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Court of Appeal of Samoa |
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IN
THE COURT OF APPEAL OF SAMOA
HELD AT
APIA
BETWEEN:
THE
ATTORNEY-GENERAL
OF
SAMOA
Appellant
AND
FAAVAOGA
SIAOSI MATALAVEA
Respondent
Coram:
Honourable Justice Baragwanath
Honourable Justice Salmon
Honourable
Justice Paterson
Hearing: 03 September 2007
Counsel:
P Chang and A Lesā for
Appellant
S Leung Wai for Respondent
Judgment: 14 September
2007
JUDGMENT OF THE COURT
Introduction
1.
The Attorney-General appeals under s164L of the Criminal Procedure Act 1972
against a sentence of two years imprisonment on a charge of manslaughter. In
fixing the term the learned Chief Justice took into
account, as well as a guilty
plea, the completion by the families of the victim and the offender of a process
of ifoga.
The
offending
2. On the night of 14 July 2005 Mr Matalavea and his
wife were at a dance at the RSA nightclub in Apia. They had consumed four or
five bottles of beer by the time Mr Esau Pulotu and a friend arrived between
nine and ten o’clock. Mr Pulotu, who was not known
to Mr Matalavea,
complained to Mrs Matalavea about some incident of an investigation she had
performed in the course of her work
for Treasury. The Chief Justice accepted Mr
Matalavea’s account that Mr Pulotu had been drinking and was intoxicated.
Mr Matalavea
offered Mr Pulotu a bottle of beer and asked him to leave. Mr
Pulotu aimed a blow at Mr Matalavea’s head with another bottle.
Mr
Matalavea responded in anger. First he punched Mr Pulotu in the mouth, causing
him to fall to the floor. He then struck Mr Pulotu
twice on the top of his head
with the leg of a metal stool which caused two serious injuries. Mr Pulotu died
a few minutes later.
Personal
circumstances
Mr Pulotu and his family
3. Mr Pulotu was 41 years of age at the time of his death
and was employed as a forklift operator. He leaves a widow and four children.
The extent of their tragic loss is obvious and continuing. Additional to the
grief at the loss of a loved husband and father is loss
of the security provided
by the breadwinner of the family.
4. The Chief Justice described as a
notable feature of the case the magnanimity of Mr Pulotu’s family. Their
sa’o (principal
matai) wrote to the Court to confirm that reconciliation
had been achieved following the traditional
ifoga process and they have exhibited
total forgiveness of Mr Matalavea, supporting a merciful approach by the Court.
Indeed the sa’o
invited the Chief Justice to consider a non-custodial
sentence.
Mr Matalavea and his family
5. Mr Matalavea is now 46 years of age, married with three
children. He suffers from diabetes and high blood pressure. As a result
of the
present charge he resigned his high office as Principal Research Officer of the
Ministry of Agriculture where he had been
employed for more than twenty years.
His academic qualifications include a degree in science, a diploma in
agriculture and the bulk
of a postgraduate diploma in that subject. References
from responsible sources recount Mr Matalavea’s personal qualities.
The process of ifoga and the sentence
of the Supreme Court
6. In performing their side of the
ifoga process Mr Matalavea’s
family presented to Mr Pulotu’s family fine mats and cash of $10,000. They
contributed to his
lau’ava ten
cattle beasts, forty boxes of canned fish, a large pig and thirteen fine mats
together with a further payment of $10,000. The
total value of the items
presented was of some $40,000. The Chief Justice accepted that Mr Matalavea and
his family exhibited complete
remorse.
7. The Chief Justice regarded as a
fact aggravating the original punch by Mr Matalavea his picking up the stool and
hitting Mr Pulotu
on the head with it when he had fallen to the
ground.
8. He placed especial weight as mitigating factors on the
performance of the ifoga process and
the generous acceptance of it by Mr Pulotu’s family as achieving
reconciliation.
9. He noted as other mitigating features the element of
provocation by Mr Pulotu, the absence of premeditation, co-operation with
the
authorities and the immediate plea of guilty once an original murder charge had
been reduced to manslaughter. He recorded also
Mr Matalavea’s previously
unblemished character and work record.
Submissions
Appellant
10. Counsel for the Attorney-General submitted that
excessive weight had been placed on the
ifoga and reconciliation aspects of
the case and that as a result the sentence was out of line with other
authorities. They contended that
the unhappily large number of cases since 2006
– no fewer than seven were cited – shows the need for deterrence in
sentencing
policy. They submitted that the English Sentencing Guidelines
employed in Ausage should be applied
in this case and invited this Court to impose a sentence with a final result of
no less than 5 years
imprisonment.
Respondent
11. Counsel for the respondent submitted that a starting point of
5-6 years was appropriate but that the two year ultimate sentence
was within the
range open to the learned sentencing judge.
Analysis
Approach
12. As well as engaging the general public interest in
balancing the competing values, which include denunciation, deterrence and
also
rehabilitation, this case presents three outstanding features. The first is the
unlawful assault which in causing the loss of
Mr Pulotu’s life has exposed
Mr Matalavea to liability to a term of life imprisonment. The second is the
proper weighting the
performance of ifoga
and the magnanimity of Mr Pulotu’s family should receive. The third
is that the Courts are responsible to the people of Samoa
for delivery of the
justice required by law, which comprises both statute law, including the Crimes
Ordinance 1961 and s8 of the Village Fono Act 1990, and, by s3 of the Judicature
Ordinance 1961, common law and equity. The common law of Samoa includes the
traditional process with the participation of the families of the offender
and
the victim. But, as the Chief Justice has demonstrated by the sentences he has
imposed over the years, it is far from limited
to that: the legislation enacted
by Parliament is of prime importance. As the Attorney-General submits, care must
be taken to avoid
any notion that the better-off can buy their way out of the
penalties for criminal offending that other members of the community
must face.
Justice must both be done and be seen to be done, not only as between the
families but within the wider community.
13. It is the role of an
appellate court to balance local values with settled fundamental principles of
justice. Where fundamental
principle is not maintained the appellate court will
intervene. An example is the decision of the Privy Council in
R v Taito [2003] 3 NZLR
577 where New Zealand’s system
for dealing with criminal appeals was held not to meet the standards which New
Zealand and the United
Kingdom share and which in Samoa have the protection of
the Constitution.
14. This Court will accord particular weight to the
sentencing patterns selected by the judges of the Samoan courts who are versed
in the standards and traditions of Samoan society. It will also look at trends
in other states of the common law which those judges
are accustomed to
consider.
Sentencing approach
15. In order to compare this case with others we adopt the
now conventional approach of identifying a starting point for the conduct,
viewed objectively without reference to Mr Matalavea’s personal
circumstances, before turning to those factors as well as others
relied on in
mitigation. That is the practice adopted in R
v Taueki [2005] 3 NZLR 372
(CA).
The criminality
16. It is necessary to identify what the authorities term
"the precise criminality" of the offender: R
v Meroiti CA 392/99 26 October 1999 at [6] citing
R v Duffy (1994) 15 Cr App (S) 677 at
681.
17. Here the initial blow by Mr Matalavea, to Mr Pulotu’s
mouth, was struck at least under provocation and possibly in self-defence
from
an apprehended blow from a bottle. Mr Matalavea is entitled to the benefit of
any doubt on that score. The presence of his wife
and his obligation to protect
her may be taken into account in his favour. The evidence did not establish the
precise causation of
Mr Pulotu’s death. Counsel told us that the floor of
the RSA was of concrete; it may well be that injury to the head contributing
to
the death resulted, as so often, from the fall. It is only for the excess force
beyond what he may reasonably have believed necessary
for self-defence for which
Mr Matalavea is legally responsible. The prosecution has not excluded as a
reasonable possibility that
the punch was required for that purpose.
18.
But once Mr Pulotu had struck the ground there could be no justification for the
further violent attack on him using the metal
stool as a weapon. The use of the
table leg went far beyond self-defence and the two serious injuries that
resulted undoubtedly contributed
to the death, as Mr Matalavea acknowledged by
his plea of guilty to manslaughter. If it be the case that such liquor as Mr
Matalavea
had consumed affected his normally reliable judgment and led him to
overreact to Mr Pulotu’s conduct, that is in law of no
assistance to him.
We note too his failure to show any immediate remorse. He left the premises and
offered no immediate assistance
to the victim.
The authorities
19. Until recently in Samoa, as in New Zealand, the courts
had tended to fix the final sentence after discussion of aggravating and
mitigation factors but without specific discussion of what starting point would
have been adopted without those factors.
20. In
Faafua (Vili) v Police [1980-1993] WSLR 550 this Court noted that the then highest recent sentence for manslaughter
had been for a term of three and a half years. For what was
described as a very
serious offence attended by an element of provocation a term of four and a half
years was substituted for the
six year term imposed by the sentencing judge. The
decision may suggest a starting point of perhaps six years before allowance for
mitigation. The Court gave notice that, in the future, crimes of violence
causing death would attract more severe penalties. That
has proved to be the
case.
21. In Attorney-General v
Mani [1994] WSCA 16 on an Attorney-General’s appeal this Court
substituted a three year prison term for a $1000 fine imposed by the Supreme
Court
for a manslaughter committed at a party. There are certain similarities
with the present case. The deceased had been an aggressor,
running at a guest
with a machete. The respondent intervened as a peace maker and was struck on the
leg with the weapon. The violence
subsided temporarily but the deceased then
made to get another machete and the respondent got hold of a shotgun. Both men
were disarmed
but the respondent then recovered the rifle and struck the
deceased twice on the head with it, using such violence as to break the
butt.
The respondent was immediately remorseful, doing what he could to help the
deceased and pleading guilty. This Court noted that
"With the families the
matter has already been settled" but did not elaborate. In addition the
respondent’s family was fined
by the Village Council and provided the
village with 5 cartons of herrings and 10 boxes of biscuits. The Court referred
to s 8 of
the Village Fono Act which requires the Court to take such penalties
into account. It recognised the point, of relevance to the present
case, that
because of the presumption in favour of liberty the Court will less readily
intervene on an Attorney-General’s appeal
than on that of a defendant.
Again in current parlance a starting point of perhaps six years is
suggested.
22. In Police v
Tautunu [2006] WSSC 31 the Chief Justice adopted the technique of
starting point, there of 5 years for a blow with a piece of timber to the head
of a boy.
That was reduced to 3 years to recognise mitigating factors which
included the traditional ifoga,
including presentation to the family of the deceased of money and other items to
a value of some $10,000. Reconciliation between
the families had been achieved.
The Chief Justice analysed a number of recent manslaughter sentences, including
three of his own.
He noted that the wide range of different circumstances had
led to a spread from probation to 5 years imprisonment.
23. The
last-mention decision was Police v Sione
[2006] WSSC 6 where, following provocation by stone throwing, the accused
attacked the deceased with a machete causing five deep lacerated wounds
including two to the head. The provocation, a prompt plea of guilty, punishment
by way of banishment and burning of the accused’s
properties led to a
sentence of five years imprisonment. The notional starting point may have been
of the order of eight years.
24. In
Police v Aisea [2006] WSSC 47, where
following a guilty plea the Chief Justice imposed a 5 ½ year sentence for
manslaughter using a concealed knife, he emphasised
the retribution and
deterrence aspects of sentencing. Referring to the fact that in the past seven
years the longest custodial term
for manslaughter had been the 5 years in
Police v Tautunu he observed that the
range of sentences would require to be reviewed soon. The notional starting
point may again have been about eight
years.
25. Recently in
Police v Ausage (30 April 2007)
following a guilty plea the Chief Justice sentenced to 5 ½ years
imprisonment a jealous husband who killed his
wife in circumstances entailing
substantial provocation and where
ifoga was required to be taken into
account. He considered New Zealand authority and the English Sentencing
Guidelines "Manslaughter by
Reason of Provocation". He used an 8 year starting
point and added 9 months for aggravating factors.
Ifoga
26. According to authority cited by Cluny and
La’avasa MacPherson "The Ifoga:
the Exchange Value of Social Honour in Samoa" Journal of the Polynesian Society
Vol 114 Issue 2 June 2005 page 109, the word
ifoga means a ceremonial request for
forgiveness made by the offender and his aiga
(family) to those injured. It is performed by public act of
self-humiliation, accompanied by the gift of fine mats, speeches and food.
Its
practice, recognised by the Chief Justice in
Police v Tautunu, is a powerful
institution for reconciliation. It has been acknowledged also by the New Zealand
courts in respect of serious disputes
among New Zealanders of Samoan descent:
R v Talataina (1991) 7 CRNZ 33 (CA);
R v Maposua [2004] NZCA 212. It is a
sophisticated and established method of reconciliation which includes the
provision of amends now recognised in simple form
by s 10 of the New Zealand
Sentencing Act 2002, discussed by the present Chief Judge of the High Court,
Randerson J, in Zhao v The Police HCHM
AP 32/03 6 June 2003.
27. As an institution for restoring relations among
the wider family groups the purpose of
ifoga overlaps with but does not
supersede the court-based processes of the criminal law. Care must be taken by
the Court to steer the
narrow passage between disregarding
ifoga’s valuable role as a
contributor to reconciliation in Samoan society and, as counsel for the
Attorney-General submitted, placing
such weight upon it as would permit
preferential treatment of those whose families can compared with those who
cannot perform ifoga.
This case
28. We have noted that the prosecution cannot exclude that
the blow causing Mr Pulotu’s head to strike the concrete floor was
struck
in self-defence. Stripping out both the prior provocation and that first blow we
consider that after a defended hearing a
term of no less than six years
imprisonment would be required for the two serious head injuries. We record that
we respectfully endorse
the approach adopted by the learned Chief Justice in
manslaughter sentencing of concurrently monitoring the needs of Samoa, which
may
entail periodic review of sentencing levels and their relationship to patterns
of offending; reviewing international trends;
and ensuring justice both to the
prosecution and the defence in a particular case. It should be noted that, while
reference to the
English Sentencing Guidelines "Manslaughter by Reason of
Provocation" was appropriate in Ausage
it is not apparent to us that the present case falls within them. The
prosecution summary did not clearly assert facts demonstrating
that this was
what would, in England, have been a murder case reduced to manslaughter by
reason of provocation. Here the relevance
of the Guidelines is by way of analogy
only.
29. There are no facts personal to Mr Matalavea that would
aggravate the sentence from its starting point. The fact of his superior
education and experience does not do so, although it may limit the mitigation
available in response to provocation.
30. Turning to mitigation, the
sequence of events was rapid; the criminal offending, while grave, followed
closely on the blow in
self-defence. There was therefore provocation of the
later blows which provides partial mitigation: a threatened attack by a man
in
liquor with a bottle gives rise to reasonable apprehension of grave injury or
death. The context that the threat related to performance
of her public duties
by Mr Matalavea’s wife accentuated the provocation; concern for her safety
is a factor of relevance. We
accept from his admirable past record, itself a
mitigating factor, that Mr Matalavea was acting impulsively rather than in his
usual
rational manner, although the fact that his education and experience
should have assisted him to restrain himself is also a consideration.
31.
Further mitigation is provided, as the Chief Justice observed, by the later
assistance to the authorities and the prompt guilty
plea.
32. Credit is
also due for the accepted performance of
ifoga which was carried out in
substantial measure and with heartening results.
33. Finally, as was
emphasised by Lamer CJ in R v M (CA)
[1996] 1 SCR 500 at [91] and by McCarthy P in
R v Wihapi [1976] 1 NZLR 22 at p 424,
the sentencing judge retains a residual authority to display mercy. The
troubling effect of the events
on the young daughter of Mr Matalavea is one of
the many grave consequences of this episode. But the right to exhibit mercy does
not relieve this Court of its responsibility.
34. We do not consider that
the mitigating factors, including the process of
ifoga, can carry such weight in the
overall judgment as to increase what might otherwise be a 30% reduction for
mitigation to a 2/3 (four
year) decrease in the starting sentence. But for the
post-trial history of this case we would have regarded such reduction of the
six
year starting sentence as excessive; two years’ reduction would have
sufficed. The fact that this is an Attorney -General’s
appeal would
justify a further reduction of one year, which would coincide with the three
year sentence in Attorney-General v
Mani.
35. Here however we have the additional fact that Mr
Matalavea returned to the community nearly four months ago - on 19 May 2007.
While the Attorney-General’s notice of appeal was filed promptly - on 7
June 2006 following the sentencing on 19 May 2006 –
the prospect of return
to prison for a further five months would entail a continued penalty which, with
an original three year sentence,
would now be almost completely
served.
Conclusion
36. We
are satisfied that this was a sentence which warranted review by this Court. The
Attorney-General has made out the contention
that gave rise to the appeal. But
in the particular circumstances it would be disproportionate to recall Mr
Matalavea to continue
serving his sentence.
37 The appeal is therefore
dismissed.
Honourable Justice Baragwanath
Honourable Justice Salmon
Honourable Justice Paterson
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