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Police v Failauga [2019] WSSC 81 (8 August 2019)

IN THE SUPREME COURT OF SAMOA
Police v Failauga [2019] WSSC 81

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

NIUNITONE FAILAUGA, male of Puipaa and Saleia, Savaii
Defendant

Counsel: L Sio for Prosecution
T Leavai for the Defendant

Sentence: 8 August 2019

SENTENCING OF TUATAGALOA J

1. The accused appears for sentence after being found guilty on the charge of manslaughter by a panel of assessors on 24 May 2019.

The offending

2. There is no need to traverse the facts as this matter was fully heard before a panel of assessors but a brief summary of what took place is as follows:
   • On Thursday night to early Friday morning, 21 December 2018, the accused, the deceased (uncle) with two other men had a drinking session at one of the flats where the accused was employed as a security guard. At some point in the early hours of Friday morning, 21 December 2018 the other two men left and there was only the accused and his uncle. From the evidence heard, the deceased was not happy with the accused with the way the accused treated one of the men named Muta Wilson. This resulted in the accused assaulting the deceased which lead to the death of the deceased.

The accused

3. The accused lives in Savaii but he came to Upolu when his family at Puipaa called for him to come and help them out with some work. The victim of this offending is the uncle of the accused whom the accused was living with at Puipaa.
4. The accused is 20 years old, married and is a first offender.

The injuries

5. The deceased sustained blunt force head injuries. The pathologist who carried out the post mortem ruled that:

“...the cause of death was blunt force head injury consistent with multiple contacts, in a pattern and distribution consistent with an assault.”

Victim impact report

6. The nephew of deceased, Koneferenisi Tanielu, pleads for the Court leniency in giving the accused a second opportunity. The family has forgiven the accused as he is family.

Pre-sentence report

7. The pre-sentence report says the accused is the eldest of seven children who grew up in a stable family environment and had attended Leiifiifi College in Apia. Upon leaving college at Year 11 in 2011 he found employment at Vailima Breweries for 4 years. He got married in 2016 and moved with his wife to Savaii. He now has a young son of 2 years old. From the PSR the accused is a reliable and hardworking individual who has a taro plantation that he supplies the Ah Liki Company with and earns a living to look after his young family. His wife speaks of him as a hardworking person and his offending had totally shocked her.
8. The accused deeply regrets what happened and portrays deep remorse.
9. The pre-sentence report confirms that the matter has been settled and reconciled within the family and that the family wanted to have the matter withdrawn.

Aggravating factors

10. I accept the following as the aggravating factors of the offending:
    • (a) The attack or the assault was mainly to the facial or head area.
    • (b) From the post mortem report, the injuries sustained were not caused by one assault but multiple.
    • (c) The force used: Doctor Areta Samuelu said the injuries sustained were caused by some measure of force.
    • (d) The injuries sustained were severe to cause death.
11. The Prosecution referred to a number of cases with similar circumstances and recommended a starting point of eleven years.

Mitigating factors

12. Counsel for the accused in her submissions asks the Court to consider provocation and self defence as mitigating factors. Self defence cannot be a mitigating factor because it is a complete defence and in this case the assessors did not find any self defence as they found the accused guilty of manslaughter. I will give little weight for any provocation involved.
13. The only mitigating factors personal to the accused are his young age and his previous good character. There is nothing adverse said about the accused previous good character other than what the aunty says in the pre-sentence report, that he is a reliable and hardworking. I will allow considerable discounts for those two factors.

Discussion

14. There is no doubt that the level of violence where death resulted is substantial. In any case involving violence of this level, the sentencing principles to the forefront must be those of deterrence and denunciation. The Court must hold the accused accountable for his actions.
15. An appropriate sentence is one that would deter the accused and other young people from similar behaviour in the future. The level of sentence to be imposed might have some level of deterrence in that it sends not only to the accused but other young people, that there are consequences for such behaviours. I am very mindful of the following factors regarding this accused:
    • His young age of 20 years old;
    • He is a first offender;
    • He grew up in a stable family environment, has a young family;
    • He is a hard worker, has a taro plantation that he supplies one of the companies in Savaii every week and earns a living from it to look after his young family;
    • There was a lot of alcohol consumed by both the accused and the deceased that they were both heavily intoxicated although alcohol is not a defence or being under the influence of alcohol but still alcohol had played or facilitated the offending that would not have happened but for alcohol. I suppose what I’m trying to say is that this young accused should be given an opportunity to address his alcohol issues by attending the alcohol and drugs program run by Salvation Army.
    • The deceased is an uncle and the family has forgiven him and if it was up to the family they would have withdrawn the matter against the accused.
16. In the circumstances of this offending, a custodial sentence is most appropriate to achieve those purposes of deterrence, denunciation of such behaviour, accountability for such behaviour and most important of all the safety of the community.

Starting point

17. The Prosecution submitted for 11 years starting point. Counsel for the accused asks for leniency and mercy of the court when imposing a sentence.
18. The penalty for the offending the accused is charged with of manslaughter is maximum life imprisonment. The starting points in cases of attempted murder where machete or a weapon is used ranged from 9-15 years. I am aware that there was no weapon used but the accused fist. A fist of a strong healthy male and the distance it was delivered is in my view a very potent weapon. Each offender is sentenced according to the circumstances of each case. I find that the accused level of culpability in this offending is of medium level.
19. A starting point of 8 years is appropriate in the circumstances of this offending. The most significant mitigating factors are the accused young age and his previous good character. I give 2 years’ discount for young age and 1 year for previous good character. I will further reduce the sentence by 6 months for any provocation. This reduces the sentence considerably to 4 ½ years.
20. The accused is convicted and sentenced to 4 1/2 years’ imprisonment less any time in custody.

JUSTICE TUATAGALOA