Police v Tupuola [2017] WSSC 60 (12 June 2017)

THE SUPREME COURT OF SAMOA
Police v Tupuola [2017] WSSC 60

Case name:	Police v Tupuola
Citation:	[2017] WSSC 60
Sentence date:	12 June 2017
Parties:	POLICE (Prosecution) v PJ TUPUOLA male of Vaimea and Siumu and MAX ALEFOSIO male of Moamoa and Safaatoa Lefaga Accused
Hearing date(s):	2, 3, 4 and 5 May 2017
File number(s):	S1728/16
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	For the accused PJ Tupuola, you are convicted and sentenced to 7 years 10 months imprisonment. For the accused Max Alefosio, you are convicted and sentenced to 5 years 6 months imprisonment.
Representation:	L Su’a and L Sio for Prosecution D Roma for Tupuola J Brunt for Alefosio
Catchwords:	Guilty to manslaughter – aggravating factors in respect of the offending – starting point for sentencing – sentence
Words and phrases:
Legislation cited:	sections 92 and 102 of the Crimes Act 2013
Cases cited:	Nelson J in Police v Tauleo'o [2011] WSSC 160 (5 December 2011), Police v Aukuso [2011] WSSC 149 (3 October 2011), Police v Mase [2010] WSSC 138, Police v Pita [2012] WSSC 19 (6 February 2012), Police v Timoteo [2011] WSSC 65 (21 March 2011), Police v Faamanu [2013] WSSC 90 (24 December 2013) Sapolu CJ, Police v Pelepesite [2015] WSSC 202 (17 November 2015)Tuatagaloa J, Street CJ in Whithers v R [1925] NSWStRp 38; (1925) 25 SR (NSW) 382 at 397, Court of Appeal in Nepa v Attorney General (supra) at paragraph 37 and Attorney General v Godinet [2011] WSCA 6 (26 August 2011).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PJ TUPUOLA male of Vaimea and Siumu and MAX ALEFOSIO male of Moamoa and Safaatoa Lefaga
Accused

Counsel:
L Su’a and L Sio for Prosecution
D Roma for Tupuola
J Brunt for Alefosio

Sentence: 12 June 2017

S E N T E N C E

1. The two accused PJ Tupuola (“Tupuola”) and Max Alefosio (“Alefosio”) were charged with murder. After a defended hearing before Assessors, the accused were found not guilty of murder but both guilty of manslaughter. They now appear for sentencing on one charge of manslaughter contrary to sections 92 and 102 of the Crimes Act 2013 (“the Act”). The crime of manslaughter is punishable by up to life imprisonment.
2. I will issue a Coroner’s finding in respect of the deceased Misa Vailini Rarotonga (“the deceased”), male 44 years of age of Vaimea. The Coroner finds that he died on the morning of Saturday 23 July 2016 at the TTM Hospital Moto’otua from head injuries sustained in an assault by the two accused. The Coroner also certifies that alcohol was involved in this offending.

The Offending

3. According to the evidence, on the evening of Friday 22 July 2016 sometime after 8.30pm, the two accused drank a bottle of Russian vodka with two other males at a home at Vaimea. The two accused left that house and again later in the evening met up with the same two males at around 11.30pm on the side road next to JP’s Bar. There, they continued to drink Russian Vodka. The deceased came out of the JP’s Bar. He came across the two accused and the two other males on the side road next to JP’s Bar as the deceased was going home. The road leads to the deceased’s home. The deceased drank with the males for a short time. He then left and walked towards his home down that side road.
4. Tupuola then went to JP’s Bar where he stood by the entrance speaking to two of the bar staff. The two other males who had been drinking with both accused went to the main road. Alefosio remained on the side road. The deceased returned and fought with Alefosio. The evidence was that this altercation was initiated by the deceased. Tupuola who was at the entrance to JP’s bar ran over and joined the altercation. According to the witness Peato Mau, the fight continued on for a while and then the deceased fell to the ground during this altercation. This in large part is consistent with both accuseds’ caution statements.
5. When the deceased fell to the ground however, the evidence of witnesses such as Tupai Tanimo, Tiniresa Seiuli and Shirley Mann for example indicate a break in this altercation with the deceased. The evidence varies on what occurred during this period but it involves the two accused being involved in an altercation with other person or persons at that area. Shirley Mann said that prior to beating the deceased on the ground, Tupuola said “fasi loa le ali’i lea na mafua ai le vevesi.” Tiniresa Seiuli gave similar evidence, though she did not say this when interviewed by Police. The two accused then assaulted the deceased while he lay on the ground. The assault was a serious assault involving multiple blunt force trauma inflicted by both accused to the face and the head of the deceased. In his own caution statement, Tupuola said he kicked his face about 3 times. In his statement, Alefosio says they kicked the deceased in the face 3 times. Other scene witnesses such as Tanimo Tupai said they kicked and stomped on the deceased face and its side about 6 times. A similar account of the number of blunt force trauma inflicted by the accused on the deceased was given by Charlie Ventura. Tiniresa Seiuli said it was 10 or more times.
6. There was no evidence that the deceased fought back when he was on the ground. The evidence was that the assault occurred either as the deceased was trying to get up off the ground or that he simply lay there as he was beaten. After both accused assaulted the deceased, they left the deceased there on the side of the road. Blood was coming from his facial injuries and he was motionless. They rendered no assistance.
7. The deceased was taken to TTM Hospital. He died shortly after arrival in the early hours of Saturday morning, 23 July 2016. An autopsy was carried out by Dr Phillip Golpak. The autopsy concluded the direct cause of death as right sided subdural and subarachnoid haemorrhage caused by blunt force trauma.

The Accused – PJ Tupuola

8. Tupuola is a 25 year old male of Siumu, Taufusi and Vaimea. He is the 6^th of 7 children. He completed his schooling to year 11 at Maluafou College. He is no stranger to the justice system. He was convicted for burglary and theft in 2012. In 2013, he was convicted of assault occasioning actual bodily harm and armed with a dangerous weapon for which he was imprisoned for two months. In 2014, he was convicted of assault with intent to rob and sentenced to one year and ten months imprisonment. According to his PSR, he was released from prison in January 2016 only five months prior to this incident. Tupuola has a history of violent offending.
9. In terms of Tupuola’s February 2014 offending, it was similar to here. He was intoxicated, again having drunk “Russian Vodka”. With a co-offender, he then assaulted their victim. Tupuola’s 2014 PSR confirmed through counsel relevantly stated:

“He (Tupuola) reported that their drinking session started around 9pm and finished around 5am. They drank 2 large Russian vodka and after their drinking session at around 5am, they left their drinking spot and head towards Ah Liki where they met up with the victim who was heading to work...they asked the victim if they could use his car to drive them to a shop to purchase them more alcohol however the victim refused as he was heading to work and with the victim telling them no, he felt irritated and then punched the victim and then [his co-offender] helped him beat him up.”

10. The 2014 PSR concluded “PJ’s involvement in this matter depicts him as dangerous drinker who picks trouble when he is intoxicated...” The accused also expressed remorse for that offending as he does here.

The Accused – Max Alefosio

11. Alefosio is 23 years of age. He is the 3rd of 4 children and completed school to year 12. He found employment at Ah Liki Wholesale where he earned $120.00 per week. He was terminated from his employment due to this case. His father passed away during the course of this trial. He told Probation Service that his focus is now on looking after his mother. She told the Probation Service that she was shocked with her son’s involvement in this matter. Father Petelo Pa’u provided a reference speaking of Alefosio’s remorse and the positive changes observed in him since this occurred.

The Victim

12. The deceased was 44 years of age, a much loved husband and father to four children aged 8, 6, 4 and 1. According to the VIR, he was the main financial provider for his wife and children as well as for his parents. His death has had a significant impact on his wife and their children. They have moved back to Savaii and she now struggles to provide for the children.
13. The VIR states the deceased’s funeral expenses amounted to $30,000.00. The PSR states that an ifoga was presented on behalf of both accused and accepted by the deceased’s family. Cash and goods to the total value of over $15,000.00 was presented.

Aggravating and Mitigating Factors

14. The loss of life is not an aggravating factor in respect of this offending. That is an element of the offence of manslaughter (see: Police v Lelei [2010] WSSC 101 (24 September 2010). The aggravating features in respect of this offending is the number of blunt force trauma inflicted on the deceased, the assault involved stomping and kicking targeting his face and head and the deceased being in a vulnerable position on the ground defenceless. Prosecution has submitted as an aggravating factor the fact that the accused did not render assistance or seek help for the victim. While it may be an aggravating factor in some cases, it is not an aggravating factor of this case. Other people were approaching both accused following the beating of the deceased and there is evidence that the accused were told to leave.
15. Counsel for Tupuola asked the Court to take into account provocation as a mitigating factor. The defence case at trial did not contend provocation and I do not consider provocation to apply in this case. The act of both accused’ was of retribution. That the deceased initiated the original violence is nevertheless relevant in sentencing in this case and I will discount for that factor, accepted by prosecution as appropriate.
16. In respect of Alefosio, I accept that he is remorseful as stated by his mother, his priest and as stated in the PSR. I also take into account the ifoga presented to the family of the deceased last year, his prior good character and personal circumstances including his age.
17. In respect of Tupuola, an aggravating feature personal to him is his prior convictions for violent offending. In mitigation, I take into account the ifoga that was presented and I will give some credit for remorse. I note that in his 2014 PSR, he also expressed remorse yet 5 months later, re-offended in circumstances similar to those in 2014. The credit for his remorse will be reduced given that it is only stated in the PSR yet not reflected in any other reference provided in support of him for sentencing.

Discussion

18. This is yet another case of alcohol fueled violence caused by vodka described by His Honour Nelson J in Police v Tauleo'o [2011] WSSC 160 (5 December 2011) as “the cheap jet-fuel variety freely sold in stores in this country.” In this case, like so many others, it turned to violence with a tragic end. Over the years, the Courts have expressed serious concern with this type of alcohol and its link to violent offending in our community (See for example: Police v Tauleo'o (supra); Police v Aukuso [2011] WSSC 149 (3 October 2011); Police v Mase [2010] WSSC 138; Police v Pita [2012] WSSC 19 (6 February 2012); Police v Timoteo [2011] WSSC 65 (21 March 2011)).
19. In Police v Mase [2010] WSSC 138 (12 July 2010) His Honour Nelson J stated:

“This is also a case of manslaughter and again involves alcohol as a contributing factor to a fatal incident. This is something that is all too common a factor in violent offending in our community because people do things when they are drunk that they normally would not do. ... I am bound to say that having sat on the bench for a number of years I have witnessed many offences coming before the courts, offences involving fatalities as well as non-fatalities involving the consumption of alcohol...And in the majority of cases it is not really beer that is involved but spirits and the common commodity that is present in these sort of offences are the large plastic bottles of spirits like vodka which are being sold very cheaply in our community.... The judges see all the time the effects of out of control drinking of such cheap liquor...”

20. In Police v Tauleo’o (supra), His Honour Nelson J further stated:

“This is not the first case that has come before the courts of this country involving alcohol related offending in particular alcohol of this variety. The files of this court and the District Court contain many cases of criminal offending where the consumption of alcohol of this kind has played a significant role. And they are full of calls by the Judges of both courts for some sort of attention to be paid to this issue with a view to implementing significant reform...”

21. In Police v Faamanu [2013] WSSC 90 (24 December 2013), His Honour Sapolu CJ stated, more generally in terms of alcohol offending:

“This is another alcohol related offending. So many of the cases which involve violence or the use of force that had previously been within the jurisdiction of the District Court but are now within the jurisdiction of this Court since the enactment of the Crimes Act 2013 also involve the consumption of alcohol. This has become of alarming concern to this Court.”

22. In Police v Pelepesite [2015] WSSC 202 (17 November 2015), Her Honour Tuatagaloa J stated:

“The Court note that a lot of the assaults happened where alcohol is always involvpecially amly amongst males between the ages of mid-20’s to late 30’s or early 40’s. There is seriously a need to address this issue.”

23. I wish to echo what the Honourable Chief Justice and Justices of the Supreme Court have earlier said. It reflects my own earlier experience as a lawyer and now as a judicial officer. The cheap over the counter locally produced vodka that His Honour Nelson J has referred to as of the ‘cheap jet fuel variety’ is having a significant social, economic and human impact on our community which far too often ends in tragedy. If this issue is not dealt with in the draft Alcohol Control Bill, I also urge the appropriate authorities to include the review and reform of the regulatory framework around the ready availability and perhaps the alcohol content of this type of alcohol to address this problem.
24. Now Tupuola and Alefosio, any violent offending in our community is never acceptable and will always be punished appropriately by our Courts. Such acts are never acts of bravery or courage but of shameful cowardice. Your actions on this night was the act of two cowards. Together, you beat a vulnerable defenceless man by stomping and kicking his face as he lay on that side road that night. For you Tupuola, that you carried out such an act after being released from prison only 5 months earlier for another assault with a co-offencer involving alcohol shows you learnt nothing from your two earlier terms of imprisonment. You are a particular danger to our community.
25. In terms of your offending, you both not only caused the death of Misa Vailigi but you have also taken from his wife a loving husband and from his children a devoted and loving father. Your actions will have lifelong implications for his family. That fact should weigh heavily on you both for the rest of your lives.
26. Now, sentencing for manslaughter is often a difficult task and no sentence this Court can hand down will bring the deceased back to life or make up for his death caused by the two of you and your cowardly actions. I also recognize that the sentences imposed for the of manslaunslaughter has varied from lengthy terms of imprisonment to non custodial sentences. As the Court of Appeal in Nepttorney General (supra) at paragraph 37 stated: “They reflect the diverse circumsrcumstances in causing death which make manslaughter a crime which varies widely in culpability and sanction.” Citing from the words of Street CJ in Whithers v R [1925] NSWStRp 38; (1925) 25 SR (NSW) 382 at 397, the Court of Appeal also noted:

"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."

27. The loss of a human life is always a very serious matter and that is why manslaughter is always a serious crime. The Court has never lost sight of the gravity of the crime of manslaughter. Sentencing however must be related to the circumstances of the particular offence and the offender and in a manslaughter case, the loss of life is unintentional.
28. Your actions were a serious assault targeting the deceased’s head as he was vulnerable and defenceless on the ground. A non-custodial sentence as an option submitted by counsel for Alefosio is not appropriate. Your actions and the nature of your assault leading to the deceased’s death warrant a custodial sentence to condemn your cowardly actions, to promote in you a sense of responsibility for and as an acknowledgment of the harm you have caused and as a deterrent to yourselves and others for this type of offending. People must understand that if you offend in this way, you must be prepared for imprisonment. In this regard, I refer to the guidelines in Nepa where the Court concluded:

“...In ordinary cases involving a group and an unprovoked attack resulting in death, the commencing point ought to be a sentence of 10 to 12 years, for the crime of manslaughter.”

29. I however also bear in mind what the Court of Appeal also said in Attorney General v Godinet [2011] WSCA 6 (26 August 2011) where the Court of Appeal added:

“[16] The question is whether there is any reason for departing from the Nepa guidelines in the present case. Guidelines of this kind are never intended as a straitjacket to preclude the application of flexible justice to the individual case. However if a case appears to be of a general type to which the guidelines were intended to apply, there should be some articulated reason for departing from them.”

30. In sentencing you both, I sentence you together and treat you alike because the differences in your culpability are minor. You both assaulted the deceased on the ground and were each a party to the serious assault inflicted by the other. It was a joint enterprise. In terms of a start point for sentence however, I reduce that from 10 years to 8 years because the deceased initiated and was the original source of the violence. In setting the 8 year sentence start point, I bear in mind that the violence and actions of the deceased against the accused in Nepa was far more serious than here leading there to a 6½ year start point for sentence in that case. There was also no weapon involved here with the deceased actions for instance.
31. Tupuola, I uplift your sentence by 16 months for your prior convictions. From that, I deduct 12 months for the ifoga and 6 months for your remorse reflected in the PSR.
32. For the accused Max Alefosio, I deduct 12 months for the ifoga. For your remorse, prior good character and your personal circumstances, I deduct 18 months.

The penalty

33. For the accused PJ Tupuola, you are convicted and sentenced to 7 years 10 months imprisonment.
34. For the accused Max Alefosio, you are convicted and sentenced to 5 years 6 months imprisonment.

JUSTICE LEIATAUALESA DARYL CLARKE