Police v Pelesasa [2014] WSSC 137 (16 May 2014)

IN THE SUPREME COURT OF SAMOA
Police v Pelesasa [2014] WSSC 137

Case name:	Police v Pelesasa
Citation:	[2014] WSSC 137
Decision date:	16 May 2014
Parties:	Police (Prosecution) Andy Pelesasa, male of Vaoala. (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	In respect of this matter Andy you are convicted and sentenced to 12 months in prison but it is directed by the court that you serve this term at the Olomanu Juvenile Facility for young offenders. Any time that you have spent in custody awaiting sentence is to be deducted from that 12 months. For the purposes of the record there will also issue the usual Coroners Finding confirming that the deceased in this matter Victor Pelesasa a male of Vaoala died on 29 September 2013 at Motootua Hospital as a result of head injuries sustained in an unlawful assault and that the defendant in this matter has been dealt with according to law.
Representation:	L Su’a-Mailo for prosecution T R Faaiuaso for defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:	Police v Ofoia [2008] WSSC 10 Police v Salealii [2010] WSSC 139 Police v Simanu (2007)
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

ANDY PELESASA, male of Vaoala.
Defendant

Counsel: L Su’a-Mailo for prosecution
T R Faaiuaso for defendant

Sentence: 16 May 2014

SENTENCE

1. The defendant appears for sentence on a charge of manslaughter to which he has pleaded guilty. The police summary of facts indicates he is a 17 year old male of Vaoala and Tufuiopa single and at the time of this offence working as a groundsman. The deceased is 19 years of age also of Vaoala and Tufuiopa. He is the older brother of the defendant.
2. The facts are that on the 29^th September last year at about midnight at Vaoala the defendant and the deceased were at home. They heard a person making alot of noise from the road. The person was from their neighbourhood and they knew who it was. He had a habit of doing this whenever he got drunk. In fact he was well-known around the area for such behaviour.
3. As the person got closer to the house the deceased got up and went to the road. When he arrived he confronted the man and the two of them began struggling and wrestling. They ended up on the ground. The defendant who was still at home heard what was going on and grabbed a piece of timber and ran to the road. Obviously to assist his brother. When he got to the road he saw two people struggling on the ground one was on top of the other. The defendant thought at that time that his brother was the person on the ground and the noise maker was the person on top. This area of the road is very dark as it has no street lights.
4. Thinking that the person on top was the noise maker the defendant struck at the person with the piece of timber. The prosecution summary of facts said that he hit that person three times on the head. The person on top then fell over and the defendant left the scene. People by that time had been attracted by the commotion and were arriving at the scene. They found the deceased lying on the ground and rushed him to hospital.
5. According to the doctor who examined the deceased when he arrived at hospital he noted a young man who was unconscious and bleeding from head injuries. He also had bruises to his eyes and was bleeding from the nose. Unfortunately his injuries were too severe and he passed away shortly after arriving at hospital. A post mortem noted that he had suffered multiple fractures to his skull. There were also lacerations to the back of his head consistent with strikes from a piece of timber. There were also signs of blunt force trauma to the deceaseds left arm and back which indicates that not all blows landed on the deceaseds head some were deflected to his arm and back.
6. The post mortem concluded that death was due to internal bleeding as a result of the skull fractures and head injuries. The defendant that night was shocked to find out the person he had assaulted was in fact his own brother. He was arrested that same night by the police and this has led to his court appearance this afternoon for sentence.
7. This indeed is a tragic case. Counsel for the defendant has suggested that it should be treated as a special case because the defendant by mistake killed his brother. But that overlooks the fact that the defendant killed a person. In fact he thought the person he was assaulting was someone else. He had gone to the scene armed with a length of timber intending to confront the person making the noise and uttering swear words. His intent was to do harm to that person and it was by mistake that he did harm to the wrong person. If not for that mistake it would be the noisemaker the defendant would have been charged with killing. That is what makes the defendants conduct criminally culpable.
8. The maximum penalty for manslaughter is life imprisonment. In considering an appropriate penalty I bear in mind that manslaughter is notoriously difficult to deal with. Because the varieties of circumstances are as noted by our Court of Appeal in cases such as Nepa infinite both in degree and circumstance. In other words all cases are different. The prosecution have asked for a 8 year start point for sentence. Counsel for the defendant has suggested that perhaps a non custodial penalty should apply.
9. It would have been helpful if counsel had referred the court to relevant authorities involving cases where one brother has killed another brother. There have been such cases. For example Police v Ofoia [2008] WSSC 10 where the defendant killed his younger brother who had come home drunk obnoxious and abusive and who started fighting him. In that case the court imposed a term of imprisonment albeit not a lengthy term. There was also the case of Police v Salealii [2010] WSSC 139 a decision of mine where one brother ambushed the other brother who was sleeping. In that case the defendant used rocks to cause severe and fatal head injuries to his older brother. The end sentence in that matter was 5 years in prison.
10. There is no doubt in my mind an imprisonment term must be imposed for your case because a human life has been lost and because you used a weapon. But I do not accept the prosecution suggestion that 8 years is an appropriate start point. In my respectful view a period of 5 years is commensurate with the circumstances of this matter. But that must be upgraded to 6 years because this is a case where a weapon was used namely a length of timber.
11. From that start point of 6 years however Andy you are entitled to certain deductions which I will now make. For your guilty plea which has saved the courts time and limited resources I will deduct one-quarter of the term a period of 18 months leaves a balance of 54 months.
12. I accept that the behaviour of the noise maker which caused you to go to the road in the first place was provocative and that is what motivated you to go to the scene in the first place armed with a weapon. And that when you got there it appeared to you that your brother was on the receiving end of an assault by the noisemaker. You were acting under provocation and you swung your weapon in order to assist your brother. For those factors I will award a further discount of 12 months from your sentence leaving a balance of 42 months.
13. You have a good probation report, it speaks well of your service to your aiga. There are references attached to that report from your faifeau and from your village representative. Your family speaks well of you. You have a clean criminal record. For those matters I will deduct a further 6 months leaves a balance of 36 months. The probation office pre-sentence report confirms that the matter has been reconciled within your family as it should be. For that I will deduct 3 months leaves a balance of 33 months.
14. You are only a young man, you are 17 years of age and it is regretful and unfortunate that you appear on such a serious matter at a young age. But I do hope Andy you put this matter behind you and that on your release from prison move on to a productive life. Your age qualifies you for a further discount as noted by like cases such as the judgment in Police v Simanu in 2007. I will therefore make a further deduction of 12 months leaves a balance of 21 months.
15. This is indeed a sad matter for you because of the consequences of what you did. It is something you will probably carry for the rest of your life. That is a punishment in itself beyond anything the court can impose. Because of that factor I will make a further deduction from your sentence of 9 months leaves a balance of 12 months.
16. In respect of this matter Andy you are convicted and sentenced to 12 months in prison but it is directed by the court that you serve this term at the Olomanu Juvenile Facility for young offenders. Any time that you have spent in custody awaiting sentence is to be deducted from that 12 months.
17. For the purposes of the record there will also issue the usual Coroners Finding confirming that the deceased in this matter Victor Pelesasa a male of Vaoala died on 29 September 2013 at Motootua Hospital as a result of head injuries sustained in an unlawful assault and that the defendant in this matter has been dealt with according to law.
    

JUSTICE NELSON