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Police v Faleao [2024] WSSC 44 (14 February 2024)

IN THE SUPREME COURT OF SAMOA
Police v Faleao [2024] WSSC 44 (14 February 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

FUIFUI FALEAO, male of Pitonuu Satupaitea and Ulutogia.

Defendant

Counsel: L.Strickland for Prosecution

T.Toailoa for defendant

Sentence: 14 February 2024

SENTENCE

Charge

1. You were charged with 6 offences following an incident at Ulutogia Aleipata on the 27th July 2022. The principal charge was murder; the alternative charges manslaughter, causing grievous bodily injury, causing actual bodily injury, common assault and being armed with a dangerous weapon. You denied all charges and following a defended hearing from 30th October to 2nd November 2023, the panel of assessors by a majority verdict found you guilty of manslaughter.
2. The maximum penalty for manslaughter is life imprisonment. You now appear for sentencing.

Offending

3. The evidence heard at trial is that the deceased, a 46 year old male had been drinking and playing billiard with a brother in law and a friend at his Ulutogia home on the evening of the 27th July 2022. When his friends left, the deceased came to the shop that you and your wife operate to buy more alcohol. He invited and insisted that you join him for a drink at his house. You did join him and was seen drinking with him later that evening.
4. In a cautioned statement produced in evidence, you told police that during your drink up, the deceased told you ‘o a’u o le sifi o Ulutogia ma Aleipata, o le a fasioki oe.’ You became unhappy and stood up to leave when the deceased punched you on the back of the neck. You turned around and punched him, he fell and whilst he was on the ground, you lifted a car battery lying nearby and threw it at his face. You told police that you threw the battery once then left and headed home. The pathologist however was of the opinion that given the nature and severity of the injuries, they were caused by two or more blows.
5. Following the assault, you left the deceased lying injured at the back of his house. When you arrived home, you instructed your wife to contact Lalomanu police. Constables Fili, Joseph and Siatuvasa responded and found the deceased at the back of his house. His head and face were covered with blood. The injuries appeared severe, he showed no signs of life. They took him to hospital and you to the Lalomanu police post.

Injuries

6. Dr Mosaiah Marumakatimanu of the Lalomanu District Hospital examined the deceased in the early hours of the 28th July 2022, shortly after he arrived at the hospital. He showed no signs of life. Dr Mosaiah found that “all injuries were focused on the face and head, with no other obvious injuries from the neck down. His face was swollen and bruised, and covered in blood and blood clots. Multiple and deep lacerations were noted throughout his face. His eyeball was crushed and hanging out of the eye socket. His jaw was crushed and teeth were missing. The inside of his mouth was filled with blood.”
7. Dr. James Kalougivaki, a forensic pathologist from Fiji conducted the post mortem examination of the deceased on the 20th August 2022. His report was produced in evidence and in oral testimony, he explained that on external examination, he found the right eye to be protruding and severely damaged with lacerations on the right eyelids; and swelling on multiple areas of his face. On an internal examination of the neck and face, there were extreme damage to the flesh and fractures of lower and upper jaw with many areas of broken bones and dislodgment of multiple teeth. Bruising and bleeding were identified under the skin of the scalp and the floor of the skull showed breaking and presence of bleeding.
8. He identified 2 distinct injuries caused by 2 severe points of trauma to the jaw and to the face. In his opinion, it required a significant amount of force to the right side of the face and eye to cause damage around the eye and eye to come out. The bleeding and bruising under the skin of the skull indicated severe trauma. The damage to the upper and lower jaw and teeth dislodgment was consistent with forceful removal or breaking.
9. He assessed the level of trauma as severe and extreme between 8 and 10 on a scale of 1 – 10. Given the multiple and significant injuries, he found that they were highly likely caused by more than two blows from the front of his head and face. Photos produced of the deceased also showed the extent and severity of his injuries.
10. The pathologist found the cause of death to be severe subarachnoid haemorrhage with traumatic brain injury secondary to traumatic head injuries caused by severe blunt force trauma.

Victim

11. The victim was a single 46 year old male of Ulutogia. According to the VIR by his sister Diana Fanolua, he was living with his parents at Ulutogia Aleipata at the time of the incident. He was a NZ and Australian citizen who returned to look after his family especially his parents. He was a ‘matai’ and ‘tiakono’ of the EFKS church at Ulutogia who was relied upon in the church and his family.
12. Because of the severity of the injuries and manner in which he died, his family decided not to disclose the full details to his elderly parents. They accepted the ifoga but say that the unexpected death of her brother and manner in which he died continues to have an impact on their family, in particular his elderly parents.

Aggravating factors

13. I consider the following:
    • (i) Use of actual violence and to a significant degree – this was an intentional and brutal assault with a car battery targeting and striking the deceased’s head and face two or more times. The significant amount of force applied is clear from the extent of the injuries;
    • (ii) Extent of the injuries – there were multiple areas of bruising and deep lacerations of varying dimensions over and around the deceased’s head and face. He was left with a protruding eyeball, there was complete fracture of the jawbone and multiple fragmented fractures of the upper jaw with the dislodgment of multiple teeth. There were swelling, bruising and bleeding underneath the skull and second covering of the brain at the front and the top associated with significant trauma;
    • (iii) Vulnerability of the victim – the deceased was intoxicated, motionless and defenceless on the ground when you used the car battery to strike his head and face;
    • (iv) Area of the attack – not only was the assault brutal, it was aimed at the face and most vulnerable part of the human body, the head;
    • (v) Use of a weapon – the size and weight of the car battery used was likely to and did involve significant force which caused severe injuries;
    • (vi) Conduct after the assault – you left the deceased severely injured, helpless and unattended preferring to contact police only after you arrived home;
    • (vii) Loss of a human life.

Mitigating factors

14. I consider in relation to the offending that there was element of provocation. There was evidence by one of the constables who attended the call of being told by you that the deceased had held a broken bottle against your neck. In your cautioned statement, you also told police that the deceased threatened and punched you on the back of the neck as you were leaving. Despite the provocation, I consider that your retaliation in the use of a car battery to strike the deceased twice or more at the head and face and inflict serious injuries when he was motionless and defenceless on the ground, was excessively disproportionate.
15. Personal to you as offender I consider the following:
    • (i) Ifoga and reconciliation – there is a letter from Uluaea Faaiuga, pulenuu and representative of the victim’s family confirming the presentation of $12,000 and fine mats to their family. Money and fine mats were also presented to their family matais and pastors present;
    • (ii) Village fine of $5,000, and 50 boxes of tinned fish and fine mats presented to the village;
    • (iii) Personal circumstances – you are 48 years of age, married with 3 young children aged between 6 and 12 years. You are from Satupaitea but lived with your wife’s family at Ulutogia. You are the sole provider for your family. The testimonials by your wife and eldest son, sister in law, family matai and pastor speak of your good character and contribution to your family, village and church. They seek leniency in passing sentence. You are a first offender.

Discussion

16. The penalty for manslaughter is life imprisonment, the loss of a human life being a significant factor. But as the authorities show, the court has imposed varying sentences in manslaughter cases ranging from long sentences of imprisonment to non custodial sentences depending on the facts and circumstances of each case.
17. There is no question Fuifui that the appropriate sentence in your case is one of imprisonment. The only question is how long.
18. Prosecution submit that the appropriate staring point must not be less than 12 years. Counsel provides an analysis of the facts and circumstances, and sentences imposed in Police v Natano [2012] WSSC 89, Police v Timoteo [2011] WSSC 65, Police v Aukusitino [2013] WSSC 11 and Police v Molia [2023] WSSC 21. She argues that whilst similar to the above cases in that a weapon was used to cause injuries that resulted in the death of the victim, your culpability would be much higher.
19. Prosecution emphasise the multiple and extremely serious injuries to the head and face caused by 2 or more strikes with a car battery; the nature of the weapon; the area of attack; the viciousness of the attack in circumstances where the deceased was unarmed, motionless and defenceless on the ground; and the fact that you left him at the scene without offering any assistance.
20. Your counsel submits that the appropriate starting point is 3 ½ years. Counsel relies on Attorney General v. Lesa [2019] WSCA 10, an appeal against sentence on an accused who pleaded guilty to manslaughter. She submits that in accordance with Lesa, even if self defence does not succeed as a complete defence, the fact that there is an element of self defence justifies a starting point of half of what would otherwise be the starting point.
21. I bear in mind that by finding you guilty of manslaughter, the assessors would have rejected self defence. In saying that I consider that when you first punched the deceased causing him to fall on the ground, there is a likelihood that you acted under provocation. Likewise there is a likelihood you acted in your defence when as you claim, the deceased held a broken bottle against your neck and later punched you as you were leaving.
22. Consistent with the assessor’s verdict however, I consider that when you struck the deceased more likely twice or more times on the face with the car battery when lying defenceless on the ground, it was not in self defence and your retaliation was excessively disproportionate to the provocation.
23. For reasons advanced by prosecution, I also accept that the circumstances of your case are different from Lesa and that your culpability and gravity of your offending is much higher. Compared to Lesa, you denied the charges and was found guilty by assessors; you did not act in defence of another; you used a bigger and heavier object to inflict brutal injuries to the head and face, more likely by two or more blows.
24. I have closely considered the facts and circumstances, and penalty imposed in each case cited by both counsel. I am persuaded by the submission of prosecution. I adopt 12 years as the appropriate starting point, from which I make these deductions.
25. For provocation I deduct 3 months. For the ifoga and reconciliation I deduct 16 months. For the village penalty and punishment I deduct 12 months. For your personal circumstances, the testimonials and your previous good character I deduct 18 months. The end sentence is 7 years and 11 months.

Result

26. On the charge of manslaughter, you are convicted and sentenced to 7 years and 11 months’ imprisonment. Time in custody to be deducted.

Coronial Finding

27. Lastly I issue the final coronial finding in respect of the deceased. I certify that Joe Tui Iu, a 46 year old male of Ulutogia, Aleipata died on arrival at Lalomanu District Hospital in the early hours of the 28th July 2022. The cause of death was severe subarachnoid haemorrhage with traumatic brain injury sustained in an assault at Ulutogia on the evening of 27th July 2022. I further confirm that the accused has been dealt with according to law.

JUSTICE ROMA