that higher starting points might be required. It followed that if Mr Murray had puncr DawsoDawson with extreme violence, the three year starting point urged by Mr Murray’s co “co20;could notn to apply”.

...

[21] We accept thsentencntencingncing range of three to four years imprisonmas often been adopted as a starting point in cases where anre an offender causes the death of a victim by means of a single punch. Ho, as Court noted in R&in R #160;v Tai starting point fint for manslaughter may need to be increased in cases where, as the Crown submitted in that case, culpability was higher as a result of an intention to cause really serious harm to the victim, the nature of the serious violence actually used and the fact that death resulted.”

30. That appears to be the New Zealand manslaughter position involving a single punch. Having considered the various domestic authorities including Nepa v Attorney General [2010] WSCA 1 (7 May 2010) and New Zealand authorities to which I have referred and taking into account the aggravating and mitigating features of your offending including the domestic violence nature of your offending, I consider 5½ years start point for sentence as appropriate. From that, I deduct 6 months for your genuine remorse. At the age of 49, you are a first offender and have supportive references that speak of your prior good character. I deduct 6 months for your prior good character leaving 4 years and 6 months imprisonment. For the ifoga and reconciliation carried out with your wife’s family and which will be particularly important for your 7 children, I deduct 9 months. That leaves 3 years and 9 months imprisonment. You pleaded guilty on the reduction of the charge to manslaughter and a deduction of 11 months is applied leaving 2 years and 10 months imprisonment.

Result:

31. Accordingly, you are convicted and sentenced on the charge of manslaughter to 2 years and 10 months imprisonment less time in custody.
32. I wish to thank both prosecution and accused counsel for their helpful submissions and the authorities referred to which have been of assistance.
    

JUSTICE CLARKE