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Police v Tovia [2024] WSSC 3 (2 February 2024)

IN THE SUPREME COURT OF SAMOA
Police v Tovia [2024] WSSC 3 (02 February 2024)


Case name:
Police v Tovia


Citation:


Decision date:
02 February 2024


Parties:
POLICE (Prosecution) v TOMA AKUINO TOVIA, male of Moamoa & Palisi (Defendant)


Hearing date(s):



File number(s):



Jurisdiction:
CRIMINAL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Niavā Mata Tuatagaloa


On appeal from:


Order:
The defendant is accordingly convicted and sentenced to 4 years’ and 10 months imprisonment, less time in custody (if any).


Representation:
T. Fesili & J. Leung-Wai for Prosecution
M. Lui for the Defendant


Catchwords:
Manslaughter – father/son (defendant/victim) – custodial sentence – .disciplining children – physical abuse – domestic relationship – breach of trust.


Words and phrases:


Legislation cited:


Cases cited:
Police v Afele Tiatia Laumatia (Unreported judgment dated 09 June 2022);
Police v Fiva [ 2008] WSSC 89 (28 October 2008) per CJ Sapolu; see also R v Raipira [2003] NZCA 217; [2003] 3 NZLR 794;
Police v Lala [2023] WSSC 32;
Police v Savelio Aukusitino [2013] WSSC 11;
Police v Tutogi [2007] WSSC 6 (15 February 2007);
Police v TT [2021] WSSC 5.


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Prosecution


AND:


TOMA AKUINO TOVIA, male of Moamoa & Palisi.


Defendant


Counsel: T. Fesili & J. Leung-Wai for Prosecution
M. Lui for Defendant


Sentencing: 2 February 2024


SENTENCING OF TUATAGALOA J

  1. The defendant appears for sentencing on one charge of manslaughter, which carries a maximum penalty of up to life imprisonment,[1] resulting in the death of Tovia Junior Toma.
  2. Before I proceed with sentencing I issue the coronial finding as follows. I find that the deceased, Tovia Junior Toma, a 12 year old male of Palisi died on 19th December 2022 at Moto’otua Hospital from (i) severe cerebral edema with tonsillar herniation; and (ii) severe traumatic head injury with intra-cranial haemorrhage as a result of blunt force trauma suffered by him as a result of being hit on the head with the handle of a broom (salu lima).

The Offending

  1. The summary of facts (“SOF”) was read out and accepted by the defendant and his counsel. On the evening of 15th December 2022, the defendant drank kava with some friends and at around 10pm the friends left and the defendant asked the victim, his 12 year old son, to go boil the kettle for some tea for him and his wife. The defendant heard the victim arguing with his older sister and he called out to the victim to stop being cheeky but the victim carried on and threw a spoon inside the kitchen sink causing a racket. This angered the defendant and he slapped the victim twice causing the victim to fall to the ground. The defendant did not stop but got hold of a broom (salu lima) and using the wooden handle of the broom wrapped with black rubber struck the victim on his back three times. The fourth strike landed on the victim’s head. The next day (16th December), the defendant asked the victim if he wanted to go to the hospital but the victim did not respond and the defendant left for work. According to the summary of facts the defendant’s wife noticed that the victim stayed in bed the whole day. Later on in the evening, the defendant complained to his parents (defendant and wife) that the back of his head was sore. The defendant massaged the victim’s head and gave him Panadol’s. The following day (17th December) the defendant told his wife to take the victim to the hospital whereby the victim was admitted and said to be in a critical condition. On 19th December 2022 the victim passed away in the Intensive Care Unit (ICU).
  2. According to the SOF and pre-sentence report (“PSR"), the victim was assaulted on Thursday night (15th December), was unconscious on Saturday, 17th December and when admitted was in a critical condition and passed away on Monday, 19th December 2022, just before Christmas.

The injuries

  1. A post mortem[2] was carried out on 22nd December 2022 and the cause of death was due to:

The Defendant

  1. The defendant is a 39 year old father of six who currently resides with his wife and five children at Palisi. He completed school at Year 12.
  2. To provide for his family, the defendant gained employment on the seasonal scheme to New Zealand. This has been halted due to this matter. However, three of his older children are employed and help support the family financially.
  3. The defendant and his family have apologised to his wife and her family for what has happened and this is confirmed by the wife in the victim impact report (VIR). The wife accepted that what happened, on the defendant’s part, was not intentional resulting in the death of their child.
  4. In the defendant’s PSR, the defendant confirmed that he was angered when he heard the victim arguing and uttering harsh words to his older sister and for throwing things into the sink. The defendant also confirmed slapping the victim twice on the face causing him to fall down and he then used the broom to hit the victim on his back three times with the fourth strike landing at the back of his neck. According to the PSR and correlating with the SOF, the defendant said that the victim was taken to hospital on Saturday when he became unconscious. The victim passed away on the Monday, 19th December.
  5. I have read the character references in support of the defendant from his wife, the Sa’o of his family, the Catholic catechist and pulenuu who all spoke of the defendant as a hard working, humble and reliable person.

The Victim

  1. The following is the only information the Court obtained from the SOF, PSR and VIR. The deceased is the defendant’s son; he is the fourth of the defendant’s six (6) children; he was 12 years of age at the time of his death and his death has no doubt had a devastating impact on his family and especially his father, the defendant.

Prosecution submissions

  1. Prosecution submits that this matter does not warrant a departure from the imposition of a custodial sentence that is often imposed in cases of manslaughter when it involves defenseless and vulnerable children. Prosecution place emphasis on section 8 of the Sentencing Act 2016 which makes special provision for the sentencing of offenders who commit acts of violence against children; and that the offending was committed within a domestic relationship pursuant to section 17(1) of the Family Safety Act 2013 with the victim being the defendant’s biological son.
  2. Prosecution seeks for a sentence that strongly sends a message of deterrence from this type of offending that continues to affect the lives of the most vulnerable of our society and at times proves to be fatal as in the present matter. Deterrence sought by Prosecution is by way of a custodial sentence.
  3. Prosecution referred the Court to various sentencing cases of similar circumstances in particular Police v Savelio Aukusitino,[3] Police v Afele Tiatia Laumatia,[4] Police v TT[5] and seeks an imprisonment term with a start point of at least 9 years’ imprisonment.

Defence Counsel Submissions

  1. Counsel for the defendant distinguish the present case from the sentencing authorities referred to by the Prosecution and said of their similarities with the present case are that the (i) defendant is a parent; (ii) the victim is either a biological child or a nephew; (iii) the victims were between 12-14 years old and; (iv) the victims died from severe head injuries. Counsel distinguish the present case by saying that the gravity of offending in the cases referred to by the Prosecution were much higher than the present matter saying that the defendant in the present matter desist when he realized the risk of his fourth strike landing at the back of his son’s head while the defendants in the cases referred to by the Prosecution did not desist from further assault even though the assault had hit a vulnerable part of the body.
  2. Counsel referred to the case of Police v Lala[6] where the Court imposed a non- custodial sentence as very similar in circumstances to the present case. The age of the victims, the defendants being a parent, there was an argument between the victim and a sibling in a kitchen, the defendant parent got angry, the assault which resulted in death was to the head, a weapon was used, the victim complained of a sore head, the defendant parent attended to the child by massaging the head and gave Panadol tablets, the victim was taken to the hospital.
  3. Counsel for the defendant identified the following as mitigating factors in favour of the defendant. Personal to the defendant are the following:
  4. Mitigating factors to the offending are:
  5. Defence Counsel also asks the Court to consider the personal circumstances of the defendant for he is the breadwinner of his family and if incarcerated, his family and children ultimately pay the price. Counsel submits that a non-custodial sentence is appropriate for the reasons she has advanced but should the Court consider a custodial sentence they submit for the same starting point of 4 years and deductions in Lala apply in the present case.

Discussion

  1. Samoa is a signatory and a leading advocate in the Pacific for the Convention on the Rights of the Child which convention embodies the right of the child to life, survival and development under Article 6. Yet, this is another case where a child has lost his life in the hands of an angry parent. It is always a tragedy when a young life is lost. It is becoming too common the occurrence of children losing their lives at the hands of their parents, mostly out of anger as is with the present matter or from pure negligence and recklessness of the parents. There is a need to protect our children from behaviour that would unnecessarily cost them their lives.
  2. There is a saying in Samoan “o au o matua fanau” (children are the pride of parents). Physical abuse and maltreatment of the children is not being seen for what it is but is seen as a form of ‘discipline’ taken as generally acceptable or allowed by our society as such. This form of discipline should no longer be allowed where the health, safety and life of a child is at risk.
  3. The maximum sentence for manslaughter is imprisonment for life. There is no guideline judgment or tariff for manslaughter sentencing. The sentences imposed by the Court vary from non-custodial sentences of supervision to lengthy custodial sentences due to the varying circumstances in which the offence of manslaughter is committed.[7]
  4. Both Counsels have referred to various sentencing authorities of this Court with the Prosecutions recommending for a custodial sentence with a start point of 9 years and Counsel for the defendant recommending for a non-custodial sentence as appropriate relying on Police v Lala[8]. Except in the case of Lala a custodial sentence was imposed by the Court with the starting points of 9-10 years and end sentences of 5 – 6 years.
  5. It is well understood and accepted that no two cases have the same circumstances and that each case is to be sentenced according to its particular circumstances. I now address the sentencing authorities refer to by Counsels and distinguish them from the present case.
  6. The cases of Police v Tutogi[9], Police v Afele Tiatia Laumatia[10] and Police v TT[11] share the following similarities with the present matter - (i) The defendant is a parent; (ii) the victim is either a biological child or a child with very close familial ties; (iii) The victims were between 12 -14 years of age ; (iv) the victims died from severe head injuries and; (v) a weapon was used.
  7. Apart from those similarities the circumstances (gravity) of offending in those authorities and the present matter are very similar. The assaults carried out by the defendants were deliberate, continuous and specifically aimed at the victims which assaults became fatal. In Laumatia the defendant assaulted the victim by slapping him twice on the mouth, the victim ran away from the defendant and the defendant armed himself with firewood and threw it at the back of the victim’s head and hit him. In TT the defendant armed himself with a rock and walked towards the victim who saw the defendant and ran away. The defendant threw the rock at the victim and hit him on the head. The victim fell down and the defendant walked over with a tree branch and struck the victim twice on the back. In the case of Tutogi the mother (defendant) was angry with her son (deceased) when she discovered that he had been playing “lafo tupe”. She approached the son with a stick and swung at him. The son turned around to run away and the stick hit him on the back of the head. In TT the father (defendant) was angry at his son (victim) for being disobedient and threw a rock at his son who was running away and the rock hit the son on the head.
  8. In Lala the mother (defendant) was cooking when her two daughters (the victim and older sister Aliitasi) argued over a coconut shell; the defendant used the stick she was using to roast the cocoa beans to sasa (beat) the girls for arguing instead of getting the food ready as she had asked them. The stick used was noted by the Court as a thin and short usually used when roasting cocoa beans. Both girls ran away from the defendant with Aliitasi to be the first to run away and the defendant threw a stone at her (Aliitasi) but instead the stone hit the victim who was running behind her sister Aliitasi.
  9. In the present case, the defendant slapped the victim twice on the face causing the victim to fall down. The Court, can infer that the slaps may have been with great force for the victim to fall down. The defendant did not stop when the victim fell down instead he continued by hitting his son on his back with the wooden handle of the broom (salu lima). The wooden handle from the photos taken by the police of the broom is the hard part of the broom and, we, Samoans, are all aware of it. The defendant did not just deliver one strike to the victim’s back but three with the fatal fourth strike landing at the back of the victim’s head when he changed position on the ground.
  10. In Police v Tutogi [12] Sapolu CJ states:
  11. The gravity of the offending in the present case is much more serious than that in Lala albeit that both resulted in deaths. I agree that a stern message of deterrence needs to be sent out. Too many young lives are lost unnecessarily at the hands of parents who cannot control their anger. In the circumstances of this offending a custodial sentence is warranted.
  12. I find no aggravating factors personal to the defendant and accept the following as aggravating features of the offending:
  13. In respect of the offending, I accept as mitigating the following:
  14. Personal to the defendant is his prior good character and the reconciliation with his wife and her family. I accept without a doubt that the defendant truly regrets what he did. Although he was angry with the victim at the time did not intend to cause death to his son. His not being able to control his anger has resulted to his son’s death, something that he will have to live with for the rest of his life. The defendant’s guilty plea is evidence of his genuine remorse and acceptance of his wrongdoing. I accept that the defendant realised the risk of his fourth strike and had stopped but was too late. If he was so concerned about his son, he should have taken him to the hospital when he stopped or when he complained that his head was in pain, instead he was only taken to hospital when he became unconscious at home on the second day after the beating.
  15. Defence Counsel also asks the Court to consider the personal circumstances of the defendant for he is the breadwinner of their family and if incarcerated, his family and children ultimately pay the price. This is common amongst Samoan families with the father as the sole earner providing for his family. If we are to place much weight on this as a mitigating factor then, most defendants in similar circumstances will be easily let off by the Court. Furthermore, the PSR has three of the defendants’ older children in employment.
  16. I echoed what I said in the case of Lala that I am in no doubt that the defendant truly regrets that day and would be thinking “if only”. I hope the defendant will be able to forgive himself for he has no one to blame but himself that his not being to control his anger has cost his son his life. That in itself is punishment for the defendant.
  17. In the circumstances of this offending, I find the start point of 9 years recommended by the prosecution to be appropriate. In offending of this nature where a parent (without intention) was responsible for the death of a child, I place much weight on remorse for no parent wants to cause the death of his/her own child and deduct 12 months; further 12 months for being a first offender and for the supportive references that speak of prior good character and 6 months for the apology to his wife and the wife’s family. This leaves 78 months’ or 6 years and 6 months. I give 25% discount for the guilty plea which amounts to 20 months. The end sentence is 58 months or 4 years and 10 months.

Sentence Imposed

  1. The defendant is accordingly convicted and sentenced to 4 years’ and 10 months imprisonment, less time in custody (if any).
  2. Let this be a reminder to parents or anyone who are physically abusing the children that they must always be mindful of the consequences of their actions. The Courts will not tolerate any behaviour that will place at risk the life of a child.

JUSTICE TUATAGALOA


[1] Crimes Act 2013, ss. 92, 102, 108.
[2] Forensic Pathologist Report, dated 22 December 2022.
[3] Police v Savelio Aukusitino [2013] WSSC 11.
[4] Police v Afele Tiatia Laumatia (Unreported judgment dated 09 June 2022).
[5] Police v TT [2021] WSSC 5.
[6] Police v Lala [2023] WSSC 32.
[7] Police v Fiva [2008] WSSC 89 (28 October 2008) per CJ Sapolu; see also R v Raipira [2003] NZCA 217; [2003] 3 NZLR 794.
[8] Police v Lala [2023] WSSC 32.
[9] Police v Pemita Tutogi [2007] WSSC 6 (15 February 2007).
[10] Police v Afele Tiatia Laumatia 9 July 2022 (unreported).
[11] Police v TT [2021] WSSC 5 (19 February 2021).
[12] Police v Tutogi [2007] WSSC 6 (15 February 2007).

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