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Police v Ah Loo [2008] WSSC 18 (6 May 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

TUMUA AH LOO
male of Faleasiu.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: L S Petaia and A Lesa for prosecution
M Tuatagaloa for accused

Sentence: 6 May 2008

SENTENCE

The charge

1. The accused was charged with the crime of manslaughter to which he pleaded not guilty. After a four day trial commencing on Tuesday, 18 March 2008, the assessors found the accused guilty of the charge.

The offending

2. At the trial, the accused elected not to give or call evidence. So the only evidence that was before the Court for consideration by the assessors was the evidence adduced by the prosecution.

3. It appears from that evidence that on Friday night 5 January 2007 before midnight, the deceased Mose Telea, the accused Tumua Taoipu Ah Loo, and other boys had been drinking alcohol at the sub-village of Lealaalii at Faleasiu. It then appears that differences occurred between the deceased and the accused during which the deceased held the accused by the collar or the neck. The deceased and the accused then parted and went their separate ways.

4. Later on the same night, between 11pm and mid-night, the deceased and the accused met up again on the main road in front of the house of the accused’s family at Lealaalii. Both of them were intoxicated. The witnesses Siaosi Sauvao and Sani Viliamu who were a short distance away, testified that from what they observed the deceased and the accused appeared to be talking to one another. The accused then threw something to the sea on the northern side of the road and walked away.

5. It is clear from other evidence adduced by the prosecution, that by the time the deceased and the accused appeared to be talking to one another on the main road, the accused was already in possession of a small bottle of Vailima beer.

6. At the same time that the accused walked away from the deceased, the latter walked towards where the witnesses Siaosi Sauvao and Sani Viliamu were standing on the main road. When the deceased came to these two witnesses, he was observed to be bleeding profusely from the left side of his face. Siaosi Sauvao, who is a policeman, touched the deceased’s left cheek and found it was injured. He then removed his shirt and used it to cover the bleeding from the deceased’s injured cheek. At that time, the deceased fell down unconscious. Siaosi Sauvao called out to the accused but the accused was nowhere to be seen at that time.

7. Siaosi Sauvao and Sani Viliamu then waited for a car to take the deceased who was lying unconscious on the road to the hospital. They stopped the first car that came by and took the deceased to the hospital at Leulumoega. The deceased died after arrival at the hospital. The police who had been informed soon arrived and brought the deceased’s body from the Leulumoega Hospital to the Tupua Tamasese Meaole Hospital in Apia.

The deceased’s injuries

8. According to the report by the pathologist who conducted the post-mortem examination on the deceased, there was a sharp semi-circular wound measuring 5 inches in length, 1/3 of an inch in breadth, and 1¼ inch in depth on the left cheek of the deceased.

9. In the opinion of the pathologist, the death of the deceased was due to haemorrhage and shock following the massive injury to the left side of his face. It was also the opinion of the pathologist that this injury was caused by a moderately heavy weapon with a sharp cutting edge.

10. From the evidence given during the trial, the clear inference to be drawn is that when the deceased and the accused were seen appearing to talk to one another on the main road in front of the house of the accused’s family, the accused was in possession of a small bottle of Vailima beer. From the pathologist’s evidence and that of the witnesses Siaosi Sauvao and Sani Viliamu, the further inferences to be drawn are that the accused must have punched or hit the deceased with that bottle of beer and at that time the bottle was already partly broken and had sharp edges. No other reasonable inference can be drawn from the relevant circumstances.

The deceased

11. The deceased was a 20 year old male of Lealaalii, Faleasiu, given his date of birth shown on his death certificate. He was single but it is not clear whether he was employed.

The accused

12. The accused is also a male of Lealaalii, Faleasiu. He is now 21 years old but was 20 years old at the time of this offence given his date of birth shown in the pre-sentence report. He is self-employed as an artist and sells his works at the markets in Apia.

13. It also appears from the pre-sentence report that the accused is the only child of his parents who separated when he was 12 years old. He remained with his father who re-married and completed secondary school at Wesley College.

14. After the present offence, the accused’s father and family performed a ifoga to the family of the deceased which was accepted. The accused’s family presented a large fine mat, 20 tins of cabin bread and $500 cash.

15. The accused is also a first offender.

Aggravating features

16. As the evidence clearly suggests, the accused must have punched or hit the deceased on the left cheek with a small broken bottle of Vailima beer with sharp edges when they were face to face given the nature of the injury observed by the witnesses Siaosi Sauvao and Sani Viliamu and later found by the pathologist.

17. Prior to the deceased being injured, the deceased and the accused had had differences the same night and the deceased held the accused by the collar or the neck. The time interval between those differences and when the deceased was injured is not clear from the evidence. But it seems not to be very long.

18. It is conceded in the submissions by the prosecution that there was an element of provocation involved. Whilst that concession was properly made, the degree of provocation involved does not appear to be high. And the fact that the accused was intoxicated is in law of no assistance to him.

Mitigating features

19. The mitigating features in this case would be: (a) the ifoga performed by the accused’s family to the deceased’s family, and the contribution to the deceased’s funeral, (b) the fact that the accused is a first offender, and (c) provocation even though that was not of a high degree.

20. As the accused pleaded not guilty to the charge, I would not have to consider any discount for a guilty plea.

The decision

21. Loss of human life is always a most serious matter. It is reflected, inter alia, in the maximum penalty of life imprisonment provided for manslaughter.

22. Bearing in mind the maximum penalty for manslaughter and having regard to the aggravating and mitigating features relating to the offending. I will take 6 years as the starting point for sentence. Of course no two cases would have exactly the same circumstances. But after due consideration, I have decided to take 6 years as starting point for sentence in this case which is the same starting for sentence that the Court of Appeal had in mind in Attorney-General v Matalavea [2007] WSCA 8 which was a manslaughter case where the accused had pleaded guilty. For the accused’s personal circumstance, namely, the fact that he is a first offender, and the other mitigating features, namely, the ifoga and the contribution by the accused’s family to the deceased’s funeral, I will deduct 10 months. That leaves 5 years and 2 months.

23. The accused is convicted and sentenced to 5 years and 2 months imprisonment. The time that the accused had spent in custody on remand is to be further deducted from that sentence.

CHIEF JUSTICE

Solicitor

Attorney-General’s Office, Apia, for prosecution
Brunt Keli Law Firm