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Police v Ofoia [2008] WSSC 10 (10 March 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ALEKI OFOIA
male of Vaitele-tai and Falefa.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L S Petaia and M T Lui for prosecution
S Leung Wai for accused

Sentence: 10 March 2008

SENTENCE

The charge

[1] The accused was charged with the crime of murder to which he pleaded not guilty. After a three day trial with assessors on 19, 20 and 21 February 2008, the accused was found guilty of the lesser crime of manslaughter. This matter was then adjourned for a pre-sentence report and sentencing.

[2] Immediately prior to the commencement of the trial, the Court was informed in chambers by counsel for the prosecution that the prosecution was prepared to reduce the charge of murder to manslaughter if the defence was willing to vacate its not guilty plea to the murder charge and enter a guilty plea to manslaughter. Counsel for the accused was not prepared to accede to the suggestion from the prosecution as he intended to proceed with the defence of self-defence which, if successful, would result in an acquittal even if the charge was reduced to manslaughter. Counsel for the accused was, of course, entitled to proceed in the way he considered was in the best interests of his client. So the trial proceeded on the murder charge.

The offending

[3] On Friday night 26 May 2006, the deceased was drinking at the Grabbers Nightclub at Tauese in Apia. At about 11pm, Ariota Va’a, the deceased’s brother in law, met up with the deceased at the Grabbers Nightclub. The deceased was very drunk at the time. So Ariota took him home to Vaitele-tai in a taxi. On their way, they picked up Ariota’s wife from Sogi. They then stopped by at Pinati’s restaurant to buy some food for the deceased was hungry and asking for food.

[4] When they arrived home at Vaitele-tai, Ariota and his wife led the deceased from the taxi to the main house of their family. At that time, the deceased was making a lot of noise and swearing.

[5] Ariota and his wife then sat the deceased at a table and gave him his plate of food to eat. After two mouthfuls, the deceased threw the plate of food across the house and walked to his family’s newly built bathroom at the back.

[6] Inside the bathroom, the deceased continued to swear and made a lot of noise. He was also punching the corrugated iron walls of the bathroom. The noise created by the deceased woke up his older brother, the accused, who was sleeping in a nearby house.

[7] The accused walked to the bathroom where the noise was coming from and called out to the deceased "Sole". The deceased replied "O le a?" (what?). The accused answered back saying that he was being very rude for swearing. However, the deceased responded by swearing back at the accused. He then walked to the accused and punched the accused hitting the accused on the right shoulder.

[8] The accused retaliated by punching the deceased on the forehead breaking his right fist. The deceased then bent forward and moved towards the accused as if to fight the accused who at the time was moving backwards. When the accused stumbled on a piece of timber, he picked it up and swung it at the deceased hitting the deceased on the right side of the head. The deceased fell down and at that time the mother of the deceaesd and the accused called our "Ua lava" (enough). The accused stopped and went to his mother in their main house.

[9] There is evidence given by the witness Ariota, that at the time the deceased and the accused were at the bathroom, he heard the accused saying "O le a fasi oe" (You are going to be beaten up). Under cross-examination, the accused confirmed that he said those words to the deceased. This evidence is inconsistent with the defence of self-defence.

[10] While the accused was talking with his mother inside their main house, he told his wife who came by to go and put a piece of wet cloth ("se mea malulu") on the deceased as he thought the deceased was simply unconscious. The accused was surprised when his wife came back and told him to take the deceased to the hospital as he was snoring.

[11] The accused then rushed from the main house and called to Ariota to come and help in carrying the deceased to his (Ariota’s) pick up vehicle and to take the accused to the hospital. The deceased was accompanied to the hospital by the accused, Ariota and other members of their family. Upon arrival at the hospital, the deceased was pronounced dead by a doctor. This doctor testified that the family members who brought in the deceased appeared sad and shocked.

[12] The evidence given by the pathologist who performed the post-mortem examination on the deceased is that the deceased died from brain haemorrhage associated with the external injuries on the right side of his head. Those external injuries were consistent with injuries caused with a hard blunt object.

[13] At 8:45am on Saturday morning 27 May 2006, the accused was interviewed by senior sergeant Galu Frost at the Apia police station and the accused readily admitted to causing the death of the deceased. According to the evidence of the senior sergeant, this is an unusual case as the accused was crying all the time, and unable to speak at times, whilst giving his statement to the police. The accused told the police "O le mea ua mao" (it was an accidental thing").

The accused

[14] As it appears from the pre-sentence report, the accused is a male of Vaitele-tai. He has a wife and three children. He is now about 39 years old but was 37 years at the time of this offence. He is the eldest of his parents six children and is the older brother of the deceased.

[15] The accused completed school at Year 13 and then studied for two years towards a certificate in carpentry at the Polytech. He is currently employed in the joinery section of a construction company. He is the only member of his family with employment and his mother and family depend on him. His wife’s family also depends on him. Since this incident, the accused and his wife and children have been staying at the family of the accused’s wife at Vailoa, Faleata.

[16] The pastor of the EFKS Church at Vailoa states in his testimonial for the accused that everytime he and the accused talk about the incident that happened the accused appears sad and remorseful as he has missed his brother. As it also appears from the pre-sentence report, the accused expressed remorse to the probation service, and he told the probation service that he will live with the memory of having killed his own brother for the rest of his life. The accused’s mother also told the probation service that her family has forgiven the accused as what happened was accidental. The accused had also shown signs of sadness and remorse at times during the trial when the evidence touched on how he caused the death of his brother.

[17] The testimonial from the accused’s employer describes the accused as a dedicated, honest and dependable worker who gets along easily with his co-workers.

[18] It also appears from the pre-sentence report that the accused told the probation service that he had a previous conviction in 1987 for wilful damage.

The deceased

[19] As it appears from the post-mortem report by the pathologist, the deceased was 24 years old at the time of his death. He was the younger brother of the accused. He was also a promising rugby player.

Aggravating features

[20] The prosecution has submitted that the deceased, due to his drunkenness, was in a vulnerable position and the accused should have been aware of that fact. Being the older brother, the accused should have acted more responsible instead of resorting to violence.

[21] The prosecution has also pointed out that this is a homicide case which involved the use of a piece of timber to strike the head of a deceased person resulting in his death.

Mitigating features

[22] There is an element of provocation in this case. The behaviour of the deceased in making a lot of noise, swearing and punching the walls of his family’s new bathroom was provocative. It became more provocative when the accused came to the deceased and called out "Sole" but the deceased swore at the accused and then punched him which hit the accused on the right shoulder. The deceased then further moved towards the accused as if to fight him.

[23] The piece of timber used by the accused was lying at where this incident happened. The accused stumbled on the piece of timber and then picked it up and struck the deceased. He did not go and obtain the piece of timber from somewhere else and then struck the deceased with it.

[24] When the deceased fell down from the strike delivered by the accused, the latter stopped when his mother called out that was enough. Shortly afterwards, the accused, thinking that the deceased was simply unconscious, told his wife to go and put a piece of wet cloth on the deceased. When the accused’s wife returned and told the accused to take the deceased to the hospital, the accused rushed out and, with his brother in law and other members of his family, took the deceased to the hospital in a pick up vehicle. The doctor who received the deceased at the hospital testified that she observed that the family members who brought the deceased to the hospital were sad and shocked. So the evidence shows that the accused gave immediate assistance to the deceased and showed immediate remorse.

[25] Signs of deep remorse were evident on the part of the accused when he was later interviewed by the police. As senior sergeant Galu Frost testified, the accused was crying and at times could not speak, while telling the police what had happened.

[26] I accept that the accused is completely remorseful and will live the rest of his life with the memory that he has killed his own brother. This is also evident from the pre-sentence report and the testimonial from the pastor the EFKS Church at Vailoa where the accused is now staying with his wife and children.

[27] Even though the accused has a previous conviction for wilful damage in 1987, I will treat him as a first offender for present purposes because of the age of that previous conviction which was about nineteen years prior to the occurrence of the present offence.

The decision

[28] In determining what should be the starting point for sentence in this case, I must first point out that the assessors by their verdict of manslaughter must have rejected the defence of self-defence. Secondly, because of the wide range of circumstances, varying considerably in the degree of criminality involved, which may give rise to the offence of manslaughter, there is no fixed or universal starting point for all cases of manslaughter.

[29] Having regard to the aggravating and mitigating features relating to the offending, I have decided to take 3 years as the starting point for sentence in this case. I will then deduct 12 months for the mitigating features relating to the accused, particularly the high degree of remorse shown by him. That leaves 2 years.

[30] The accused is convicted and sentenced to 2 years imprisonment. The time in which the accused was in custody on remand is to be further deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution
Leung Wai Law Firm for accused