Police v Lopesi [2023] WSSC 12 (5 April 2023)

IN THE SUPREME COURT OF SAMOA
Police v Lopesi [2023] WSSC 12 (05 April 2023)

Case name:	Police v Lopesi
Citation:	[2023] WSSC 12
Decision date:	05 April 2023
Parties:	POLICE (Informant) v NUUULI LOPESI, male of Tafatafa (Accused)
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 charge of manslaughter you are convicted and sentenced to 6 years’ imprisonment. On the two charges of causing grievous bodily harm you are convicted of both and sentenced to 3 years’ imprisonment on each charge. On the one charge of being armed with a dangerous weapon, you are convicted and sentenced to 9 months’ imprisonment. All sentences are to be served concurrently meaning you will serve only 6 years’ imprisonment.
Representation:	E. Lam & T. Sasagi for the Informant F. Lagaaia for the Accused
Catchwords:	Manslaughter – grievous bodily harm – being armed with a dangerous weapon (machete) – multiple victims – one deceased – ifoga carried out – first offender – multiple strikes with machete – high degree of violence – provocation – victims were intoxicated at time of offending – accused reaction disproportionate to provocation.
Words and phrases:
Legislation cited:
Cases cited:	Faafua (Vili) v Police [1980 – 1993] WSLR 550; Police v Aisea [2006] WSSC 47 (30 August 2006); Police v Ausage [2007] WSSC 28 (30 April 2007); Police v Gali [1999] WSSC 19 (29 September 1999); Police v Langkilde [2009] WSSC (3 August 2009); Police v Luamanu [2017] WSSC 124 (4 August 2017); Police v Neemia [2023] WSSC 9 (15 February 2023); Police v Samuelu Viliamu (unreported decision, 1 July 2013).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

NUUULI LOPESI male of Tafatafa.

Accused

Counsel: E. Lam & T. Sasagi for the Informant

F. Lagaaia for Accused

Sentence: 5 April 2023

SENTENCE

Charges

1. You appear for sentence on 4 charges. One of manslaughter which carries a maximum penalty of life imprisonment, 2 of causing grievous bodily harm which attracts a maximum penalty of 10 years’ imprisonment for each charge, and one of being armed with a dangerous weapon which has a maximum penalty of one year imprisonment.
2. You had denied the charges but on 25 October 2022 when the hearing was to commence, prosecution filed an amended charging document and you pleaded guilty to all 4 charges.

Offending

3. According to the amended summary which you accepted through counsel, the charges arise out of an incident on a Sunday afternoon 6 March 2022 at Tafatafa, Falealili. The first victim (“deceased”) and 2 others (”second victim” and “third victim”) had driven together with friends from Lotofaga to Tafatafa beach where they spent the morning and consumed a large bottle of niu vodka mixed with water. About 3pm, they left the beach and headed towards the main road. They were playing music and talking inside the car when they heard a rock hit the car. They slowed down but more rocks were thrown at the car. They were unable to see who was responsible. Two of the occupants other than the deceased and second and third victims got out of the vehicle and ran towards the bush area where they suspected the rocks were thrown from. The deceased and second and third victims also got out and ran towards the front. They challenged whoever was throwing rocks at them to come out.
4. You heard their call and approached them whilst they continued to swear in anger. You returned to your house, fetched a machete and came back to where they were. You struck the deceased on the left side of his neck, he ran off to seek refuge. You turned to the third victim and struck him on his shoulder. A second strike landed on his right eye. The third victim also ran from the scene.
5. The second victim was still standing nearby with rocks in his hands. He tried to run away but you struck him on his back with the machete. He fell at the scene and was unable to escape. Meanwhile you chased after the deceased and the second victim but they had found refuge in nearby homes. Your relatives and fellow villagers stopped you from pursuing the victims further.
6. The deceased and victims’ other friends who were in the car arrived near the main road and found the second victim lying injured and covered with blood. He sustained a deep open laceration on his back. They took him to Poutasi District Hospital and they arrived the same time as another family who brought in the third victim. He sustained a deep open laceration on his shoulder and a laceration on his right eye.
7. The deceased had also been brought to hospital then. According to Dr Wesley Mariner’s report to the coroner, he was gasping for air from a large gaping wound to his neck. The wound measured 10cm long and 4.5cm wide. There was also a small laceration on his back measuring 5cm long. Dr Mariner found the cause of death to be hypovolemic shock secondary to a cut of the major vessels to the neck. The post mortem report also concluded as cause of death ‘exsanguination’ or severe loss of blood from a severe slash neck wound.

Victims

8. The deceased was a 26 year old male of Lotofaga. He died of severe loss of blood from a severe gaping wound to his neck. His family express in the VIR their shock at the incident and the impact of his untimely passing. There had been plans for him to travel overseas under the seasonal workers’ scheme. They also confirm the ifoga by your family and village including the presentation of fine mats and money.
9. The second victim is a male also of Lotofaga. There is no VIR and the summary dose not disclose his age. He sustained a deep open laceration on his back.
10. The third victim is a 25 year old male also of Lotofaga. He sustained a deep open laceration on his shoulder and a laceration on his right eye.

Accused

11. You are 51 years of age and married with 2 children. You are the eldest of 2 siblings and were raised by your mother after your parents separated at your young age. Your formal education ended at Year 6 level before you assisted your family on the plantation. You were living with your wife’s family at Tafatafa when the incident took place. Your mother describes you in the pre sentence report as a reliable, well mannered and respectful individual who takes good care of his parents, wife and children. She was shocked and saddened by your involvement in this matter. You do not smoke or drink.
12. Your wife in her plea to the Court confirms that you have been married for 33 years and you are the breadwinner for your family and in the service (tautua) you render to the extended family and church. The bail conditions consequent upon your being charged have had a huge impact on your family developments. She fears the impact a sentence will have on your family, in particular your eldest daughter in New Zealand and younger son here in Samoa who will not have you around to care for them. Your children have also written in support, expressed the need for your family to be together, sought forgiveness and leniency in sentencing.
13. Bishop Tuiputa Apinati Fili describes you as an active member of the LDS Church Tafatafa Ward who is faithful, caring and loving and ensures that his family and children are well sustained.
14. You are a first offender.

Aggravating Factors

15. The aggravating factors relative to the offending are:
    • (i) the use of a weapon - the injuries sustained by the deceased and second and third victims were caused by strikes from a machete;
    • (ii) the high degree of violence – you continued to pursue the victims after causing each of them serious injuries when they ran to seek refuge;
    • (iii) the offending involved multiple victims;
    • (iv) the impact of the offending – you caused the victims serious injuries which further resulted in the unexpected loss of a young life. The impact on the deceased’s family must also be considered.

Mitigating Factors

16. In relation to the offending, I accept that there was a degree of provocation on the part of the victims. They had been making noise and swearing openly on a Sunday afternoon. They were intoxicated and when you approached to see what was happening they told you to mind your own business. But they too were provoked by the attack of their vehicle by unknown persons. They had rocks, they threatened you and swore at you. At that point they were the aggressors.
17. But I consider that when you returned to your house and came back with a machete to a bunch of drunk and angry young men, you were overcome with anger and it was obvious that trouble would ensue. Trouble did ensue, you were not caused any harm and your retaliation was overwhelmingly disproportionate to the victims’ provocative conduct.
18. In that regard I echo what the Court of Appeal said in Faafua (Vili) v Police [1980 – 1993] WSLR 550 cited by Wilson J in Police v Gali [1999] WSSC 19 (29 September 1999) and more recently by Tuala Warren J in Police v Neemia [2023] WSSC 9 (15 February 2023). “This was a serious wrong which you did. Although you were provoked, you should not have responded in the way you did and with such severity. Your actions, even though provoked, are blame-worthy and culpable.”
19. Personal to you as offender, I consider in mitigation the following:
    • (i) Your guilty pleas to the charges when amended by prosecution;
    • (ii) Ifoga - the Sui o le Nuu of Tafatafa, Taito Tumau Peni and the Honourable Fiame Naomi Mataafa as MP for Lotofaga and representative of Sa Levalasi confirm that your family and village of Tafatafa presented an ifoga to victims’ families and village which was accepted. Included were $10,000 for the village of Lotofaga and the usual presentation of tofa and lafo to the pastors and matai of Lotofaga which is estimated to be at least worth $15,000 in total;
    • (iii) Separate from those sums but also presented during the ifoga were $10,000 for the deceased’s funeral expenses (lauava) and ‘tofa’ for his family; and $1,000 and ‘tofa’ for each of the second and third victims’ families. These are substantial contributions;
    • (iv) Your personal circumstances as I have referred to earlier including your age and previous good character and the impact on your family. I also accept that you are remorseful.

Discussion

20. The maximum sentence for manslaughter is life imprisonment. But the Court has imposed a wide variety of varying sentences ranging from non custodial sentences to lengthy terms of imprisonment depending on the facts and circumstances of each case. Your case concerned the use of a weapon to inflict serious injuries on 3 victims whom you continued to pursue until stopped by your relatives and fellow villagers. One of those victims died. And the Court must never lose sight of the gravity of the crime including the loss of human life. The appropriate sentence must be a term of imprisonment.
21. Prosecution submit that the appropriate starting point is 9 years. Of the cases cited in its sentencing memorandum, they rely in particular on an unreported decision in Police v Samuelu Viliamu (1 July 2013) where the deceased chased after the accused and death was caused by head injuries sustained when the accused threw a coral rock at him. There was an element of provocation. The Court adopted 9 years as starting point.
22. They further cite Police v Luamanu [2017] WSSC 124 (4 August 2017) where death was caused by stab wounds to the side of the deceased’s head. There was also an element of provocation. The Court adopted a starting point of 9 years’ imprisonment.
23. Your counsel on the other hand submits that a starting point of 8 years is appropriate. Counsel refers to Police v Aisea [2006] WSSC 47 (30 August 2006) and Police v Langkilde [2009] WSSC (3 August 2009) where death was caused by injuries inflicted using a knife and machete. There was an element of provocation in Langkilde and the Court adopted an 8 years starting point.
24. Counsel further relies on Police v Ausage [2007] WSSC 28 (30 April 2007) where the Court adopted guidelines in assessing the degree of provocation and range of sentence in cases of manslaughter by reason of provocation. I find the guidelines relevant and adopt the same in your case. But the circumstances in Ausage vary completely because yours concerned multiple victims whom you continued to pursue after you inflicted serious injuries until you were calmed by members of your family and village.
25. In determining sentence, I also consider the recent sentencing in Police v Neemia [2023] WSSC 9 (15 February 2023) where a double manslaughter were committed using a firearm. In that case, Tuala Warren J observed as ‘unprecedented, extremely violent and particularly cruel the type of gun violence involved which killed 2 people in a short period of time.’ Her Honour adopted a starting point of 25 years. Whilst the circumstances and facts of Neemia clearly differ from yours, it is evidence of how wide the Court has exercised the discretion to impose varying sentences in cases of manslaughter depending on the facts of each case.
26. Coming back to your case, having considered the gravity of your offending and the sentencing authorities I have referred to, I adopt 12 years as the appropriate starting point.
27. From that 12 years I make these deductions - 12 months for provocation; a further 12 months for the ifoga presented by your family and village to the family and village of the deceased and second and third victims; a further 12 months for the substantial contribution in money to the deceased funeral and lauava and expenses to the second and third victims; and a further 12 months for your personal circumstances including your remorse and previous good character. The remainder after those deductions is 8 years. I make a final deductions of 2 years for your guilty plea to the charges leaving an end sentence of 6 years.

Result

28. On the one charge of manslaughter you are convicted and sentenced to 6 years’ imprisonment.
29. On the two charges of causing grievous bodily harm you are convicted of both and sentenced to 3 years’ imprisonment on each charge.
30. On the one charge of being armed with a dangerous weapon, you are convicted and sentenced to 9 months’ imprisonment. All sentences are to be served concurrently meaning you will serve only 6 years’ imprisonment.

Coronial Finding

31. Finally I issue a Coronial Finding to certify that Tapu Junior Sitagata, a male of Lotofaga Aleipata born on the 10^th March 1996, died on the 6^th March 2022 at Poutasi District Hospital as a result of severe loss of blood from a deep slash wound to his neck. I also certify that the perpetrator has been dealt with according to the law.
    

JUSTICE ROMA