Police v Petelo [2010] WSSC 89 (31 August 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

MALAKI PETELO
male of Faleasiu.
Accused

Counsel: P Chang for prosecution
M V Peteru for accused

Sentence: 31 August 2010

SENTENCE BY SAPOLU CJ

1. The present accused was jointly charged with murder with his brother Pasina Petelo. They pleaded not guilty to the charge. They were tried before a panel of assessors. After a four day trial, the present accused was found guilty of manslaughter and his brother guilty of murder. The accused is now appearing for sentence on manslaughter.
   
2. The material facts may be briefly stated as follows. On 1 January 2008, the matais and taulelea of the village of Faleasiu were having their usual New Year's celebration called "Aimoa". In the late afternoon, some of the matais and taulelea went to the house where the game of dice was being played. The brother of the present accused and the deceased were present at that house but the accused was not. An altercation occurred between the accused's brother and the deceased. Both men were under the influence of alcohol with the deceased apparently being more so than the brother of the accused. People at the house intervened and stopped the altercation. It happened that the accused arrived at the scene of the altercation at the same time. There was evidence at the trial that the accused tried to calm down his brother.
   
3. Shortly afterwards, the accused and his brother left. Instead of going home, they stopped at the front gate to the premises where the game of dice was being played. About 3 or 4 minutes later, the deceased also left the house where the dice was played. When he arrived at the gate, he was assaulted by the accused and his brother who gave conflicting accounts of what happened to the police.
   
4. It is, of course not known, what facts were accepted by the assessors but in his statement to the police, the accused says that when the deceased arrived at the gate, he punched the deceased. He then wrestled with the deceased and they fell on the road. He then continued to wrestle with the deceased and to punch the deceased while they were on the road but many of the punches missed and landed on the road. The accused's brother in his statement to the police says that it was him who punched the deceased first causing the deceased to fall down. He then went to pick up a stick from nearby. When he returned, the accused was wrestling with the deceased on the road. The accused's brother then struck the deceased three or four times with the stick and also kicked the deceased three or four times on both sides of the stomach whilst the accused was still wrestling with the deceased.
   
5. The nature of the injuries reported by the pathologist who performed the post-mortem examination on the deceased would suggest that most of those injures must have been the result of the assault by the accused's brother.
   
6. By their verdict of manslaughter on the accused, the assessors were probably not satisfied that the accused had the required intent for murder even though by his actions he was aiding and abetting his brother in the assault upon the deceased.
   
7. The next morning after this incident, the family of the accused presented a ifoga to the family of the deceased. They also presented 50 cartons of herring, 3 large fine mats and $500 cash to the "lauava" of the deceased.
   
8. The accused and his brother have been penalised by being banished from the village by the village council of Faleasiu.
   
9. The accused has a wife and four young children who are dependent on him. He is presently employed as a caretaker earning a salary of $300 per fortnight. The accused's mother speaks of him as well-behaved and obedient but his weakness is consumption of alcohol.
   
10. The loss of a person's life is always a serious matter not to be treated lightly. However, having regard to the extent of the accused's involvement in the assault that led to the deceased's death, the fact that the accused has already being punished by the village council, the ifoga performed by the accused's family, the contribution by the accused's family to the "lauava" of the deceased, as well as the fact that this is the accused's first conviction for a crime which involves the use of violence, I have decided to impose a custodial sentence towards the lower end of the scale.
    
11. The accused is sentenced to 3 years imprisonment. Any period of time for which the accused was remanded in custody is to be further deducted.
    

CHIEF JUSTICE

Solicitor
Attorney General's Office, Apia for prosecution
M V Peteru Law Office for accused