Police v Pesefea [2018] WSSC 123 (8 October 2018)

SUPREME COURT OF SAMOA
Police v Pesefea [2018] WSSC 123

Case name:	Police v Luma Pesefea
Citation:	[2018] WSSC 123
Sentence date:	8 October 2018
Parties:	POLICE v LUMA PESEFEA male Lefagaoalii and Foailuga.
Hearing date of Submissions:	7 September 2018
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Convicted and sentenced on the charge of manslaughter to 4 years and 4 months imprisonment less time in remanded in custody.
Representation:	L Sio for prosecution S Leung Wai for the Accused
Catchwords:	charge of manslaughter, ‘heavily intoxicated’ on premises presumably licensed to sell alcohol Despite their state of intoxication, it seems that both were nevertheless served alcohol,
Words and phrases:	offending involved actual violence, used a rock as a weapon striking the deceased’s head, you were on top of the victim, it is a loss resulting from a violent death,
Legislation cited:
Cases cited:	R v Raipira [2003] NZCA 217; [2003] 3 NZLR 794, the New Zealand Court of Appeal, (Re v Leuta [2001] NZCA 283; [2002] 1 NZLR 215 at p 229) Police v Fiva [2008] WSSC 89 (28 October 2008) Sapolu CJ, Police v Ah Loo [2008] WSSC 18 per Sapolu CJ, (Police v Taumaloto [2017] WSSC 160, Police v Fati [2011] WSSC 145. Attorney-General v Mani [1994] WSCA 16).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

LUMA PESEFEA male Lefagaoalii and Foailuga.
Accused

Counsel:
L Sio for prosecution
S Leung Wai for the Accused

Sentence: 8 October 2018

SETENCE

1. Luma, you appear for sentence on one charge of manslaughter which carries a maximum penalty of up to life imprisonment.

The Offending

2. According to the Amended Summary of Facts accepted by you and your counsel, on Saturday 21st January 2017 between 8.00pm and 10.00pm, you attended a concert at a bar at Safotu Savaii. At the concert was the deceased.
3. Both you and the deceased were heavily intoxicated. That night, when you and the deceased were outside on the deck of the bar standing by the edge of the deck, you and the deceased got into an argument. As a result, a scuffle ensued between the two of you.
4. In the course of the scuffle, the two of you fell off the deck and onto the ground where rocks and empty beer bottles are scattered. You managed to get on top of the deceased, you grabbed a rock lying on the ground and then hit the deceased’s head with the rock.
5. When you saw the deceased’s friend approaching, you immediately ran away from the scene.
6. The deceased was taken to Safotu District Hospital where he was pronounced dead on arrival. A post mortem was carried out on the 3rd of February 2017 where the cause of death was noted as blunt force head injuries on the right side of the head. Severe force would be required to produce these head injuries according to the Pathologist’s report.
7. You were initially charged with murder. On reduction to manslaughter, you entered a guilty plea.

The Accused

8. You are a 30 year old male of Lefagaoalii and Foailuga. According to your Pre-Sentence report, you are the youngest of 7 children and completed school to year 12. You initially worked your family plantation but moved to Upolu in 2014 and began working at the Farmer Joe farm.
9. You are married and have one daughter. Your wife told the probation service that you have issues with anger and alcohol, usually a very dangerous combination when seen together. You have confirmed prior convictions for unlawful entry and theft entered in 2016. Whilst your wife seems to refer in your PSR to a sentence imposed on you in the Family Violence Court, I do not have any record of such sentence except for the two convictions confirmed through your counsel. I therefore disregard any reference to sentencing in the Family Violence Court.
10. You have through your family been penalized by and paid the penalties imposed by your two villages. The village Mayor of Foailuga confirms that you are still banished from that village. You have, again through family, performed a ‘traditional apology’ presenting 5 sow, 30 boxes of tin fish, one cattle beast to the village of Foailuga.
11. An apology was also extended on your behalf to the village of Lefagaoalii where 30 boxes of tin fish, and 6 sow were presented. You have also been banished from Lefagaoalii.
12. The family of the deceased has expressed disappointment that the apology was extended through the villages but not with an ifoga directly to their family strictly in accordance with custom.
13. I have read the character references in support of you attached to your Pre-Sentence Report. These also refer to your remorse. I have had particular regard to the reference by Nanai Galumalemana Stephen Sapolu, his considered views and experience in these types of matters and his offer to provide support to you. He also refers to your remorse for the wrongs committed by you and the pain that you have caused. He asks for mercy on you.

The Victim

14. The victim is a 22 year old male of safotu. He was single and unemployed. A VIR was provided by Matamua Leano Nu’usila, said to be the deceased’s father. He says the funeral and expenses amounted to approximately $10,000.00.
15. He says the deceased was the right hand of their family. They were shocked to get news of the death up to now and to date, their mind is still not settled in relation to the relationship with you or your family.

Aggravating Factors:

16. The aggravating features of your offending are:
    1. That your offending involved actual violence;
    2. You used a rock as a weapon striking the deceased’s head with the rock;
    100. In the circumstances, you were on top of the victim, the victim in a vulnerable position as you struck him with the rock; and
    4. The harm caused by your offending.
17. Prosecution submits that the loss of life is an aggravating feature of your offending. That as I have said in an earlier matter is an element of the offence of manslaughter, not an aggravating feature of the offending in these circumstances.
18. For the purposes of sentencing, I also do not consider your prior conviction in 2016 as aggravating. That was for an offence of a different nature. You do not however get a discount for prior good character.

The mitigating features

19. In respect of your matter, I accept as mitigating your remorse for your actions. This is reflected in the various references submitted on your behalf but in particular, from Mr Sapolu. I also take into account the apology on your behalf rendered through your villages, your punishment and banishment and your guilty plea on the reduction of the charge to manslaughter.

Discussion

20. Luma, your appareance for sentence today for the charge of manslaughter is a tragedy for many people affected by your offending. For the deceased, he has lost his life on a Saturday night out meant no doubt to be an enjoyable social evening. For his family, they have lost a loved son who they relied on and for everyone that has lost a loved family member, that feeling of loss is one many are aware of. In this case however, it is a loss resulting from a violent death and one sadly that was avoidable.
21. For your family, they will no doubt be affected by what you are going through, particularly for your wife and your young daughter. Mr Sapolu in his lengthy reference has explained the work he has done to help you appreciate the consequences of your actions.
22. Your wife has said that you have issues with alcohol and anger. These are two very dangerous problems that when mixed together, can result in tragedy. Here, that was exactly the case. A young man has lost his life and your life will be forever changed. And again, the irresponsible consumption of alcohol to excess is a factor.
23. Prosecution seeks an imprisonment term with a start point of 8 years imprisonment. The accused through counsel seeks a start point of 5 years imprisonment.
24. There is no guideline judgment or tariff for manslaughter sentencing. In R v Raipira [2003] NZCA 217; [2003] 3 NZLR 794, the New Zealand Court of Appeal in terms of sentencing for manslaughter stated:

“[128] The maximum sentence for manslaughter is imprisonment for life. This Court has emphasised that the circumstances of manslaughter vary so widely that attempts to provide guidelines according to categories risks inflexibility and would divert the sentencing inquiry from the degree of culpability in the particular case (Re v Leuta [2001] NZCA 283; [2002] 1 NZLR 215 at p 229). Culpability is higher in cases where manslaughter results from intentional harm. In such cases, the sentence imposed must reflect the need for deterrence of intentional conduct which risks serious harm or death. Other factors such as provocation or circumstances personal to the offender which may diminish responsibility may affect culpability significantly. Sentences in other cases where the death giving rise to liability for manslaughter is a result of intentional violence may provide guidance. But the culpability of each offender needs to be assessed in the particular context.”

25. In a similar vein in Police v Fiva [2008] WSSC 89 (28 October 2008), Sapolu CJ stated:

“[29] Those cases show that the sentences imposed in manslaughter cases have ranged from non-custodial sentences to lengthy terms of imprisonment which reflects the wide range of varying circumstances in which the offence of manslaughter has been committed. As a consequence, it has not been possible to set a tariff sentence or starting point which is applicable across the board to all cases of manslaughter.”

26. I have reviewed the various authorities referred to by Prosecution as well as counsel for the accused. This case involved the intentional assault of the deceased with a rock striking his head. Culpability is higher as a result. There is no question as accepted by accused counsel also that a custodial sentence is warranted.
27. Prosecution refers to Police v Ah Loo [2008] WSSC 18 per Sapolu CJ to seek an 8 year start point for sentence. That sentence commenced with a 6 year start point for sentence.
28. Alcohol fueled violence resulting in death is a common occurrence in the community. That a person has lost their life cannot be understated. It is a serious offence.
29. Having reviewed the authorities cited by both counsel including other sentences imposed by the Court (Police v Taumaloto [2017] WSSC 160 (husband assaults wife slap and fall downstairs causing death – 5 ½ year start point); and Police v Fati [2011] WSSC 145 (assault with a rock – end sentence 4 years imprisonment); Attorney-General v Mani [1994] WSCA 16), I adopt 7 year start point for sentence as appropriate. This reflects the seriousness of your assault on the victim using a rock targeting his head. When you struck the deceased, you must have done so with severe force as noted by the Pathologist.
30. From the 7 year start point, I deduct 8 months for your remorse and 4 months for your banishment and village penalty. For the apology extended on your behalf, I deduct 6 months. For your guilty plea, I deduct 14 months from the balance leaving an end sentence of 4 years and 4 months imprisonment.

Finals remarks:

31. What appears from the Summary of Facts and the other material before me is that both the deceased and the Defendant were ‘heavily intoxicated’ on premises presumably licensed to sell alcohol. Despite their state of intoxication, it seems that both were nevertheless served alcohol.
32. Licensed premises in Samoa must abide by requirements for the responsible service of alcohol to patrons. Where patrons are intoxicated, service must be refused. Too often it seems, licensed premises ignore these obligations and continue to serve alcohol to heaviliy intoxicated people.
33. The sale of alcohol to intoxicated persons is a licensing issue. As I understand it, liquour licenses issued by the Liquor Board rightly include conditions for the responsible service of alcohol. The Liquour Board may wish to consider (a) further programs to raise awareness of these licence obligations amongst licensees; (b) the enforcement of signage for the responsible service of alcohol on licensed premises in prominent locations; and (c) where there are breaches of this obligation, appropriate action.
34. If the Liquor Board has not investigated a possible breach by the licensed premises in this matter, it may wish to do so given the alleged facts of this case.

Result:

35. Accordingly, you are convicted and sentenced on the charge of manslaughter to 4 years and 4 months imprisonment less time in remanded in custody.

JUSTICE CLARKE