Police v Nielsen [2014] WSSC 45 (26 August 2014)

SUPREME COURT OF SAMOA

Police v Nielsen [2014] WSSC 45

Case name: Police v Joe Nielsen

Citation: [2014] WSSC 45

Decision date: 26 August 2014

Parties: POLICE Prosecution AND JOE NIELSEN male of Malie. Accused

Hearing date(s):

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
L Su’a-Mailo for prosecution
T Leavai for accused

Catchwords:
sentence, aggravating and mitigating features

Words and phrases:

Legislation cited:

Cases cited:
Police v Nielsen [2014] WSSC 22

Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

JOE NIELSEN male of Malie.
Accused

Counsel
L Su’a-Mailo for prosecution
T Leavai for accused

Sentence: 26 August 2014

S E N T E N C E (NO. 2)

1. As is shown from my sentencing decision in Police v Nielsen [2014] WSSC 22, this case was to be sentenced on 10 June 2014 but because of information given by members of the accused’s family to defence counsel that the accused was having daily attacks of epilepsy leading up to sentencing, I decided to call for affidavits from those members of the accused’s family and a psychiatric report on the alleged worsening of the accused’s epileptic condition. Those affidavits were produced by the defence. Likewise, a report from a doctor with many years of medical experience with patients with epileptic conditions. The members of the accused’s family were then called on 13 August for cross-examination by counsel for the prosecution and the doctor for cross-examination by counsel for the accused. At the conclusion of the cross-examinations, I decided not to believe the members of the accused’s family about the alleged worsening of the accused’s condition.
2. I will therefore proceed to sentence the accused on the basis of the aggravating and mitigating features as well as the legal principles set out in my decision in Police v Nielsen [2014] WSSC 22. In doing so, it is to be noted that the accused was initially charged with murder. The neck injuries inflicted by the accused with an axe partially severed the deceased’s neck. The deceased’s windpipe and blood vessels supplying blood to the brain were completely severed. However, after issues of automatism due to the accused’s serious and permanent epileptic condition were raised by defence counsel, the prosecution, perhaps out of charity, reduced the charge to manslaughter.
3. Perhaps I should also point out here, that the two psychiatric reports produced to the Court are conflicting as to whether the accused’s epileptic condition had any connection to the offending. This has left the Court in uncertainty whether for sentencing purposes the accused’s epileptic condition should be considered as a mitigating factor relating to the offending or as a mitigating factor personal to the accused. In this situation, I have decided to take into account the accused’s epileptic condition as a mitigating factor personal to him.
4. Having regard to the aggravating features of the offending, I will take 15 years as the starting point for sentence. I will deduct one year for the accused’s previous good character. That leaves 14 years. I will deduct 2 years for the ifoga and the consequential reconciliation between the family of the accused and the family of the deceased. That leaves 12 years. I will then deduct a 25% discount for the plea of guilty. That leaves 9 years. I will show mercy on the accused because of his serious and permanent epileptic condition and deduct a further 3 years. That leaves 6 years. The accused is sentenced to 6 years imprisonment.
5. As special conditions of the accused’s sentence, the prison authorities are ordered: (a) to ensure that the accused at all times has an adequate supply of his medication for his epileptic condition, (b) to provide medical treatment and assistance if and when needed by the accused for his epileptic condition, and (c) not to leave the accused alone by himself at any time as his epileptic seizures are irregular and unpredictable.
   

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CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia, for prosecution
Leavai Law Firm for accused