Police v Faleiva [2022] WSSC 57 (18 November 2022)

IN THE SUPREME COURT OF SAMOA
Police v Faleiva [2022] WSSC 57 (18 November 2022)

Case name:	Police v Faleiva
Citation:	[2022] WSSC 57
Decision date:	18 November 2022
Parties:	POLICE (Prosecution) v MAELI FALEIVA, male of Safai, Savaii (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata K. Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced as follows: (i) For the charge of manslaughter, the defendant is sentenced to 2 years’ + 7 months’ imprisonment; (ii) For the charge of armed with dangerous weapon, the defendant is sentenced to 6 months’ imprisonment. The sentences are to be served concurrently less any time in custody.
Representation:	I. Atoa for Prosecution A. Lesa for the Defendant
Catchwords:	Manslaughter – armed with a dangerous weapon – defendant and victim brothers – ifoga performed – early guilty plea – remorse – provocation – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 92; 102; 108; Police Offences Ordinance 1961, s. 25;
Cases cited:	Police v Tuaoi [2019] WSSC 38.
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

MAELI FALEIVA male of Safai, Savaii

Defendant

Counsel: I. Atoa for Prosecution

A. Lesa for the Defendant

Sentence: 18 November 2022

SENTENCING OF TUATAGALOA J

The charges

1. Maeli Faleiva appears for sentence on the charge of manslaughter which penalty is maximum life imprisonment^[1] and armed with a dangerous weapon (heavy stick or amo) which penalty is maximum 1 year imprisonment.^[2]
2. The circumstances of the offending is very unfortunate. In brief, the defendant and the deceased are brothers. On Thursday, 3^rd February 2022 the two brothers went to mow their mother’s lawn, they drank alcohol after, they got intoxicated and one end up dead. The defendant is the older brother, 36 years of age; and the deceased is 27 years old. The deceased was single.

The offending

3. According to the summary of facts, the deceased who was heavily intoxicated hit the defendant on the left shoulder with a machete causing the defendant to fall down. This did not stop the deceased as he struck again at the defendant with the machete to which the defendant put his hand up to block or fend off the machete. The defendant tried to grab the machete but pulled it away resulting in severe lacerations or cuts to his fingers and left hand. The defendant was said to have lost conscious and the deceased walked away. However, not long after it poured down with rain and this woke up the defendant. He grabbed a heavy stick used for carrying loads (amo poumuli) and went after the deceased. Somehow, the defendant managed to catch up with the deceased and he struck the deceased from behind on the head, not once but three times. The defendant did not stop when the deceased fell on the ground but instead he continued to kick and stomp on him.
4. There was no mention of any lawn mowing during the day by the defendant and the deceased prior to what happened in the PSR. The defendant relayed in the Pre-Sentence Report (PSR) that he drank with a friend somewhere else and when they decided to go to their other house inland, they came across the deceased and a group of young village men drinking in a shack. They joined and not long after the deceased left. Not long after they left as well and went to the deceased house where they then all drank together. Sometime later, his friend Lui left and that’s when the incident happened. The defendant relayed that the deceased hit him with the machete on the left shoulder, the deceased swung at him again and hit him on the wrist. Fearing for his life he advanced towards the deceased and struggled with him to try and remove the machete to which the deceased managed to pull away injuring his fingers. The deceased then pushed him out of the house and he fell outside and lost consciousness. When he regained consciousness, he saw the deceased on the road with the machete walking around with the machete yelling obscenities and uttering threatening words. The defendant said he grabbed the hard poumuli stick (amo) and walked over to where the deceased was. He said he hit the deceased three times in an attempt to calm and quieten him down as he was making too much noise. He managed to do so but just not the way he intended.
5. I accept the events of what happened as relayed by the defendant in the PSR as it gives more of a complete picture of what took place leading up to the incident. The offending itself as relayed in the summary of facts and the PSR are however consistent.

The victim

6. A post mortem was carried out on 1^st June 2022. The Pathologist findings as to the cause of death were due to:
   • (a) Severe intra-cranial haemorrhage;
   • (b) The antecedent causes is severe traumatic head injuries;
   • (c) The external cause is blunt head force trauma.
7. In simple language the victim died from severe head injuries. This is consistent with the actions of the defendant that he relayed in the PSR and as in the summary of facts by the prosecutions.

Defense in mitigation

8. Counsel submitted the following in mitigation:
   • (i) Lack of previous convictions;
   • (ii) Early guilty plea;
   • (iii) The family has performed a ifoga to the village in accordance with village rules and protocol;
   • (iv) Truly remorseful – The defendant is said to be truly remorseful, that his actions are said to be out character for him and which have caused such enormous personal loss to his family;
   • (v) Impact on the family of losing one son for good with the likelihood of losing another son (defendant) to imprisonment; and
   • (vi) The offending was provoked.
9. Counsel for the defendant given the personal circumstances of the defendant and the circumstances of the offending with the involvement of provocation seeks the court’s indulgence to consider a non-custodial sentence for both offences for the defendant to be ordered to appear for sentence if called upon to do so within 3 years on condition that he be of good behaviour for the 3 years. Alternatively, should the Court not accept a non-custodial Counsel for the defendant submitted that a starting point between 6-8 years to be adopted with an end sentence of between 2-4 years.

Prosecution submissions

10. Prosecution submitted the following aggravating factors of the offending:
    • (i) The offending was one of domestic violence;
    • (ii) Loss of human life;
    • (iii) The use of a weapon;
    • (iv) Point of impact was to the head, a very vulnerable part of the body highly risky to death if injured.
11. Prosecution referred to various sentencings on manslaughter and the range of penalties imposed by the Court. They submitted for the Court to consider the case of Police v Tuaoi [2019] WSSC 38 (18 April 2019) committed in similar circumstances as the present case and recommended an appropriate starting point of seven years and six months (7 ½). I disagree the circumstances of this case are very different from the present case.

Discussions

12. There is no doubt that the defendant was indeed provoked. Anger fueled by alcohol is an explosive mixture. It knows no boundaries and we have seen this time and time again with matters coming before the Court involving family members. Alcohol should never be an excused for one’s criminal behaviour or used as a defence.
13. Although, there was provocation, the retaliation by the defendant was a bit out of proportion especially so when the deceased was struck from behind and on the side. The deceased was caught unaware. I accept that the defendant had hit the deceased to quiet him down for he was making too much noise but he himself at the time was angry and was intoxicated and he would have miscalculated how hard he was hitting his brother (deceased) with the stick.
14. There is no doubt that the defendant truly regrets his behaviour and probably thinking that ‘if only’ but it is just too late for what is done, is done and he will have to live with the knowledge that he caused the death of his younger brother for the rest of his life. The defendant is a first offender at 36 years of age. I accept that the actions of the defendant were out of character.
15. I accept the ifoga done by the defendant’s family to the village in accordance with Samoan customs and the village rules and protocols particular to that village.
16. As mentioned earlier, I can only imagine what the defendant’s parents are going through and the sadness that a parent feels when they lose a child at the hands of another child. The huge impact of all this on this family but a loss of life is always taken very seriously by the Court, and the Court in sentencing takes the surrounding circumstances of the offending into account.^[3]In the circumstances of this offending a custodial sentence is nevertheless appropriate.
17. I find appropriate as starting point of 5 ½ years for the provocation involved and further deduct 2 years for the mitigating factors (excluding the early guilty plea) submitted by defence counsel. This leaves 3 years + 6 months or 42 months to which I lastly deduct 25% discount for the early guilty plea which amounts to 11 months. The end sentence for the offence of manslaughter is 31 months or 2 years + 7 months.
18. For the offence of armed with a dangerous weapon the defendant is imposed with 6 months’ imprisonment.

Sentence imposed

19. The defendant is convicted and sentenced as follows:
    • (i) For the charge of manslaughter, the defendant is sentenced to 2 years’ + 7 months’ imprisonment;
    • (ii) For the charge of armed with dangerous weapon, the defendant is sentenced to 6 months’ imprisonment.
20. The sentences are to be served concurrently less any time in custody.
    

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, ss92, 102, 108
^[2] Police Offences Ordinance 1961, s25
^[3] Police v Matalavea [2006] WSSC 30 per CJ Sapolu ; see also Nepa v Attorney General [2010] WSCA 1.