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Police v Pili [2005] WSSC 9 (8 August 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

MATIASI TOGAFAU PILI,
male of Saleapaga and Tiavea-uta.
Accused

Counsel: K Koria for prosecution
RT Faaiuaso for accused

Sentence: 8 August 2005

SENTENCE OF SAPOLU CJ

The charge

The accused was originally charged with the crime of murder to which he had pleaded not guilty. Subsequently, that charge was amended to one of manslaughter which carries a maximum penalty of life imprisonment. To the amended charge the accused has entered a plea of guilty.

The offending

The brief facts of this case are to be taken from the summary of facts prepared by the prosecution and confirmed by the accused. This will be supplemented with a few non-controversial details, as will be indicated, from the pre-sentence report prepared by the probation service.

According to the pre-sentence report prepared by the probation service, the accused is from the village of Tiavea-uta but at the time of the offence for which he is now appearing for sentence, he was staying with relatives at the village of Saleapaga attending the Lepa and Lotofaga College. The accused usually returned to his family at Tiavea-uta during the week-ends.

On Saturday night, 30 October 2004, the accused and one of his cousins had just returned to their home at Saleapaga after picking flowers for decorating their church on Sunday when the accused heard the deceased, a 20 year old male of the same village, with whom he had an argument the previous day, called out his name. When the accused came out of his family’s house, he saw the deceased standing at the main road calling out his name. He then walked over to the deceased and when he reached the deceased, the deceased threw a punch at him. The accused stepped aside and managed to avoid the punch. The deceased lost his balance from his own punch and fell over but was able to use his hands to stop himself from hitting the ground. The deceased at the time was drunk. It is not clear whether the accused knew that the deceased was drunk. When the deceased stood up, the accused punched him on the left side of his face causing the deceased to fall backwards and hit the ground. The accused then walked away while the deceased was lying on the ground. Soon afterwards, according to the report by the probation service, the accused and his cousins went to where the deceased was lying and carried him to their house where the deceased started to regain consciousness. The accused and one of his cousins then gave the deceased a shower and later took the deceased in their family’s pick-up vehicle to his uncle’s home. Unfortunately, the deceased died the following night at the Lalomanu district hospital.

The accused

At the time of the offence, the accused was 17 years of age and attending the Lepa and Lotofaga College at Year 12. Since this incident, he has been attending one of the colleges in Apia at form 6. He is now 18 years of age. He is a first offender.

The testimonial provided by the pastor of the Methodist Church of Tiavea-uta, the village of the accused, shows that the accused is a quiet, peaceful, well-behaved and honest young man. He is a frequent churchgoer and a member of the church choir, church youth organisation and Sunday school. In other words, he is an active member of his church. The accused is expected to enter the Methodist Theological College at Piula next year when he finishes school at the end of this year. Whether or not the Methodist Church will still accept the accused into its theological college following this incident is not clear. The testimonial from the pulenuu (mayor) of the accused’s village also shows the accused as a well-mannered, polite and trustworthy young man. The accused’s father also told the probation service that his son is well-behaved, respectful, dependable and trustworthy. Thus, it would appear that the incident with which the accused has been charged is totally out of character.

The accused’s family had also performed a ifoga (traditional formal apology) and it was accepted by the family of the deceased. The accused’s family had also presented a large pig and thirty boxes of tinned fish to the family of the deceased for the deceased’s funeral ‘lauava’. A presentation of two cattle beasts and thirty boxes of tinned fish was also made by the accused’s family to the village council of Saleapaga, the village where this incident occurred. Thus the incident that occurred has been settled between the family of the accused and the family of the deceased, and between the family of the accused and the village of Saleapaga. This is all part of what is now commonly referred to as ‘restorative justice’.

Mitigating features

There are a number of mitigating features in this case. These are the accused’s plea of guilty to the charge of manslaughter when the charge of murder with which he had been originally charged and to which he had pleaded not guilty was amended to manslaughter; the accused’s ready co-operation with the police at the earliest opportunity as shown by the full and frank confession he made in his cautioned statement when first interviewed by the police; the fact that the offence was not pre-meditated; the fact the accused is a first offender; the fact that the offence is totally out of character as the accused appears from his testimonials to be a person of good character; and the age of the accused who is now 18 years old but was 17 years old at the time of the offence.

Other mitigating features are that the deceased, 20 years of age at the time of this incident, was the initial aggressor and he provoked this incident by calling out the accused’s name several times and then threw a punch at the accused when the accused came to him; the retaliation by the accused by throwing one punch which caused the deceased to fall backwards and hit the ground appears to have been a spontaneous human reaction in the circumstances; the accused walked away when the deceased fell down but he soon returned with his cousins, carried the deceased to their house where the deceased regained some measure of consciousness, gave the deceased a shower, and then in their family pick-up took the deceased to his uncle’s home.

Further mitigating features are the substantial presentation of foodstuffs made by the family of the accused to the family of the deceased for the funeral of the deceased which was not only a form of apology but an expression of sympathy towards the family of the deceased; the ifoga performed by the family of the accused and accepted by the family of the deceased; and the substantial presentation of foodstuffs made by the family of the accused to the village council of Saleapaga which was an act of atonement for the offence committed by the accused within the village.

Aggravating features

Apart from the objective gravity of the offence, which in my view is not high, I do not see any other aggravating feature in this case.

Submissions by counsel for the accused

Counsel for the accused in his plea in mitigation of penalty submitted that the accused is truly remorseful for what had happened. As evidence of remorsefulness on the part of the accused, counsel referred to the accused’s actions after he punched the deceased when he then walked away but soon afterwards returned with his cousins and carried the deceased to their house, gave the deceased a shower, and then took the deceased to his uncle’s house in their family pick-up vehicle. Counsel for the accused also referred to the full and frank confession made by the accused to the police at the earliest opportunity and the accused’s plea of guilty to the charge of manslaughter as further evidence of the accused’s genuine remorsefulness. Counsel also told the Court that the accused is now fully appreciative of the seriousness of what had happened and has vouched never to appear again on any offence.

Counsel further submitted that there was provocation from the deceased to the accused when the deceased called out the name of the accused several times and then punched the accused when the accused came to him. He said that the retaliation by the accused of throwing back only one punch when the deceased who had lost his balance from his own punch stood up again, was more a spontaneous human reaction in the circumstances. It was just unfortunate that the one punch from the accused turned out to be fatal but there was no pre-mediation or intention on the part of the accused to cause death to the deceased. Reference was also made to the young age of the accused, the fact that he is still attending school at form 6, and the accused’s goal of becoming a pastor.

Counsel then submitted that even though there has been a loss of life which is always a serious matter, the special circumstances of this case warrant a non-custodial sentence and he suggested a term of probation. Counsel for the accused also informed the Court that he had conferred with counsel for the prosecution who agrees with his suggestion for a term of probation to be imposed in this case. This was confirmed to the Court by counsel for the prosecution.

The decision

Given the wide range of circumstances which may give rise to the crime of manslaughter and the varying degrees of culpability involved, the sentences imposed by this Court in cases of manslaughter have ranged from lengthy terms of imprisonment to conditional releases. In the special circumstances of this case, I have decided that a non-custodial sentence is warranted. But I have been weighing up whether a suspended sentence or a term of probation as sought by counsel is the appropriate sentence which would meet the justice of this case. In the end, I have decided to impose a term of probation as sought by counsel for the accused and agreed to by counsel for the prosecution. This will provide the accused, who is now 18 years of age, with the benefit of the counselling and supervision provided by the probation service while he is still a young man with his future still before him.

The accused is sentenced to two years probation.

CHIEF JUSTICE

Solicitors

Attorney General’s Office for prosecution
Richard’s Law Firm for accused