Police v Aiomalaga [2022] WSSC 63 (8 December 2022)

IN THE SUPREME COURT OF SAMOA
Police v Aiomalaga & Anor [2022] WSSC 63 (08 December 2022)

Case name:	Police v Aiomalaga & Anor
Citation:	[2022] WSSC 63
Decision date:	08 December 2022
Parties:	POLICE (Informant) v PANI AIOMALAGA, male of Leulumoega tuai (First Defendant) and TELOSIA KALOLO, male of Fasitoo tai (Second Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	On the one joint charge of manslaughter, Pani Aiomalaga is convicted and sentenced to 3 years’ imprisonment. Telosia Kalolo is also convicted and sentenced to 6 months’ imprisonment.
Representation:	B. Vukalokalo for Prosecution Q. Sauaga for the First Defendant C. Vaai for the Second Defendant
Catchwords:	Manslaughter – jointly charged – provocation – early guilty pleas – ifoga carried out – village penalty imposed and carried out – custodial sentences imposed.
Words and phrases:
Legislation cited:
Cases cited:	Police v. Lagalaga Tai Lesa (20 September 2012, Unreported); Police v. Natano [2012] WSSC 89 (21 September 2012). Police v. Pesefea [2018] WSSC 123 (8 October 2018); Police v. Tavai [2010] WSSC 175 (8 December 2010); Police v. Puka Wesley Upu & Others (27 July 2012, Unreported); Police v. Vaiola [2019] WSSC 51 (12 July 2019).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

PANI AIOMALAGA male of Leulumoega tuai.

First Defendant

AND:

TELOSIA KALOLO male of Fasitoo tai

Second Defendant

Counsel: B. Vukalokalo for Prosecution
Q. Sauaga for First Defendant
C. Vaai for Second Defendant

Sentence: 08 December 2022

SENTENCE OF ROMA J

Charge

1. You appear this morning for sentence on one joint charge of manslaughter. You entered guilty pleas to the charge on the 8^th November 2022 after prosecution withdrew the original charging document containing the principal charge of murder and two individual charge of being armed with a dangerous weapon.

Offending

2. The charge is the result of an incident that occurred at Fasitootai on the 25^th May 2017. The two of you, the deceased who was a 29 year old male of Fasitoouta and others had been drinking near the deceased’s house. It ended at about 9pm before you and the others prepared to leave in Pani’s car. As you were leaving, the deceased who was armed with rocks stood on the road and blocked the way. He was also swearing at you. Telosia then hopped out of the car and approached the deceased. The deceased tried to punch Telosia but Telosia punched him first on the face causing him to fall on the ground. As the deceased tried to get up, Telosia and others continued to assault him whilst on the ground. Pani then used a rock and struck the deceased on the back of his head before he stomped on the deceased’s back as he was lying on the ground face down.
3. The deceased’s wife intervened and tried to push everyone away from her husband. The deceased was then taken to Leulumoega hospital where he later died. He was subsequently taken to Tupua Tamasese Meaole hospital where he was pronounced dead on arrival. The medical officer’s report to the coroner noted the following injuries;
   • (i) facial injuries swollen right cheek;
   • (ii) two lacerations at the back of the head and a crack on the skull;
   • (iii) his body was in rigor mortis.
4. The post mortem report dated 11^th July 2017 identifies as direct cause of death blunt force head injury and antecedent cause as being hit with a rock.

Victim

5. The deceased was 29 years of age. From the victim impact report submitted through the Attorney General’s Office, his partner explains the heartache and pain she and the deceased’s parents suffered as a result of his unexpected passing. The partner says that she and the deceased had been living together for less than a month before the incident occurred. She says that her deceased partner was his parents only child. She continued living with her partner’s family for five months after his burial before she returned to her family. She maintains contact with the deceased’s family. The partner denies any reconciliation offered by your families. But the pre sentence report refers to a sister of the deceased confirming an ifoga by your families.

Aggravating Factors

6. The aggravating features of your offending are:
   • (i) this was a joint offending involving not just the two of you but others;
   • (ii) it was a continuous assault of the deceased whilst the deceased was defenceless on the ground;
   • (iii) it involved the use of a weapon - from the summary Pani used a rock to hit the back of the deceased’s head;
   • (iv) serious injuries were caused including swelling on the deceased’s face, lacerations on the back of his head and a fractured skull which led to his death;
   • (v) vulnerability of the victim given his intoxicated state and the fact that he was outnumbered by you and your friends;
   • (vi) the impact of your offending including the loss of life and grief to the deceased’s surviving partner and his parents.

Mitigating Factors

7. In relation to the offending I consider that there was provocative conduct on the part of the deceased. He was armed with rocks, he was intoxicated and he was swearing at you. He blocked the road and prevented you from leaving; he also threatened to throw rocks at the vehicle. The other mitigating feature of the offending relates to culpability. As will be reflected in the sentence, Telosia was less culpable than Pani.
8. Personal to you as offenders, I consider the following:
   • (i) your guilty pleas;
   • (ii) the ifoga that was conducted by your family and the village of Fasitootai to the family of the deceased;
   • (iii) the penalty imposed by the village - the documents say that $10,000 was presented to the village by you and others involved;
   • (iv) your personal circumstances - for Pani you are 28 years of age, married and a father of one child. You and your wife are expecting your second child. At the time of offending you were 23 years of age, single and had no children. You ended your formal education at year 12 level. You are one of two children, your parents separated at your young age leaving you in the care of your maternal grandparents. You have worked a number of jobs to support your family. Your wife describes you as a family man who has felt true remorse for your involvement in this matter. I have read the testimonials by your wife; your Minister Rev. Isaako Vaisagote of the Methodist Church of Leulumoega; and pulenuu of Leulumoega. They all speak of your service to your family, village and your church. You are a first offender.
     

For Telosia you are now 36 years of age, married and a father of 6 children one of whom has passed away. At the time of offending you were 31 years of age. You completed your secondary level of education at Chanel College. You have also worked a number of jobs including carpentry work for Cabella and seasonal work overseas upon your return from which this incident occurred. As a result of this case, you have been staying at your wife’s family at Vaiusu. Your wife describes you as a reliable, diligent and kind person. The character references from Deacon Paulo Mulipola of the Vaiusu Catholic Mission and Ulugia Felise, pulenuu of Vaiusu describe you as a humble and respectful person who is an active member of the church and renders good service with the untitled men of Vaiusu. The sui ole nuu for Fasitootai namely Tovaotele Maotua Levi confirms the substantial amounts involved in the ifoga and penalties to the village. You are also a first offender.

Discussion

9. The maximum penalty for manslaughter is life imprisonment. The sentences imposed by the Court have however varied from non custodial sentences of supervision to lengthy sentences of imprisonment depending on the facts and circumstances of each case. In their sentencing memorandum prosecution recommend a starting point of 8 years for Pani Aiomalaga and 4 years for Telosia Kalolo.
10. I have reviewed the circumstances of all cases cited by prosecution - Police v. Puka Wesley Upu & Others (27 July 2012, Unreported); Police v. Pesefea [2018] WSSC 123 (8 October 2018); Police v. Lagalaga Tai Lesa (20 September 2012, Unreported); and Police v. Natano [2012] WSSC 89 (21 September 2012).
11. For Pani your counsel seeks a starting point of 5 years. He relies on Police v. Pesefea cited by prosecution; Police v. Vaiola [2019] WSSC 51 (12 July 2019); and Police v. Tavai [2010] WSSC 175 (8 December 2010). For Telosia your counsel seeks a non custodial sentence.
12. I have carefully considered the submissions by prosecution and your respective counsel and the authorities cited in support. For Pani who is the more culpable of you two, I adopt a starting point of 7 years. I make these deductions. For provocation I deduct 6 months. For the ifoga performed by your family and village of Fasitootai I deduct 6 months. For the penalty imposed by your village I deduct 6 months. For your personal circumstances including your remorse and first offender status I deduct 12 months. The remainder after those deductions is 4 years and 6 months. I make a final deduction of 18 months for your guilty plea to the charge. The end sentence is 3 years.
13. For Telosia I adopt as the appropriate starting point 4 years as recommended by prosecution. I make the following deductions. For provocation I deduct 6 months. For the ifoga I deduct 6 months. For the penalty imposed by your village I deduct 6 months. For your personal circumstances including your remorse and first offender status I deduct 12 months. The remainder after those deductions is 18 months. I make a final deduction of 12 months for your guilty plea leaving an end sentence of 6 months.

Result

14. On the one joint charge of manslaughter, Pani Aiomalaga is convicted and sentenced to 3 years’ imprisonment. Telosia Kalolo is also convicted and sentenced to 6 months’ imprisonment.
    

JUSTICE ROMA