Police v Mamea [2024] WSSC 9 (15 March 2024)

IN THE SUPREME COURT OF SAMOA
Police v Mamea [2024] WSSC 9 (15 March 2024)

Case name:	Police v Mamea
Citation:	[2024] WSSC 9
Decision date:	15 March 2024
Parties:	POLICE (Informant) v IOELU MAMEA, male of Saasaai Savaii (Defendant)
Hearing date(s):	5th – 7th December 2023
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 of manslaughter and sentenced to 2 years and 7 months, less any time in custody.
Representation:	L. Sio-Ofoia for Prosecution I. Sapolu for the Defendant
Catchwords:	Manslaughter – threw a rock & hit victim – ifoga carried out – provocation – first offender – domestic violence – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 92; 102; 108; Family Safety Act 2013, s. 17.
Cases cited:	Nepa v Attorney General [2010] WSCA 1; Police v Matalavea [2006] WSSC 30.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

IOELU MAMEA, male of Saasaai, Savaii

Defendant

Counsel: L. Sio-Ofoia for Prosecution

I. Sapolu for the Defendant

Sentence: 15 March 2024

SENTENCING OF TUATAGALOA J

The charges

1. Ioelu Mamea appears for sentence on the charge of manslaughter which penalty is maximum life imprisonment^[1] having vacated his not guilty plea after the prosecution had called ten witnesses over a period of two and half (2 ½) days.

The offending

2. The circumstances of the offending is very unfortunate. In brief, the defendant is the deceased’s brother in law. On Monday 19^th December 2022 the defendant, deceased, deceased’s older brother and a cousin were in the outside kitchen cleaning and preparing a pig and cooking food for the evening meal; at the same time, they were drinking alcohol. At some point, the defendant went to remove the pot of rice from where it was being cooked to take to the front house. The deceased told the defendant to leave it but the defendant did not listen. As a result, the defendant tripped and spilled the pot of rice. This angered the deceased and the pair got into an argument. The deceased’s mother heard the argument, walked over and led the defendant away from kitchen to the front house. Whilst being led away the defendant continued to yell at the deceased and then he swore. The deceased heard this and was not happy because the defendant swore while being led away by his mother. The deceased followed behind the defendant and his mother. The defendant saw the deceased grab a rock and threw it at him. The rock hit the deceased and caused him to fall down, and then the defendant walked over and had a scuffle with the deceased. The deceased’s older brother and cousin separated the deceased and the defendant and were each led away separately. The deceased vomited blood and collapsed at the back of the house. He was rushed to the Tuasivi Hospital and was pronounced dead upon arrival.
3. The defendant in his Pre-sentence report (PSR) admitted to having thrown the rock at the deceased but said that he did not know where it landed. The evidence that was heard from the deceased’s mother who led the defendant away was that the deceased was only meters away from them when she saw him (deceased) fall down when hit with the rock.

The deceased

4. A post mortem was carried out on 21^st December 2022. The Pathologist’s findings as to the cause of death was due to severe blunt force chest trauma.
5. In plain language the victim died from severe chest injuries. The pathologist noted a circular or dented oval shape in the chest area of the deceased consistent with that observed by Dr Persia Petaia, the attending doctor on duty at Tuasivi Hospital when the deceased arrived there. The dented oval shape injury is, consistent with the use of the rock by the defendant he admitted to throwing at the deceased as relayed in the PSR and as in the summary of facts by the Prosecution.
6. The deceased was 29 years old and single. The defendant’s wife is the sister of the deceased.

Defence in mitigation

7. Counsel submitted the following in mitigation:
   • (i) The defendant’s family has performed an ifoga to the deceased’s family at Samalaeulu where he was living at the time and where the offending took place.
   • (ii) Truly remorseful – The defendant is said to be truly remorseful and his actions were out character that has unfortunately resulted in personal loss to his family;
   • (iii) Provocation – the offender was provoked when the deceased was upset with him;
   • (iv) Time remanded in custody; and
   • (v) Pleaded guilty during trial.
8. Counsel for the defendant refers to various sentencing authorities with similar circumstances and recommended that 2 or 2 ½ years starting point to be appropriate.

Prosecution submissions

9. Prosecution submitted the following aggravating factors of the offending:
   • (i) Defendant is a first offender;
   • (ii) The offending was one of domestic violence pursuant to section 17 of the Family Safety Act 2013;
   • (iii) Loss of human life;
   • (iv) The use of a weapon (a rock);
   • (v) The defendant instigated or cause the deceased to approach him when he swore whilst being led away by the deceased’s mother;
   • (vi) Harm caused by the offending to both the deceased and his family;
   • (vii) The nature of the unlawful act in that the defendant threw the rock at the deceased’s upper body, hitting the deceased on the chest.
10. Prosecution referred to various sentencings on manslaughter and the range of penalties imposed by the Court. They recommend a starting point of eight (8) years saying that although the Court in the last ten years have adopted a lesser starting point than this, in cases more horrifying and extreme than the facts of this case, the Court must take a more stern and strict approach especially with the increase in cases involving loss of life becoming more frequent on the court list.

Discussion

11. There is no doubt that the level of violence where death resulted is substantial. Where an offending resulted in the loss of life, the starting point is a custodial sentence unless there are exceptional circumstances warranting a non-custodial sentence. There are no exceptional circumstances warranting departure from a custodial sentence. The Court must hold the defendant accountable for his actions.
12. The use of a rock is perhaps the most common weapon in this country resulting in injury or death. It was obvious that the defendant was under the influence of alcohol and was still angry at the deceased thus the reason he got hold of a rock and threw it at the deceased. Anger fuelled 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 excuse for one’s criminal behaviour or used as a defence.
13. As mentioned earlier, the defendant and the deceased are in-laws and the offending took place at home placing it in the context of domestic violence pursuant to section 17 of the Family Safety Act 2013. I accept that the defendant threw the rock at the deceased oblivious of where it landed, but the injury sustained resulting in death shows the force used by the defendant when he threw the rock, and the impact of the rock on the deceased was substantial reasonably infers close distance when the rock was thrown.
14. There is no doubt that the defendant truly regrets his behaviour and probably thinking that ‘if only’ but it is too late for what is done, is done and he will have to live with the knowledge that his behaviour resulted in the death of his wife’s brother. I place very little weight on the late change of plea. The defendant changed his plea after the prosecutions had closed its case having called ten (10) witnesses. The defendant was armed with a dangerous weapon and was using insulting words that although he was not charged with was part of his present offending. The defendant is a first offender.
15. In favour of the defendant, I accept that he is remorseful, and the ifoga by the defendant’s family to the deceased’s family. I do not accept provocation as a mitigating factor or that it was present at the time of the offending. The defendant was removed from the kitchen and was led by his mother-in-law to the front house. The defendant swearing in the presence of one’s parent is frowned upon in the Samoan society as it’s disrespectful.
16. For Counsel’s information being remanded in custody is not a mitigating factor personal to the defendant nor a mitigating factor of the offending. As conveyed in the written testimonial provided by the Bishop of LDS church on behalf of the defendant, spoke of the defendant as “a worthy member of their church who lives a faithful life”. I question the truth of this testimonial as alcohol is not allowed by the LDS church. I place very little weight on this written testimonial but for the effort.
17. I can only imagine what the deceased’s parents are going through especially the mother who was present throughout this whole altercation; the grief of a parent when they lose a child unexpectedly. The 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.^[2] In the circumstances of this offending a custodial sentence is appropriate.
18. Both Counsels have referred to various sentencing authorities on manslaughter and have rightly acknowledge that there is no sentencing guideline for the offence of manslaughter for the circumstances of each offending varies greatly. This is obvious with the sentencing submissions and the difference in the starting points recommended by Counsels. No two cases are the same; each case is to be sentenced according to its particular circumstances.
19. I find appropriate the starting point of 5 years and make the following deductions – twelve (12) months for first offender status, six (6) months for the ifoga, six (6) months for remorse, one (1) month for the effort in the written testimonial provided. This leaves 35 months or 2 years and 11 months. I will allow for 10% discount of 4months for the late change of plea. The end sentence is 31months or 2 years & 7months.

Sentence imposed

20. The defendant is convicted of manslaughter and sentenced to 2 years and 7 months, less any time in custody.
    

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, ss. 92, 102, 108.
^[2] Police v Matalavea [2006] WSSC 30 per CJ Sapolu; see also Nepa v Attorney General [2010] WSCA 1.