Police v Lutau [2020] WSSC 97 (8 September 2020)

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Case name:	Police v Lutau

Citation:	[2020] WSSC 97

Decision date:	8 September 2020

Parties:	POLICE v SOSENE LIONA LUTAU male of Lalomanu Aleipata.

Hearing date(s):

File number(s):	S1474/2019

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	Justice Fepulea’i Ameperosa Roma

On appeal from:

Order:	- On the one (1) charge of manslaughter, you are convicted and sentenced to 2 years and 4 months’ imprisonment.

Representation:	F. Ioane for Prosecution P. Chang for Accused

Catchwords:	aggravating factors –assault – guilty plea - mitigating factors –– manslaughter, assault, violence in a domestic relationship – starting point for sentence – sentence

Words and phrases:

Legislation cited:	Crimes Act 2013 ss. 102 and 108

Cases cited:	Police v. PS [2018] WSSC 63 (25 April 2018), Police v. Tutogi [2007] WSSC 6 (15 February 2007) Police v. Taimi Peleuaga (1999 unreported), Police v. Howard Maumasi [1999] Police v. Fiva [2008]

Summary of decision:

[1] You appear this afternoon for sentence on one (1) charge of manslaughter contrary to ss102 and 108, Crimes Act 2013 which carries a maximum penalty of life imprisonment. The record shows that on 8 June 2020 through your Counsel, you vacated your earlier not guilty plea and substituted a guilty plea to the charge.

[2] From the prosecution summary which you accept, the offending took place in the afternoon of 24 July 2019. The deceased was your wife.

[3] On the afternoon of the incident, your children had arrived home from school and found you and the deceased arguing. One of your sons then assisted his mother at the back of the house where she was peeling bananas. Meanwhile, you were walking in and out of the house and telling the deceased to stop complaining. She replied that she was not before you approached and slapped her on the cheek causing her to fall on a rock strewn terrain. You walked back inside the house leaving her on the ground. She was unconscious at that point.

[4] Less than a minute, you came back outside and found her still on the ground. You rushed over and tried to revive her. You called out to your children to get ‘ti’ and water and proceeded to massage her head. By that time, she was snoring with blood coming from her mouth.

[5] Your children sought the neighbours’ assistance for transport and she was taken to hospital where she remained for 4 days before she passed died.

[6] From the post mortem report, the deceased’s injuries included signs of blunt force trauma to the head with a subdural hematoma and a bruise at the back of the head; bruising to the right arm; bruising to the left arm and bruising to the front and back of the torso.

[7] The cause of death was a traumatic subdural hematoma caused by trauma to the head.

[8] In the pre sentence report, you admit having slapped the deceased because she was complaining when you told her to prepare food to await the children’s return from school. You did not pay her attention but were shocked when you came back minutes later and found her still lying on the ground. You picked her up and instructed the children to call for help. She remained unconscious when she was taken to hospital. Whilst in custody pending police charges, you were informed by police that your wife had died.

[9] You are a 49 year old male of Lalomanu, Aleipata. The victim is your wife and you are now a widower as a result of your offending. You have 4 children aged between 11 and 18 years, the eldest currently studying at NUS. You have always worked the land and fished to support your family. You have been its breadwinner and Counsel says that you have been under financial pressure to provide for them.

[10] There is also material before me which suggest that since your offending, the pressure has been overwhelming that you have also tried to take your own life. As you will now appreciate, suicide is never the answer to any problem, no matter how difficult they seem. In your case, with the help of your family and your children’s forgiveness you are more determined to provide and remain strong for them.

[11] I have read the testimonials by 3 of your children who speak of your commitment and dedication to your family by ensuring that their school fees are paid and there is always food on the table. They speak of how you have apologised and sought their forgiveness. They fear the impact of a custodial sentence on your already broken family. I accept that you are remorseful and determined for your children to do better.

[12] I have also read the testimonials by Rev. Etisone Gafa and the pulenuu Seuala Patone Seuala. They speak of your hard work in the village and church and how you are keen to help others. They express shock at what happened and observe regret and remorse on your part for your offending.

[13] The pre sentence report also confirms that an ifoga had taken place before your wife’s family where $10,000.00 and 4 large fine mats were presented. You were also fined $4,000.00 by the village council and presented 1 large cattle beast and 40 boxes of canned fish.

[14] At first, the prosecution summary referred to you as a first offender. You confirmed however when raised your previous conviction for assaulting your wife in June 2017 as referred to in the pre sentence report. Only then did prosecution seek to make inquiries and update police record to reflect your conviction that was ordered by the Court 3 years ago.

[15] At this point, I want to say that it has now become a common expectation that the Probation Service’s record on offenders’ history and previous convictions is more accurate and reliable than that of prosecution and police. In the past and more recently in particular, there have been many cases where but for the record of the Probation Service and honesty of the accused, the Court would have proceeded to sentence them as first offenders. This is one such case. In this day and age of technology, resources and better means of communication, the only explanation for how this would occur is because somewhere within police and prosecution, someone is not doing the simplest task of updating its system. It is simply unacceptable that an offender’s conviction is not recorded in the system 3 years after he was sentenced, especially for a related offending.

[16] One of the impacts as seen in this case is a major departure from prosecution’s original recommendation for a non custodial sentence after the discovery of your previous conviction.

[18] As offender, an aggravating factor is your previous and related conviction for Common Assault on 19 June 2017 in the Family Violence Court. The victim of that offending was also your wife. The difference now is that your offending has caused her death.

[19] Compared to many other cases of manslaughter, the single slap in your case is a mitigating feature of your offending.

[21] This is another case of domestic violence with serious consequences. With a previous conviction for assault involving your wife as victim and where you undertook a rehabilitation programme before being handed a suspended sentence 3 years ago, this was bound to happen if your behaviour continued. Sadly, it did. The saddest thing however is the damage it has caused to your family, including the loss of your wife’s life and the impact on you and your 4 children, some of whom were present when the incident took place.

[22] As Nelson, J says of violence in a domestic relationship in Police v. PS [2018] WSSC 63 (25 April 2018), a case of attempted murder:

[23] Coming back to your case, the maximum sentence for manslaughter is an imprisonment term for life. The sentences imposed by the Court have varied from non – custodial sentences of supervision to lengthy custodial sentences depending on the facts and circumstances of each case. In Police v. Tutogi [2007] WSSC 6 (15 February 2007) Sapolu, CJ in reference to Police v. Taimi Peleuaga (1999 unreported) and Police v. Howard Maumasi [1999] WSCA 1 states:

“Both cases also demonstrate that deterrence is an important consideration when passing sentence in this type of case. However, the truth of the matter is that the appropriate sentence to be imposed depends on the ultimate analysis on the facts of each case. This is particularly more so with the crime of manslaughter which may arise from a wide range of varying circumstances and attracts a wide range of penalties.”

[24] In Police v. Fiva [2008] WSSC 89, Sapolu, CJ refers to a number of previous sentencing decisions and states:

“Those cases show that the sentences to be imposed in manslaughter 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 a starting point which is applicable across the board to all cases of manslaughter.”

[25] In its Amended Memorandum for Sentencing, prosecution seeks a custodial sentence with a starting point of 5 and a ½ years. They rely in particular on Police v. Taumaloto [2017] WSSC 160, where the accused was sentenced for the manslaughter of his wife. During an argument, he slapped his wife once causing her to fall down the concrete steps and sustain abrasions to her body and head injuries which led to her death.

[26] Prosecution submits that similar to your case, Taumaloto was a case of domestic violence involving an accused husband and a wife as victim. They also refer to other sentencing decisions: Police v. Pili [2005] WSSC 9 (8 August 2005); Police v. Taumafai [2019] WSSC 10 (15 February 2019) and Police v. Amituanai Pesamino Kelemete Osa (9 May 2019) where community based sentences were imposed; and Police v. Vaaulu Alosio Amituana’i (17 October 2011); Police v. Vailopa [2010] WSSC 66 (26 April 2010); Police v. Toe [2008} 17 (28 April 2008) where terms of imprisonment were imposed.

[27] Your Counsel on the other hand submits that this was an unfortunate incident; the level of your culpability in a single slap was at the lowest; you have paid more than the price you should, and that no one including your children should be punished more. She seeks the Court’s leniency in imposing a non – custodial sentence.

[28] Counsel argues that to rely solely on Taumaloto would be to disregard all other sentencing authorities including those referred to in Prosecution’s sentencing memorandum in which non custodial sentences were imposed. On that point, I agree with Counsel.

[29] I have carefully reviewed all the authorities referred to in prosecution’s sentencing memorandum. I accept that it was never your intention to cause the death of your wife; this was an unfortunate incident and that the single slap is at the lowest end of the scale compared to other cases of manslaughter.

[30] But contrary to those other cases, this was an offending within a domestic relationship. It occurred within your home and in the presence of your children. In addition, this is not the first time you have come before the Court charged for an act of violence against your wife and the Court must continue to send out a strong deterrent message against all forms of domestic violence especially where the consequences are significantly serious. The Court cannot also overlook the loss of life and gravity of the charge of manslaughter.

[31] I accept therefore that in your case, a custodial sentence is the appropriate penalty.

[32] Taking into account all the aggravating and mitigating factors including the fact that this is a domestic case of manslaughter, I adopt a 4 years as a starting point. I add 1 year for your previous related conviction. That makes it 5 years or 60 months.

[33] From that term of 5 years or 60 months, I deduct 6 months for the apology and ifoga to your wife’s family and apology to your children. I deduct a further 6 months for the village fine and penalty. I deduct 4 months for your remorse and the steps you have taken to hold your family and children together since the loss of their mother. I deduct a further 4 months for your children’s plea for leniency. From those 4 deductions, a term of 3 years and 4 months remains. I deduct a further 12 months for your guilty plea at the earliest when the charge was reduced to manslaughter, leaving a term of 2 years and 4 months.

[34] On the one (1) charge of manslaughter, you are convicted and sentenced to 2 years and 4 months imprisonment.

Supreme Court of Samoa

Police v Lutau [2020] WSSC 97 (8 September 2020)