Police v Luutiga [2020] WSSC 70 (4 November 2020)

SUPREME COURT OF SAMOA
Police v Luutiga [2020] WSSC 70

Case name:	Police v Luutiga
Citation:	[2020] WSSC 70
Decision date:	04 November 2020
Parties:	POLICE v PAULO LUUTIGA also known as ISAIA LUUTIGA or LUUTIGA TALAPUSI male of Leualesi Leauvaa-uta. (First Defendant) AND PALEMIA TOGIAI also known as PALEMIA TOGIAI SIONE male of Gautavai and Leualesi Leauvaa-uta.
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- On the charge of manslaughter, you will be convicted and sentenced to five (5) years in prison, remand in custody time to be deducted. - On the charge of armed with a dangerous weapon namely beer bottles convicted on your guilty pleas and sentenced to six (6) months in prison concurrent terms.
Representation:	R Titi for prosecution K Koria for first defendant P Chang for second defendant
Catchwords:	- armed with a dangerous weapon – assault –coronial finding – manslaughter – postmortem examination – unlawful act
Words and phrases:
Legislation cited:
Cases cited:	Lealaiauloto v Attorney General [2015] WSCA 2 Nepa v Attorney General [2010] WSCA 1 Police v Tauleo’o [2011] WSSC 160 Police v Tupuola [2017] WSSC 60
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PAULO LUUTIGA also known as ISAIA LUUTIGA or LUUTIGA TALAPUSI male of Leualesi Leauvaa-uta.
First Defendant

AND:

PALEMIA TOGIAI also known as PALEMIA TOGIAI SIONE male of Gautavai and Leualesi Leauvaa-uta.
Second Defendant

Counsel:
R Titi for prosecution
K Koria for first defendant
P Chang for second defendant

Sentence: 04 November2020

S E N T E N C E

1. Defendants have pleaded guilty to a charge that at Leauvaa-uta on 12 May 2019 they did by an unlawful act namely assault cause the death of Michael Mikaele a male of Leauvaa thereby committing the crime of manslaughter. They also pleaded guilty that at the same place same date they were armed with a dangerous weapon namely beer bottles not being so armed for lawful purposes.
2. As this court also sits as a Coroners Court I issue the Coronial Finding that the deceased Michael Mikaele a male 31 years of age died at Leauvaa-uta on 12 May 2019 as a result of the defendants assault. Death was primarily caused by injuries mainly to the left side of the face and head with an underlying fracture of the bone above the left eye socket. The forensic pathologist at the postmortem examination also found bleeding over the surface of the brain all these being injuries consistent with blows from a blunt object. The examination further revealed multiple abrasions to the deceaseds chin, nose, arm, chest and legs consistent with a beating.
3. As Coroner I also further certify that alcohol played a significant part in the death of the deceased. To the extent that some comments must again be made about the issue of alcohol.
4. Alot of measures are being taken by the present Government to prevent deaths from the Covid pandemic. These have been very successful and to date no one has died from Covid in our country. But every year many people die from alcohol related offending whether it be through beatings or motor vehicle accidents and very little seems to be seriously done to address the problem. This despite repeated warnings from the judges of the country about the dangers of alcohol abuse and easy availability of alcohol particularly what I call the jet-fuel variety in villages and stores. See for example Police v Tauleo’o [2011] WSSC 160 and also the very instructive judgment of Justice Clarke in Police v Tupuola [2017] WSSC 60 a case that involved two young intoxicated defendants beating another man to death outside a nightclub.
5. It is not the function of this court to advise potential solutions to the problem. But it is undoubtedly a function of the courts of justice to draw attention to alarming trends of this nature and to point out that an alcohol pandemic has arrived, has been on our shores for a long time and has sadly become a part of the fabric of everyday life in Samoa. Sadly, many village councils are failing in their duty to control and police the distribution and consumption of alcohol within their communities. And in the Apia urban area it is a bit of a free-for-all. Until some concrete measures are implemented tragic incidents like what happened in the present case will continue to unfold before the courts.
6. For the present case the Police Amended Summary of Facts accepted by counsel for both Paulo and Palemia says Paulo is a 22-year-old male of Leualesi Leauvaa-uta and Tuanai single and unemployed. The co-defendant is Palemia also a 22-year-old male of the same village, single and works as a cashier in one of the local businesses in town. As noted the deceased is a 31-year-old male of their village married with three children and at the time of his death was living with his wife at his wifes family. He was employed at one of the local businesses in town as well.
7. Around 8:00 pm on the night of Saturday 11 May 2019 the defendants told their mother they were going to the shop to buy some phone credit. Instead they went and bought bottles of beer and hid it at the back of their land. Later that night they retrieved their beer and started drinking.
8. Carrying some of the beer bottles they then walked on the road on their way to watch the Sunday School practice for mothers day festivities. They met the deceased standing in the middle of the road also holding a bottle of beer. The deceased asked “uso o fea a lua o iai?” and “e iai seisi o oulua e ulavale?” The defendants did not respond but continued to walk away. However, the deceased persisted and called out more confrontational remarks to them. Including accusing them of being afraid and being cowards.
9. The defendants then made the tragic decision to turn back. Paulo struck the deceased with the beer bottle in his face causing the deceased to stumble and Palemia threw his bottle at the deceaseds head and face. This caused the deceased to fall on the ground and while on the ground the defendants kicked his body, head and facial areas. While the assault was in progress one of the defendants brothers Atapana intervened and stopped the assault. At this time the deceased was not moving but was lying face upwards and snoring. Obviously unconscious. The defendants and Atapana then left the area leaving the deceased lying on the road.
10. Sometime later that night the defendants returned to the scene and found the deceased lying where they had left him. With the help of another villager they lifted and carried him to a road in front of the house of a relative of the deceased. The summary says the deceased never woke up but was heard to be still snoring.
11. Around 7:00 am the next morning the deceased was discovered by another villager lying where the defendants had left him and was observed to be motionless and not breathing. He was taken to hospital where he was pronounced dead on arrival. The result of these unfortunate events is now these two young men stand before the court to receive punishment for their actions.
12. A penalty that must send to them a clear message that what they did is totally unacceptable. A message that must also be conveyed to other young men. One of the messages is if you cannot drink ava palagi or beer and act responsibly best you do not drink at all.
13. It is clear from the Amended Summary that these defendants were in an intoxicated state. And in that condition they ganged up on the deceased and after beating him left him on the road to die. The Summary says they took him to the road in front of the house of a relative but took no steps to obtain help. Or to alert that family. The end result was it was someone else who found the deceased where they left him at 7:00 o’clock the next morning. By which time he was dead.
14. It is very callous and uncaring kind of behaviour and I want you gentlemen to listen to what the deceaseds family say in the Victim Impact Reports. Firstly, from the Victim Impact Report of the father:

“Mo le silafia o le ifoga sa oo atu a aiga o latou nei o loo molia e lei o atu ai latou sa fa’atinoina le solitulafono, peitai o le manatu lava i le va nonofo a matua i matua ma aiga potopoto lea sa faigofie ai ona talia le oo atu e tusa ai ma le ifoga sa faatino.

E faailoa atu foi, o lea sa tuuina atu ma le tino i tupe e $10,000.00 tala, faatasi ai ma nisi o faaaloaloga e ala atu i pusa moa lea sa faaoo atu i le aso sa faatino ai le ifoga, o lea foi sa fesoasoani le tino i tupe sa faaoo atu mo le totogiina o nisi o pili ao taofia ai le atalii i le Falemai mo le talia ai o togafitiga faapitoa.

Ae le mafai le mafai e nei tupe sa tuuina atu one toe sui a’i le ola o le atalii ua maliu pe tea ese ai le tigā ma le mafatia o lagona i le soligatulafono sa latou faatino ma faaoo ai le maliu i le atalii, ma le faaaloalo faafetai.”

15. And from the wife of the deceaseds Victim Impact Report I read the following:

“E le faigofie ma e le galo ia te a’u ma la’u fanau le tulaga sa latou faatino i lo’u toalua, pei o le ala lea e mafatia ai pea le mafaufau e le mafai foi ona faamatala le tigā ma le mafatiaga ua ou nofo ma a’u talu ai lenei mataupu, ma le faaaloalo faafetai.”

16. Clearly this is an indication of the pain and grief that the two of you inflicted. It is now time for you to be held accountable for your crime.
17. I deal firstly with the offence of manslaughter which is the most serious charge. The maximum penalty for manslaughter is life in prison. But all counsel agree as do I that the approach to sentencing for cases such as this is laid down in the Court of Appeal decision in Nepa v Attorney General [2010] WSCA 1 where the court said:

“The failure of the appellants to attend to the stricken man and arrange for medical assistance is relevant to sentencing. 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.”

18. Considering all the circumstances of your matter in particular that unlike Nepa which was a group of four this involves a “group” of two people, coupled with the fact that weapons viz beer bottles were used by you in this attack, I take as a starting point for sentence the lower end of the Nepa scale a period of 10 years in prison. That is the sentence you should receive.
19. However, there are a number of mitigating factors in your favour many of which have been referred to by your counsels and allowance must be made for those. First and foremost is a deduction for the provocation in this case consisting of the deceaseds numerous statements challenging the two of you when he called out to you. For that I deduct twelve (12) months, leaves a balance of nine (9) years in prison.
20. Pre-sentence reports on both of you from the Probation Service speak of your good tautua to your aiga, nuu and ekalesia and there are many character references in support of you both. It is also clear you are first offenders. The usual deduction of six (6) months for these matters will be applied.
21. Also confirmed by the Victim Impact Reports and the pre-sentence reports is that the required ifoga as per our tu and aganuu fa’a-Samoa has been carried out. That is totally appropriate and a further six (6) months deduction to reflect those matters will be applied.
22. It has also been confirmed a second ifoga was carried out to the village as your penalty. This again is also important and appropriate a further six (6) months will be deducted for that.
23. Your counsel have also argued a deduction should be made for your young age and the prospects of rehabilitation. There is a difference in your ages in the Amended Summary of Facts and the reports of the Probation Service in this matter which gives your ages as higher than 22. But for the purposes of sentencing I will accept what counsel have agreed to that you are both 22 years of age as noted in the Police Summary of Facts. I would ask the Probation Service to note that for cases where age is a live issue it is important to attach the birth certificate or confirmation of birth date of a defendant.
24. So today I will accept your ages as 22. You are both young men who just made a very bad choice and a serious mistake resulting in the loss of someones life. To reflect this fact, I will allow a deduction of a further six (6) months. Adding up all these deductions comes to three (3) years, from a ten (10) year start point leaves a seven (7) year balance.
25. A final deduction to be made for your sentence is for your guilty pleas entered once the Police finalised the charges and withdrew the initial charge of murder and the charge against Atapana. Your guilty pleas are important gentlemen because it shows your true remorse and it has also saved the courts precious time and limited resources. For your guilty pleas I will accordingly deduct two (2) years from your balance of sentence, leaves five (5) years in prison.
26. A further argument was raised by one of the defence counsels I am sure it was you Ms Chang. It was for a further deduction based on Lealaiauloto v Attorney General [2015] WSCA 2 to reflect the sixteen (16) months or so remand on bail period being the time you spent living away from your village awaiting trial. In answer to that firstly the factual situation here is different to Lealaiauloto. There has been no retrial here and the delays have been occasioned by different factors viz a change in defence counsel of one of the defendants and temporary closure of the courts due to firstly the measles epidemic and subsequently the Covid State of Emergency. Lealaiauloto is a case specific to its facts and I accordingly decline that part of counsels submission.
27. There are no further mitigating factors Paulo and Palemia to be taken account of. On the charge of manslaughter you will be convicted and sentenced to five (5) years in prison, remand in custody time to be deducted.
28. On the charge of armed with a dangerous weapon namely beer bottles convicted on your guilty pleas and sentenced to six (6) months in prison concurrent terms.
29. Ia pei ona fa’ailoa atu e le Resitara o lona uiga o le fa’aiuga o le mataupu lenei Paulo ma Palemia e lima (5) tausaga e tatau ona lua nofo taofia ai i le toese ae tatau ona toesea ia taimi na lua nofo taofia ai e fa’atalitali le fa’aiuga o le Fa’amasinoga.

JUSTICE NELSON