Police v TT [2021] WSSC 5 (19 February 2021)

SUPREME COURT OF SAMOA
Police v TT [2021] WSSC 5

Case name:	Police v TT
Citation:	[2021] WSSC 5
Decision date:	19 February 2021
Parties:	POLICE (Prosecution) AND TT male defendant. (Defendant)
Hearing date(s):	-
File number(s):	S1758/20
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of manslaughter, you are accordingly convicted and sentenced to six and a half (6½) years in prison but any time in custody awaiting sentence is to be deducted from that period.
Representation:	F Ioane for prosecution L Su’a-Mailo for defendant
Catchwords:	-plead guilty – permanent suppression order – unlawful act – assault – manslaughter – gravity – aggravating features – Coronial Inquiry
Words and phrases:
Legislation cited:	Sentencing Act 2016 s.8(a)(c) Coroners Act 2017 s. 16(6)
Cases cited:	Nepa v Attorney General [2020] WSCA 1 Police v Amituanai (unreported judgment dated 09 May 2019) Police v Simanu [2007] WSSC 5
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TT male defendant.
Defendant

Counsel:
F Ioane for prosecution
L Su’a-Mailo for defendant

Sentence: 19 February 2021

S E N T E N C E

1. The 62-year-old defendant has pleaded guilty to a charge that on Thursday 29 October 2020 he did by an unlawful act namely assault cause the death of his 14-year-old son. His son died at the Tupua Tamasese Meaole Hospital at Moto’otua on Tuesday 03 November 2020 some five (5) days after the assault. Considering the age of the victim and his relationship to the defendant there will issue a permanent suppression order suppressing publication of the names and details of both parties and this case is to be reported in the law reports as Police v TT.
2. The cause of death of the deceased is said to be a depressed fracture of the right side of the skull bone with associated hemorrhaging or bleeding of the underlying brain tissue and a swelling of the brain. But this cause of death has not been verified as it appears no post-mortem had been carried out despite an order of the Coroners Court in November 2020. With the shocking consequence that the body of this young man is still lying at the morgue at the National Hospital where he has been for the last three and a half (3½) months. That is a completely unacceptable situation.
3. The admitted summary of facts from the Police says that in the evening of 29 October 2020 the defendant was at the back of his house consuming beer. The deceased boy arrived at the house after running an errand for the defendant. The defendant then required the deceased to go and collect some coconuts to feed the pigs. The deceased refused as he had just arrived home and said he was tired.
4. The summary says the defendant again called out to the deceased but the deceased swore at him saying (se’i tulou le mamalu o le aofia) “ufa ia ua ou lelavā fa’akoa fo’i mai kagaka ua ou lelavā”. The defendant heard this and picked up a rock and walked towards the deceased. The deceased saw the defendant approaching and so ran off. The defendant threw the rock which hit the deceased on the head causing him to fall onto the ground. The defendant also picked up a branch/stick and approached the deceased who was on the ground and struck him twice on the back.
5. The defendants daughter saw what was happening and ran over to stop the defendant beating the deceased. Before she reached the deceased the defendant called out to her to bring a bucket of water as the deceased was not moving. The daughter fetched two buckets of water and poured them onto the deceaseds head causing him to wake up. He complained that his head hurt and there was blood flowing down from his head. Deceased was taken inside the family home and later that evening was observed to be vomiting and unable to sleep properly. He also complained to his sister about the pain in the back area of his head where the rock had hit.
6. The following day at 5:00 p.m. he was taken to the Lufilufi District Hospital for treatment where he was hospitalised overnight to monitor his condition. After a doctors examination the next day he was discharged with antibiotics around 11:00 a.m.
7. When the deceased arrived home he was still complaining about pain in the back of his head to his mother. On Sunday 01 November as he went for a shower he fell on the floor unconscious. He was taken to hospital for treatment and was again admitted. The summary goes on to record that on 03 November at around 12:35 a.m. the deceaseds family were informed by the Moto’otua Hospital that he had passed away due to severe head injuries. The matter was reported to the police, defendant was apprehended cautioned and charged with one count of manslaughter.
8. On 22 December 2020 at mentions through his counsel the defendant pleaded guilty to the charge. The summary concludes by recording that the defendant has a previous conviction for contempt of court in 2019.
9. The offence of manslaughter carries a maximum penalty of life in prison which is an indication of the seriousness of the crime. But it has often been said as the Court of Appeal did in the leading case of Nepa v Attorney General [2020] WSCA 1 that “cases of manslaughter differ individually and infinitely both in degree and circumstance.” With the result that it is not possible to set a tariff or a start point that applies across the board to all cases of manslaughter. The start point for each case must depend on its own unique set of circumstances and facts.
10. This particular matter involves the loss of the life of a young person. At 14 years of age he had all of his life ahead. Who can say how valuable a contributor he could had been to his family his village his church and to his country. Perhaps even to the world because all great people were once upon a time children. This potential opportunity was eliminated in a moment of anger-filled rage no doubt fueled by the alcohol the defendant was consuming. A scenario that the court sadly sees repeated time and again in this community far too often. A factor that in my view needs to be borne in mind in assessing the defendants penalty.
11. The defendants offending is further aggravated by the fact that the deceased was his own son, his own flesh and blood. Your duty sir as a father was to cherish nuture and protect the boy. He is not an object upon which you can mindlessly vent your anger. This is a case of domestic violence in the family home, something which the Government and the Courts of this country have been trying to stamp out and eliminate for many years. This fact cannot be under emphasised and the court must remain consistent in the firm stance it has taken in relation to such cases.
12. It is also relevant the defendants weapon of choice was a stone. Which in the hands of the average Samoan at close range is just as lethal as a pistol in the hand of a “palagi”. Not content with that, the summary of facts says the defendant also used a tree branch to “sasa” the boy twice on his back while he lay defenceless and injured on the ground. It also appears it was the daughter who intervened to try and stop the beating prompting the defendant to come to his senses and call for her to help the unconscious boy.
13. The court also does not overlook the area of the deceaseds body targeted by the defendants rock viz, the head, the control center of the entire body. The deceaseds injury was according to what I have read located on the right side of the skull and the blow was severe enough to cause a laceration and bleeding as noted in para 13 of the summary of facts.
14. As to the impact of the defendants offending on his family, this is probably best summed up by the deceaseds sister in her Victim Impact Report. Where she said:

“O se aafiaga o lou mafaufau i lenei mataupu ua misia lava si o’u tuagane mai totonu o le matou aiga. Ou te fia taua o lo’u tuagane e pele lava i le matou aiga ma o le tele o taimi ua le lelei se moe na o le mafaufau lava i si o’u tuagane ua maliu. O le aafiaga tele lena o lo’u mafaufau ona o le motusia o le mafutaga ma si o’u tuagane.”

The sister also relevantly adds

“Ou te fia taua sa fai lava le feiloaiga a le matou aiga potopoto ma le sa’o o le matou aiga ma sa fai le fa’atoesega a si o’u tama poo lea o loo molia nei. Ou te fia taua sa talia le faatoesega a lo’u tama e le sa’o o le maotu aiga faapea le matou aiga potopoto.”

15. As counsel have acknowledged, the courts sentencing must as provided by the Sentencing Act 2016 reflect the gravity of the offending and the degree of culpability of the defendant. It must hold the defendant accountable for the harm he has done not only to the victim but to the community at large and to his family. It must also denounce his conduct and operate to deter him and others from engaging in such callous acts of violence.
16. But there is a further factor the legislation requires the court to consider: Section 8 of the Act specifically deals with cases of violence against persons under 18 years of age. This represents a statutory recognition of the special vulnerability of children as victims. Section 8 (2)(a) directs the court to take into account the defencelessness of the victim who in this particular case was running away from the armed angry defendant. And section 8(2)(c) talks of the relationship of trust between the boy and the defendant in this case the father-son relationship and how the defendant has to the maximum extent possible broken that trust.
17. Counsels have also referred to the courts previous decisions in cases of homicide within the family context. In particular defence counsel has advocated for the court to follow the approach in Police v Amituanai (unreported judgment dated 09 May 2019) and Police v Simanu [2007] WSSC 5. The former case involved a 58-year-old father killing his 35-year-old son who was heavily intoxicated and who had damaged the fathers car. In that case a non-imprisonment penalty was applied. The circumstances of that matter are however quite different to the present. For one the respective ages of the deceased and also the fact that the court there accepted the deceaseds provocative behaviour significantly contributed to what happened to him. Furthermore, in that case the defendant did not resort to using weapons such as a rock or a stick.
18. In respect of the Simanu case that was a rare set of circumstances involving two young boys, a 14 year old who swore at a 16 year old as they passed on the road. In the course of their resulting inevitable fight the younger boy grabbed a rock and threw it at the deceaseds head killing him. In that case there was also a formal reconciliation and penalty imposed by the village council which the defendant and his family paid. The court in Simanu went on to nevertheless impose a term of imprisonment but suitably discounted for the young age of the defendant and the particular circumstances of the case. That is not the situation here.
19. Considering all factors the prosecution have suggested the court should start sentence at six (6) years in prison. I think that is totally inadequate given all the factors. I am of the view a start point of ten (10) years imprisonment is far more appropriate. That more accurately reflects the gravity of the offending and the culpability of the defendant as well as the aggravating features of this case.
20. For the reasons given ten (10) years in prison is the start point to be adopted. But from that start point you are entitled as your counsel has correctly pointed out to deductions reflecting mitigating factors. The first deduction usually made is for the fact that a defendant has a clean police record and is of good character. But here you do not have a clean record because you have a recent previous conviction. I have also read the supposed letter of good character attached to the Pre-sentence Report from your Bishop as you are of the Latter Day Saints faith. It actually says nothing about you being of good character and cannot be treated as a character reference. And there are no other references provided. Notwithstanding all that I will however accept the testimony of your wife to the Probation Service when she described you as a good family man who renders diligent tautua to the village and the ekalesia. For this I will deduct three (3) months from your sentence.
21. It has been argued the defendant should also be given credit for the provocation arising from the young boy swearing at his father as recorded in para 6 of the summary of facts. I note however that the defendant in his account of events given to the Probation Service made no reference to this. I have no doubt that if it were true the defendant would have relayed this to the Probation Office as being a further cause of his anger at the young boy. Absent any evidence on the matter I am therefore skeptical of this fact. But even if the defendant said these things, these would be the actions of a 14 year old boy, a child. Any reasonable Samoan father would not necessarily be provoked into grabbing a rock and attacking the child. The defendants reaction if there was one went well beyond what a reasonable father would have felt and done in the circumstances. There will be no deduction for provocation.
22. Credit however can be given to the defendant for the formal apology and reconciliation as confirmed by his daughter. This is important and is fully appropriate and in accord with our “tu ma aganuu fa’a-Samoa”. A deduction of one (1) year from your sentence will be applied for that matter.
23. I also have no doubt about the defendants remorse for what he did and for the consequent loss of his son. This is reflected in his pleading guilty to the charge, a further three (3) months will be deducted for that.
24. Another deduction usually given in cases of this nature is for the penalty imposed by the defendants village council for the defendants offending. But in this case the Probation Office have confirmed that the defendant has rejected the penalty imposed by his village council and as a result he has been banished from the village. The defendant is therefore not eligible for this deduction.
25. But he is eligible for a final deduction to reflect his guilty plea which has saved the Courts valuable time and limited resources. It has also avoided the necessity of his family having to endure a public recounting of these tragic events. The normal deduction of one-quarter of the balance of sentence will be applied, which I round off to two (2) years.
26. This means that the total deductions the defendant is eligible for are one (1) year and three (3) months and two (2) years and three (3) months or in total three (3) years and six (6) months. From the start point of ten (10) years that leaves a balance of six and a half (6½) years in prison.
27. On the charge of manslaughter, you are accordingly convicted and sentenced to six and a half (6½) years in prison but any time in custody awaiting sentence is to be deducted from that period.
28. Normally in homicide cases such as this the court would also as part of the sentencing process issue a Coronial Finding as to the cause of death of the deceased. This case however has two unusual features which prevents this being done. Firstly as noted there has been no post-mortem report tendered from a suitably qualified forensic pathologist certifying the cause of death as is usual in homicide case. Because as noted it appears no post-mortem has been conducted on the deceased despite the Coroner ordering one in November 2020, some three and a half (3½) months ago.
29. Coroners orders are issued pursuant to statutory powers and functions given to the Coroners Court by Parliament under the Coroners Act 2017. Section 16 of that Act empowers the Coroner to order a post-mortem examination and under section 16(6) to order it be done immediately if:

“(a) Any delay would or may limit the ability of the pathologist to determine the cause of death;

(b) the dead person is an infant.”

30. This case of course involves an “infant” because an “infant” by law is a person under 18 years of age. No doubt these factors were in the Coroners mind when she ordered on 10 November 2020 -

“Post-mortem is accordingly ordered to conclusively determine the cause of death.”

31. This is therefore not only an order of the court but an order made pursuant to laws passed by the duly elected representatives of the people sitting as Parliament. It is in effect an order from Parliament. It is not a matter to be complied with at the leisure or convenience of Government officials. This needs to be drawn to the urgent attention of the Honourable Minister for Health.
32. The second unusual factor of this case is it appears from the facts that the deceased was admitted overnight to Lufilufi District Hospital at least once after he suffered his injuries. But was discharged without any apparent effort to treat what was a serious head injury which caused him to die five (5) days later at Moto’otua Hospital. What occurred in the interim is unknown as no medical reports of any kind apart from the normal Coroners Form to the Coroner has been provided to the court.
33. In the circumstances I am not issuing a Coronial Finding but referring this matter back to the Coroners Court to carry out a full Coronial Inquiry into the cause of and circumstances surrounding the deceaseds death with particular focus on the following questions:
    • (i) Why the deceased was discharged after an overnight admission to Lufilufi District Hospital and by whom?
    • (ii) Was the existence of the injury or the fact that it was from a rock thrown to his head disclosed to the Lufilufi staff?
    • (iii) If so why no further action such as referral to Moto’otua for a skull x-ray/MRI or other treatment was taken?
    • (iv) If relevant particulars were not disclosed then to ascertain details as to exactly what Lufilufi Hospital were told and by whom? In this regard I note the Coroners Form completed post-death relates the history from the parents as being that the deceased was chasing chickens with his brother and a mis-thrown rock was the cause of the head injury. Someone must have provided this false information.
    • (v) What particulars and from whom were they provided to Moto’otua Hospital when the deceased was finally admitted, and what treatment was given to him at Moto’otua?
    • (vi) It is noted from second hand information given to the court that the lack of a post-mortem is due to the unavailability of a suitably qualified person to undertake this and a large number of other post-mortems which are still pending. While a reasonable delay is understandable in these times of the COVID pandemic a three and a half (3½) month or longer delay is respectfully not. And the court sympathizes with the family of this young boy and other families who have been unable to lay their loved ones to rest. The Coroners Court must therefore also determine what urgent measures are proposed by the Health Authorities to dispose of these cases and what steps are being taken to ensure such a situation does not recur in the future?
34. This file will accordingly be returned and referred to the Coroners Court for conducting of this Inquiry as aforesaid and will be called before that court for mention 10:00 a.m. on Monday, 01 March 2021.
    

JUSTICE NELSON