Police v Faapiano [2010] WSSC 35 (30 June 2010)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PIO TULATOA FAAPIANO aka PIO PILIMAI
male of Letogo
First Defendant

AND:

TONY TAALO
male of Letogo
Second Defendant

AND:

PESAMINO IOANE FAALOGO
male of Letogo
Third Defendant

AND:

NEW YEAR ALOFIMUA
male of Letogo
Fourth Defendant

AND:

PETER JOSEPH ULUGIA
male of Letogo
Fifth Defendant

Presiding Judge: Justice Vaai

Counsel: Ms Rexona Titi for the prosecution
Ms Rosella V Papalii for first defendant
Mr Patrick Fepuleai for second defendant
Mr Semi Leung Wai for third defendant
Ms Fotu Vaai - Hoglund for fourth defendant
Mr Raymond Schuster for fifth defedant

Sentence: 30 June 2010

SENTENCE

1. Following trial by assessors the five defendants were each found guilty of manslaughter in relation to the death of Kane Sinapati on the night of the 14th November 2008. Kane Sinapati the deceased was aged 18 years from the village of Vailele.

2. The five defendants are from the neighbouring village of Letogo. On the night of the 14 November 2008 four of the defendants Pio, Pesamino, New Year and Peter were walking through the village of Vailele accompanied by a fifth youth also of Letogo. They were stopped and questioned by Vailele matais who were policing the village curfew. It was after 10 oclock.

3. They were allowed to go after they told the Vailele matais that they were going to the shop at the petrol station. But they did not go to that shop or any other shop. They walked past the shop at the petrol station. As they walked past a house where a bingo game was held, the defendant Pio uttered a cry of ususū and swore in a loud voice. Youths at the bingo game responded but the defendants continued on towards their village.

4. At an intersection near the border of Letogo and Vailele villages a group of boys were congregating under a lamp post. One of these boys was the defendant Tony.

5. When the four defendants came across this group of boys the four defendants were all armed with rocks and bottles. Defendant Pio who was holding rocks in both hands demanded one of the boys to come and stand before him. As the boy stood before defendant Pio he was intimidated and threatened. A cousin of the boy and defendant Tony intervened.

6. At that point of time the deceased was at his mother’s house not far from the intersection. The deceased and his friend Henry have already walked past the intersection to go to the deceased’s mother’s house before the four defendants got to the intersection. Henry waited outside whilst the deceased went inside to talk to his mother.

7. When the four defendants left the intersection and walked towards their village Letogo, they walked past the house of the mother of the deceased. Defendant Pesa walked over and questioned Henry as to what he was doing and Henry responded he was waiting for his friend who was inside the house.

8. The deceased came out while the defendant Pesa was still with Henry. Both Henry and the deceased bid good bye to defendant Pesa and walked back towards the intersection where the defendant Tony and other boys were still congregating.

9. As they reached the intersection the defendant Pesa came from behind, told Henry he was not happy with him and instantly punched Henry on the eye. When the deceased tried to help defend his friend Henry the defendant Tony who was with other boys at the intersection left his group and punched the deceased who reeled around and was struck by the defendant Pio on the face with a rock causing the deceased to fall heavily onto the road where he was further assaulted whilst lying helplessly on the road. Henry was also knocked to the ground and assaulted with rocks and punches to his head and face.

10. Eyewitnessess saw the defendants Pesa, Pita and New Year kicking the deceased while he was lying motionless on the road.

11. The assault of the deceased and Henry stopped when the headlights of an approaching motor vehicle were seen. Two of the defendants dragged the deceased by his hands away from the road before all five of them ran away.

12. Death according to the Post Mortem report was due to failure of the vital centres of the brain, following intracranial haemorrhage as a result of blunt injuries to the head and face. Most of the injuries were found on the head and face of the deceased. He was dead on arrival at the hospital.

The Defendants.

13. Defendant Pio was 18 years old at the time of the offence and attending Saint Josephs College. He was expelled from school and banished from his village for his part in this offence. He is presently living with a Catholic priest at Leauvaa. He did however attend Chanel College in the year 2009 and appeared to have completed year 13 there. Written testimonials from both colleges convey this defendant as a quiet achiever, has leadership qualities and a promising future.

14. Defendant Pesamino was 17 years and 11 months old at the time of the offence. He was a student at Vaimauga College. He also was expelled from school and banished from his village as a consequence of his offending. Like the defendant Pio he is also residing with the same Catholic priest at Leauvaa. In 2009 he attended Wesley College at year 12 level and appears to be a quiet below average student.

15. New Year was 17 years at the time and attending Levaula College. Like the previous two co-defendants he was placed under the care of the same Catholic priest after banishment from his village. He also was placed at year 12 level at Wesley College and is described as trustworthy, co-operative and below average student.

16. Peter was 15 years at the time of his offending. He is currently attending year 13 at Samoa College where he is spoken of as an average student who has potential to achieve pursued goals.

17. Tony was also 15 at the time of the incident. He is currently residing with his aunt at Afega following his banishment from Letogo and is attending level 12 at Wesley College. His principal describes him as a co-operative and trustworthy young man.

18. All defendants are first offenders. I accept they are all truly remorseful and have all regretted their involvement in the incident which led to the death of the deceased.

Submissions by the Prosecution

19. The prosecution accepts and concedes that in sentencing juvenile offenders, rehabilitation rather than retribution or deterrence is usually the primary objective in an effort to stear away youths from the path of crime. A number of authorities have been cited to the court involving sentencing of youths.

20. It is contended by the prosecution however that despite the young age of the offenders, the gravity of their offending and the way they conducted themselves on the night of the 14th November 2008 justify a departure from the rehabilitation principle of sentencing and greater emphasis be given, in the interest of society, to deterrence and retribution.

21. Prosecution rely on the following facts for their contention.

(i) The assault on the deceased and his friend was completely unprovoked.

(ii) Four of the defendants before the assault were armed with rocks and bottles which they used in the assault.

(iii) The assault on the deceased continued while the deceased was lying helpless on the ground.

(iv) The blows and kicks were aimed at the head and face of the deceased.

(v) The assault only came to an end when a motor vehicle approached the scene of the incident.

Defence Submissions

22. It is a common ground of the defence submissions that the defendants were aged between 18 and 15 and were all attending Colleges at time of the offence. They all have the opportunity and the chance to advance further in their studies depending on the outcome of this case.

23. It was also submitted that the offending stemmed from their immaturity and perhaps lack of real guidance rather than a display of meditated aggressiveness and hostility. The Catholic priest who currently has guardianship of the defendants Pio, New Year and Pesamino in his written testimonial attached to the Probation Reports spoke of positive changes in the lives of the three defendants.

24. Defendants Peter and Tony are currently attending school and are likely to advance further if given the opportunity. Their counsels have urged the court to consider invoking its powers under section 104 Criminal Procedure Act 1972 and discharge them without conviction.

25. In summary it is urged upon the court that given the ages of the defendants, their unblemished characters and their obvious remorsefulness, the court is duty bound to seriously consider rehabilitation rather than retribution or deterrence as the primary objective.

Discussion

26. I accept that in the case of young offenders there is generally greater emphasis to consider sentences aimed at rehabilitation and less to deterrence and retribution than in the case of adult offenders. Deterrence and public denunciation usually play a less important role to rehabilitation when sentencing young offenders.

27. The need to rehabilitate young offenders however should not take precedence over the primary function of sentence which is to protect society, so that where a young offender commits any offence so serious or in circumstances so severe and grave, then in an effort to protect society, emphasis should be given to deterrence and punishment.

28. Where the gravity of the offence is so great that the only appropriate sentence is one of imprisonment then deterrence and retribution must take precedence over rehabilitation.

29. The court has been referred to a number of authorities which dealt with the sentencing of young offenders and in which the court imposed sentences ranging from imprisonment of up to 3 years to non custodial sentences. Sentences for manslaughter dealt with by this court in the past clearly demonstrate that it is inappropriate to talk of a tarrif sentence for manslaughter as the circumstances of its commission are so varied.

30. But where the culpability of the offender is on the higher end and of the scale and the seriousness of the crime committed is so grave, then the offender whether he is young, a first offender and is remorseful must expect a severe, stern deterrent sentence. Such is the case here.

31. The assault on the deceased was completely unprovoked. Prior to the assault four of the defendants marched through the village of Vailele during curfew hours. They armed themselves with rocks and bottles, one of them swore and uttered the challenge cry of ususū. They came across a group of youths and bullied one of them. As they walked towards their village one of them approached the deceased friend who did absolutely nothing to warrant their anger. The deceased and his friend said good bye and walked home.

32. The deceased and his friend were attacked by the four defendants using rocks, bottles, fists and kicks. The four defendants have finally accomplished the mission they ventured for that night. Both the deceased and his friend fell to the ground. The fifth defendant Tony had already joined in the assault.

33. The blows and strikes to the deceased continued to be aimed at the deceased’s head and face while he was motionless on the ground. He never made it to the hospital.

34. The assault ceased when a car approached the scene which probably saved the life of the friend of the deceased.

35. Members of our civilised society are quite entitled to expect that as they go about their business and walk within their villages they can do so freely and safely without fear of being subjected to unprovoked brutality. Nothing will stand in the way of the need to protect society when offenders, young or old, brutally attack and kill an innocent citizen.

36. Young offenders who display an outrageous disregard for human life and conduct themselves in a way which adults do must, as society demands, expect to face the same penalty suitable for adults. Their ages will only mitigate their penalties.

37. This case is undoubtedly one of the most serious case of an unprovoked and violent killing to be dealth with by this court. Being on the higher end of the scales an equally higher starting point for sentence is also warranted. In Attorney General v Matalavea [2007] WSSC the Court of Appeal noted as a notional starting point for the more serious cases of manslaughter a term of 8 years. I adopt the same starting point as this offence was committed in the year 2008 even though the circumstances surrounding this case are much more serious than the Matalavea case.

38. For the four defendants Pio, Pesamino, New Year and Peter I will take 8 years as a starting point. For your young ages and pervious good record I will deduct 2 years and 6 months. I am oblidged under the Village Fono Act to take into account the ifoga and other customary practices performed as a result of your ifoga. I will deduct a further 12 months. The four defendants will each serve 4 ½ years imprisonment.

39. As for the defendant Tony your involvement in the incident was the punching of the deceased before he was felled by a blow from the defendant Pio. Although the eyewitnesses did not witness any further involvement by you, you were nonetheless present at the very spot where the deceased and his friend were assaulted.

40. You were not part of the group which originally marched through the village of Vailele and you were not with that same group when they turned around to assault the deceased and his friend. More significantly you were not armed with either a rock or bottle.

41. In the circumstances I consider your culpability was significantly less than the other four defendants which in turn justifies a disparity in sentence. Your participation as your counsel submitted was a spur of the moment.

42. The assessors did find you guilty of being party to the commission of a common purpose with the other four defendants but as I have remarked earlier you were not part of the original group and was therefore not privy to any discussion which may have taken place before your involvement.

43. In the circumstances I am satisfied a custodial sentence is not warranted. You are convicted and placed on probation for 2 years on condition you live and reside as directed by the probation service and attend any courses or programme as directed by the probation service.

JUSTICE VAAI