Police v Tuaoi [2019] WSSC 38 (18 April 2019)

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Case name:	Police v Sofi Uale Tuaoi

Citation:	[2019] WSSC 38

Decision date:	18 April 2019

Parties:	POLICE v SOFI UALE TUAOI male of Laulii and Foailuga.

Sentencing date(s):	18 April 2019

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- On the charge of manslaughter, you are convicted and sentenced on the charge of manslaughter to 5 years and 3 months imprisonment, less time remanded in custody. - On the remaining two charges, you are convicted and sentenced to 2 months imprisonment each, to be served concurrently to the manslaughter sentence.
Representation:	F Ioane for Prosecution C Vaai for the Accused

Catchwords:	armed with a dangerous weapon – aggravating factors – mitigating features – manslaughter

Words and phrases:	due to the deceased being a security guard, the prevalence of alcohol fueled violent offending within the community and this type of senseless violence that often accompanies, deceased was a security guard; used a beer bottle; accused heavily intoxicated the irresponsible consumption of alcohol which in this case resulted in death.
Legislation cited:

Cases cited:	(Beard v Police (HC, Christchurch AP 127/90, 1 June 1990, Williamson J) [1990] BCL 1054; Stevens v Police (HC, Auckland AP 143/93, 16 July 1993, Blanchard J). Police v Aleki Ofoia [2008] WSSC 10 (10 March 2008), Sapolu CJ in Police v Aisea [2006] WSSC 47 (30 August 2006), Police v Aisea, Sapolu CJ and Police v Ilalio Tautunu [2006] WSSC 31.

Summary of decision:

[1] Sofi Tuaoi, you appear for sentence on one charge of manslaughter, one charge of being armed with a dangerous weapon and one charge of throwing an object to the danger of a person.

[2] According to the Amended Summary of Facts accepted by you through counsel dated 19 March 2019, on Saturday 26^th May 2018 at between 10pm and 11pm, you were in the area outside of the Seana Club at Sogi. You were heavily intoxicated. You told the Probation Service that you had been drinking a large bottle of Boom Vodka with friends earlier outside the RSA Night Club and after drinking that bottle, walked to the Seana Night Club.

[3] At the Seana Night Club, you tried to enter but were refused entry at the front door by the deceased who is a bouncer at the Seana Night Club due to your state of intoxication. You became upset and insisted on entry. As a result, the deceased slapped you with an open hand causing you to fall down.

[4] The deceased then continued to pick up empty bottles outside the night club while you were standing near the Seana Night Club sign at the roadside. As the deceased was placing bottles into a box, you walked to the deceased, stood at close range and threw a beer bottle at him striking his head. You then ran off.

[5] In his submissions on your behalf, your counsel says that you were caught by staff of the Seana Night Club and beaten suffering facial injuries for which you were also hospitalised. This is not disputed by prosecution.

[6] The deceased following your assault was also taken to hospital due to the serious injury sustained on his head and he was given medication and released at some point.

[7] After the incident, the deceased complained constantly to his wife of severe headaches.

[8] On the Friday 1^st June 2018, the deceased was again taken to hospital and was pronounced dead on arrival. A post mortem examination was conducted and the cause of death was due to an intracerebral haemorrhage.

[9] You are a 22 year old male of Lauli’i and Foailuga. You are single and working on your family plantation. You are the youngest of 6 children. You completed school to year 8.

[10] No references have been provided in support of your character. You are however a first offender. You expressed to the Probation Service “a great deal of remorse and said to be very regretful in relation to the incident.” After this incident however and when you were on bail for this matter, you committed further offending for burglary and theft for which you have entered a guilty plea and will also be sentenced today.

[11] The deceased was a 41 year old male of Apia. He was married and has 8 children. He was employed at the Seana Night Club as a security guard.

[12] A VIR was provided by the deceased’s wife. She says that she and her children have suffered more physical illnesses since her husband died. Her school age children that her husband use to take to school no longer wish to attend school. They miss their father and she misses her husband. The children range in age from 2 to 15 years of age.

[14] Your counsel submits that by virtue of provocation, the start point for sentence ought to be reduced. According to the Summary of Facts, you were slapped by the deceased causing you to fall down when you insisted to be allowed into the Seana Night Club and became angry.

[15] I will allow for a deduction from the start point for the violence that evening being initiated by the deceased. It is however a low level deduction because (a) the deceased was responding to you becoming angry and insisting on entry; and (b) your response to the deceased was wholly out of proportion to what the deceased had done.

[16] In respect of mitigating factors personal to you, I do not accept that you are genuinely remorseful for your offending. When on bail for this offending, you committed further offending for which you are now also to be sentenced today. Had you been truly remorseful for this offending, you would not have re-offended whilst on bail. Your stated remorse to the probation service are hollow words.

[17] In mitigation, I do however take on board your prior good character and your guilty plea on the reduction of the charge to manslaughter on the hearing date. I also take into account in mitigation the retribution taken out on you by the deceased’s work colleagues assaulting you (Beard v Police (HC, Christchurch AP 127/90, 1 June 1990, Williamson J) [1990] BCL 1054; Stevens v Police (HC, Auckland AP 143/93, 16 July 1993, Blanchard J).

[18] Sofi, you appear for sentence on the very serious charge of manslaughter following the death of the deceased at the Seana Night Club. You took a beer bottle, walked to him and standing at close range, you threw it at the deceased striking his head and causing serious injury from which he later died. You did not intend to kill the deceased but there is no question that you intended to cause him harm.

[19] Prosecution seeks an imprisonment term with a 3 year start point of imprisonment referring to Police v Aleki Ofoia [2008] WSSC 10 (10 March 2008), a start point accepted by your counsel.

[20] I have considered Police v Ofoia (op. cit) and find the circumstances of that offending quite different to your case. That was a domestic assault between siblings in their home involving violence initiated by the deceased who had earlier thrown a plate of food, was swearing and threatening. As part of the altercation, the deceased had bent forward and moved towards the accused as if to fight the accused who at the time was moving backwards. The accused stumbled on a piece of timber, grabbed the timber and struck the deceased. It was very different.

[21] In this case, I am of the clear view that due to the deceased being a security guard, the prevalence of alcohol fuelled violent offending within the community and this type of senseless violence that often accompanies the irresponsible consumption of alcohol which in this case resulted in death, a 3 year start point for sentence is wholly and manifestly inadequate.

[22] A life has been lost. It was entirely avoidable and prevalence of this type of senseless alcohol fueled violence in the community calls for a deterrent sentence, particularly given your actions killed a security guard in the course of his work and whose role was to protect the public. I am supported in this view by the sentencing decision of Sapolu CJ in Police v Aisea [2006] WSSC 47 (30 August 2006), also involving the death of a security guard from a stabbing injury whilst he worked where the accused was sentenced to 5 ½ years imprisonment. There, Sapolu CJ stated:

“Likewise, fatal or life-threatening attacks on security officers who are on duty to protect the safety and security of a nightclub and of the members of the public who go to it must also be severely deterred. The safety of security guards for Clubs in Apia is an important consideration and the Court may impose more severe sentences in the future than in this case.”

[23] In Police v Aisea, the Court does not set out the start point adopted but given the deduction for the accused’s guilty plea and first offender status, the start point was likely to have been in the vicinity of 8 years imprisonment. I however also note the sentiments of Sapolu CJ in Police v Aisea where he stated in terms of manslaughter sentencing generally:

“In saying all of this, I am mindful that in the last seven years, the longest custodial sentence imposed by a Samoan Court for manslaughter was 5 years imprisonment: see Police v Ilalio Tautunu [2006] WSSC 31. That range of sentences would have to be reviewed soon.” (emphasis added)

[24] Since 2006, a number of manslaughter sentences have been greater than 5 years imprisonment. I however agree with the sentiments of Sapolu CJ for the need for review of sentencing for manslaughter, in particularly for those cases involving senseless alcohol fueled violence given its prevalence in the community.

[25] As appropriately accepted by your counsel, the sentencing decision of most similarity to your case is that of Police v Aisea with an end sentence of 5 ½ years imprisonment. Other cases that I have been referred are different.

[26] I also accept that the aggravating features of your offending is not as serious as Police v Aisea. I also accept that the violence was initiated by the deceased when he slapped you (Nepa v Attorney General [2010] WSCA 1 (7 May 2010); Police v Tupuola [2017] WSSC 60 (12 June 2017)). His actions however were directly in response to you becoming angry and insisting to enter the nightclub, a venue that he was employed to protect.

[27] I do not accept your counsel’s submission that a mitigating factor is that the hospital released the deceased from hospital and that there was some form of negligence on their part leading to the deceased’s death.

[28] As I have said, a deterrent sentence is called for. It is to be made clear that violence causing the death of a security guard killed in the course of carrying out their duties is to be condemned and the perpetrator severely punished. I will adopt 7½ years start point for sentence to reflect the violence initiated by the deceased and the aggravating and mitigating factors of your offending. I deduct 6 months for your prior good character despite the absence of any references in support of your character, 6 months for the retribution taken out on you and 15 months for your guilty plea on the hearing date leaving 5 years and 3 months imprisonment.

[29] This sentencing decision has in material part followed Police v Aisea (op. cit). I however agree with Sapolu CJ that in terms of sentencing for manslaughter, particularly in cases involving senseless alcohol fueled violence, there is need for review in the near future given the prevalence of this type of violence in the community.

[30] On the charge of manslaughter, you are convicted and sentenced on the charge of manslaughter to 5 years and 3 months imprisonment, less time remanded in custody.

[31] On the remaining two charges, you are convicted and sentenced to 2 months imprisonment each, to be served concurrently to the manslaughter sentence.

Supreme Court of Samoa

Police v Tuaoi [2019] WSSC 38 (18 April 2019)