Police v Ulugia [2011] WSSC 41 (12 April 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

JOSEPH ULUGIA a.k.a JOSEPH IAFETA
male of Vaiusu-uta and
HYNIE GODINET male of Vaiusu-uta
Defendants

Counsel: Precious Chang and Leone Su'a-Mailo for prosecution
Semi Leung Wai for Joseph Ulugia or Joseph Iafeta
Rosella Papalii for Hynie Godinet

Submissions: 11 April 2011
Sentence: 12 April 2011

SENTENCE

1. The two accuseds and three other youths of the village of Vaiusu were charged with the crime of murder. During the trial, the charge against one of the five accuseds was withdrawn whilst another was discharged after a no case to answer submission was upheld. The third accused was acquitted by the panel of assessors. The two accuseds were both convicted of the crime of manslaughter for which they now appear for sentence.
   

Circumstances of the offending

2. On the evening of the 2nd June 2010 the two accuseds and other youths of the village of Vaiusu were watching a volley ball game at one of the gymnasium at the Tuanaimato Sports Complex. During the game some of the spectators called out to the score keeper (deceased) to show them the score board. When the deceased rudely stuck out his fingers some of the Vaiusu youths left their seats and approached the deceased. The security officers intervened and removed the Vaiusu youths, including the two accuseds, and escorted them to the front gate by the main road.
   
3. Instead of going home the two accuseds and other Vaiusu youths went to the rear of the gymnasium where the deceased and another man were smoking by the rear door. Other people were also present. At very close range the accused Hynie threw a rock which struck the deceased on the face, whilst the accused Joseph gave chase to the deceased's companion who ran inside the gymnasium. On his return, Joseph joined in the assault of the deceased who was then lying on the ground.
   
4. As a result on multiple injuries to his head and face resulting in the failure of the vital centres of the brain, the deceased died. He was dead on arrival at the hospital.
   
5. For the purpose of this sentence; it is common ground that other than the two accuseds, there were others who were involved in the assault of the deceased.
   

The Deceased

6. The deceased was 37 years. Nothing else has been given to the court concerning the deceased and his family as no victim impact report has been provided.
   

The Accused Hynie

7. At the age of 22 this accused is described in the probation report following an interview with his biological mother to have a drinking problem. Before he committed this present offence he consumed spirits with his friends outside the gymnasium before going inside the gymnasium to watch the game which led to the assault of the deceased. To finance his drinking and smoking addictions he relies on others like his mother and father. His upbringing has undoubtedly contributed to his present offending. In June 2009 he was according to the probation report placed on probation following his conviction on a charge of willful damage. If that is correct it means he reoffended just before his term of probation imposed in June 2009 has expired.
   
8. Hynie has expressed to the probation his deep sense of remorse and blames his state of drunkenness as the cause of his offending. The same so called sense of remorse was expressed to the Probation Service in 2009 in the probation report dated 17 June 2009 for his 2009 offending. The heavy costly fine imposed by the village of Vaiusu on Hynie's family for his 2009 offending does not appear to have changed the accused's anti-social conduct.
   

The Accused Joseph

9. Aged 21, single and unemployed and is a first offender, this accused is portrayed in the probation report as an intelligent young man whose studies at the University of South Pacific was cut short after his first year of study as a result of circumstances beyond his control. As a result of his mother's death following the marriage breakdown the accused and his siblings were placed under the care of his maternal aunt.
   
10. This accused has expressed remorse. Until this offence was committed he has been successful in concealing from his family and caregiver his love for alcohol consumption.
    

Discussion

11. The attack on the deceased was short but nonetheless brutal. I accept the submission of counsels for the accuseds that there was an element of provocation when the deceased, stuck out his fingers in a rude and provocative manner, not once but several times, to a crowd comprising of the Vaiusu youths and members of their families. There is also a caution statement by one of the accused that he was also collared by the deceased before the accuseds were evicted from the gymnasium by the security officers. The assault occurred soon after the accuseds were evicted.
    
12. Although the evidence was somewhat conflicting, the testimony clearly established that the accused Hynie threw the rock which first struck the deceased. The two accuseds and others then punched and kicked the deceased who was lying defenselessly on the ground before they flee from the scene. It cannot be denied that when the accused and the others of Vaiusu village went to the rear they had formed the intent to assault the deceased.
    
13. By its very nature the crime of manslaughter involves a wide range of circumstances that it defies attempts to determine an appropriate range of sentence. Police v Lagalaga (2008) WSSC 103. 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 sentences. Police v Faapiano & others (30/6/20100 Supreme Court of Samoa.
    
14. It is accepted that when sentencing 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. Rehabilitation plays a significant role when sentencing young offenders. But 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, so that an offence committed by a young offender in circumstances so grave, severe and serious, the protection of society must prevail and deterrence and retribution must outweigh other considerations.
    
15. There is no doubt that a custodial sentence is appropriate in the circumstances. Mr Leung Wai in his submissions emphasised mitigating circumstances and made no attempt to persuade the court to impose an alternative sentence. The important issue is the starting point of the sentencing process and whether the accuseds are entitled to parity taking into account their culpability and mitigation personal circumstances.
    
16. The accused Hynie might be said to be more culpable. He threw a rock at close range which struck the deceased on the deceased before he continued to punch and kick the deceased. However the accused Joseph ought to know and should have known that the deceased was badly hurt whilst lying defenselessly on the ground when Joseph joined in the assault. A different starting point for each accused in my view is not justified in the circumstances. After all they both walked together to the back of the gymnasium to assault the deceased.
    
17. In the circumstances bearing in mind the aggravating and mitigating circumstances of the offending which involved a group of assailants I take 7 years as a starting point.
    
18. For the accused Hynie I will deduct 12 months for the ifoga. And for his young age I will deduct another 18 months. He will serve 4 years and 6 months imprisonment less any time he spent in custody.
    
19. For the accused Joseph I will deduct 12 months for the ifoga and a further 18 months for his young age. For his previous good record and remorse I will deduct a further 18 months. He will serve 3 years imprisonment less any time he spent in custody.
    

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JUSTICE VAAI