Police v Simeti [2020] WSSC 18 (9 March 2020)

SUPREME COURT OF SAMOA
Police v Simeti [2020] WSSC 18

Case name:	Police v Simeti
Citation:	[2020] WSSC 18
Decision date:	9 March 2020
Parties:	POLICE v IAKOPO SIMETI a.k.a JACOB SIMETI, of Fatuvale, Safune and Falelauniu.
Hearing date(s):	2 & 3 December 2019, 22 January 2020
File number(s):	S1061/19
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE DARYL CLARKE
On appeal from:
Order:	- On the charge of murder, you are convicted and sentenced to life imprisonment with a minimum imprisonment term of 17 years imprisonment. - On the charge of attempted murder, I accept 6 year start point of imprisonment. I deduct 6 months for your prior good character, 6 months for your remorse and 15 months for your early guilty plea. Accordingly, convicted and sentenced to 3 years and 9 months’ imprisonment, concurrent. - On the charge of armed with a dangerous weapon, 1-year imprisonment concurrent.
Representation:	A. Matalasi for Prosecution H Wallwork for the Accused
Catchwords:	armed with a dangerous weapon – attempted murder – degree of planning and calculation –early guilty plea –– level of culpability involved in the crime – life imprisonment with a minimum imprisonment term–– mitigating factors – murder – sentence
Words and phrases:
Legislation cited:	New Zealand Sentencing Act 2002 Sentencing Act 2016 ss.65, 66
Cases cited:	Desai v R [2012] NZCA 534 Police v Ietitaia Misialofa Tu Tuitama Police v Manuele Police v Masutele Police v Simanu’a Manuele Police v Tupuola [2017] WSSC 60 (12 June 2017)
	Police v Vesi Enele [2017] WSSC 123 Robertson v R [2016] NZCA 99 R v Frost [2008] NZCA 406. R v Harrison; R v Turner [2016] NZCA 381; [2016] 3 NZLR 602 R v Howse [2003] NZCA 178; [2003] 3 NZLR 767 R v McLean [2017] NZHC 3183 R v Mason [2012] NZHC 1849 R v Slade; Ham& [2005] NZCA 19; [2005] 2 NZLR 526
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

IAKOPO SIMETI a.k.a JACOB SIMETI, of Fatuvale, Safune and Falelauniu.
Accused

Representation:
A. Matalasi for Prosecution
H Wallwork for the Accused

Sentence Date: 9 March 2020

SENTENCING DECISION

The Charges:

1. The accused through counsel has entered a guilty to plea to the charge of murder, attempted murder and armed with a dangerous weapon on the 2nd December 2019.
2. On the 3^rd of December 2019 when the accused was scheduled to be formally sentenced, prosecution applied for an adjournment for application to be made pursuant to sections 65 and 66 of the Sentencing Act 2016 for the Court to impose a minimum period of imprisonment of not less than 17 years or more for the charge of murder.
3. I have heard submissions from both counsel and will deal first with this application before formally sentencing the accused on all charges.

The Application:

4. Section 66 of the Sentencing Act 2016 provides:
   • “66. Imposition of minimum period of imprisonment of 17 years or more - The court must make an order under section 65 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:
   • (a) if the murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice; or
   • (b) if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another; or
   • (c) if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or
   • (d) if the murder was committed in the course of another serious offence; or
   • (e) if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or
   • (f) if the murder was committed as part of a terrorist act under the laws relating to counter terrorism; or
   • (g) if the deceased was a police officer or a prison officer acting in the course of his or her duty; or
   • (h) if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or
   • (i) if the defendant has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances; or
   • (j) in any other exceptional circumstances.”
5. Section 65 provides:
   • “65. Imposition of minimum period of imprisonment for murder-(1) If a court sentences a defendant convicted of murder to imprisonment for life it may order that the defendant serve a minimum period of imprisonment under that sentence.

(2) The minimum term of imprisonment ordered must not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:

(a) holding the defendant accountable for the harm done to the victim and the community by the offending;
(b) denouncing the conduct in which the defendant was involved;
(c) deterring the defendant or other persons from committing the same or a similar offence;
(d) protecting the community from the defendant.”

6. The prosecution application is based on section 66(b), (e) and (j) of the Sentencing Act 2016.
7. The application is opposed by the accused on the grounds that the offending does not fall within any of the categories of offending covered in section 66(a) to (j).

Relevant Authorities:

8. I have been referred by counsel to the unreported Supreme Court judgments in Police v Ietitaia Misialofa Tu Tuitama (16 November 2018) and Police v Simanu’a Manuele (14 January 2019). I note that section 66 of the Sentencing Act 2016 is largely identical to section 104 of the New Zealand Sentencing Act 2002. For this reason, I have also been referred by counsel to New Zealand Court of Appeal authorities, both of which I have perused: see Robertson v R [2016] NZCA 99; R v Frost [2008] NZCA 406.
9. In R v Howse [2003] NZCA 178; [2003] 3 NZLR 767, the New Zealand Court of Appeal considered the purpose of the minimum imprisonment terms in the New Zealand Sentencing Act 2002 and stated at paragraph 58:
   • “...The purpose of a minimum period order is to achieve greater punishment, denunciation and deterrence than would be achieved by the normal period of ten years: see R v Brown [2002] NZCA 243; [2002] 3 NZLR 670, which held that culpability was at the heart of this issue. The same point was also made in R v M and D (Court of Appeal, & 299/02, 30 July 2003). Once it is determined that the instant case justifies an increase above ten years, the question becomes how much additional punishment, denunciationdeterrence is appropriate. That depends on the level of culf culpability involved in the crime or crimes for which the additional period is being imposed.”
10. In Robertson (supra), the New Zealand Court of Appeal adopted the approach to the imposition of a minimum imprisonment term at para. 18 as follows:
    • “[80] We turn to thropriate minimminimum period. There is a line of authorities in this Court explaining that a sentencing judge should approach the imposition of a minimum period under ss 103 and 104 of the Sentencing Act in the following way. First, the judge should compare the offender’s culpability with cases of murder that attract the statutory minimum of 10 years, which serves as a datum point or benchmark. Second, the judge should decide whether an additional minimum period is needed to satisfy the sentencing purposes of accountability, denunciation, deterrence and community protection. When following these processes the judge must apply the legislative policy that, in general, the presence of one or more s 104 factors justifies a minimum period of not less than 17 years; and further, that there may be cases in which the sentencing purposes in s 103(2) require that the sentence be served without parole. Third, the judge should compare sentencing decisions in other cases for reasonable consistency of outcome. As this Court explained in R v Howse and repeated in R v Bell, the primary comparison is between the individual case and the 10-year datum point. Comparison with other cases is a secondary requirement, albeit necessary and important as a check.” (emphasis added)
11. In Desai v R [2012] NZCA 534, the New Zealand Court of Appeal considered the equivalent provision to section 66 of the Sentencing Act 2016. In respect of the intention of the New Zealand Parliament through its Select Committee in passing the equivalent section 104 of the New Zealand Sentencing Act 2002, the New Zealand Court of Appeal stated:
    • “[56] What is known from the repfrt of the Select Committee is that the Select Committee envisaged that only a small number of murderers would receive a 17 yearmum non-parole period and that the circumstances would need to be exceptional.”#8221; (emphasis added)
12. In R v Harrison; R v Turner [2016] NZCA 381; [2016] 3 NZLR 602, the New Zealand Court of Appeal again considered section 104 of the New Zealand Sentencing Act 2002 and said that:
    • “[38] &#160ion 104 was enacted ined in 2002 as part of the then new Sentencing Act in response to widespread public concern about the inadequacy of sentences for murder, pularly those committed with a high level of brutality. Ther Therefore, in sentencing for murder where specified aggravating circumstances are present, s 104 requires the Judge to impose a minimum term of imprisonment of at least 17 years, unless that would be manifestly unjust. Such circumstances include a murder committed with a high level of brutality, crueltpravity or callousness, or , or where the deceased was particularly vulnerable because of his or her age, health, or any other factor.
    • [39] &#160current approach to s&to s 104 cis set out in R v WR v Williams. This Court acknowledged that relative culpability of the 10 qualifying criteria in 0;104es from case to case. Thus the applicable criteriiterion or criteria may be of greater or l or less significance. This led the Court to conclude that the manifestly unjust exception was such that the injustice must be “clearly demonstrated” before the sentencing discretion to go below 17 years could be exercised. Each case must be considered on its merits. However, the statutory minimum “may not be departed from lightly” in order to ensure application of the legislative policy of ensuring a 17-year minimum for the most serious murder cases. Departure from the minimum through the manifestly unjust exception need not be rare, but the circumstances must be “exceptional
13. In expressly considering planning and calculation in terms of offending (equivalent to section 66(b) of the Sentencing Act 2016), the Court of Appeal in Desai (supra) further explained:
    • “[58] In our view, as a matt sema semantics, the distinction drawn by Mr Dacre between pre-mtion andn and planning is not quite so clear cut as his subons tend to suggest. Dictionary definitions of pre-meditation for example commonly refer toer to planning an action beforehand as welthinking it out. As regardsgards the word “plan” it is defined as a design or scheme, “to plan” is to formulate a method by which something is to be done, while “calculated” is defined as done with awareness of all likely circumstances.10
    • [59] That said, we do with Mr&# Mr Dacre that more thst thinkihinking in the abstract about killing a person is required and that the section cl contemplates the formulation or taking of preparatory steps designed to facilitate or furt further the proposed murder. The planning does not of course have to be competent or sophisticated to qualify as planning but must be present to a heightened degree, either because of the period of time over which it has taken place or because of the degree of thought which has gone into it.
    • [60] In our view, ultiy it is a is a question of fact and degree, always bearing in mind that the purpose of the section is to capture the truly exceptional murder. The use of the wo8220;calculated” while in one sense tautologous ̵— all planning is by definition calculated — is clearly employed for emphasis reinforcing the legislative purpose.”

The Facts:

14. The facts are not in dispute and are set out in the Amended Summary of Facts dated 30 January 2020 accepted by the accused through counsel. In summary, on the 11^th May last year, the accused bought two (2) large Taula bottles and a bottle of Boom Vodka. He accompanied Solomona to his home and they drank together at Solomona’s house. Around 6pm that same evening, the accused and Solomona bought another two large Taula bottles and another large Boom Vodka bottle.
15. Later, the accused drank with others at Falelauniu. About 10pm that night, the deceased turned up at the drinking session. He had been drinking elsewhere. He was invited to join the drinking by the accused and they then continued to drink.
16. An altercation however later erupted between the deceased and the accused. The accused then went home and changed his clothes so others who had seen him earlier would not recognize him. He grabbed a small kitchen knife and returned. The time to walk from the location where they had been drinking to his home and back is about an hour.
17. When the accused returned to look for the deceased, the deceased and the second victim, the deceased’s brother, were making their way home when the accused approached them at the Falelauniu three corners. The accused saw two people and was unsure whether it was the deceased. The accused called out the deceased name, confirmed it was the deceased and then approached the deceased. Armed with the small kitchen knife, he then stabbed the deceased ‘several times’. The second victim who is the deceased’s brother then intervened but he was then stabbed by the accused also to the right arm. The second victim retreated looking for help. The accused then continued to stab the deceased:

(a) to the left side of the neck;

(b) left side of his shoulder;

(c) left elbow; and

(d) deep wound to the right flank.

18. The deceased managed to escape but did not reach home. He was later found in a faleo’o not far from his home. The accused did not render any assistance.

Discussion – Minimum Imprisonment Term:

19. The imposition of the 17 year or more minimum imprisonment term on a life sentence for murder is for circumstances of a murder characterized as ‘exceptional’ from other murders in terms of culpability. The presence of one or more of the factors set out in section 66 of the Sentencing Act 2016 justify the imposition of the 17 year or more non-parole period. Where an aggravating factor set out in section 66 of the Sentencing Act 2016 is present, section 66 which uses the word ‘must’ requires the Judge to impose a minimum term of imprisonment of at least 17 years, unless satisfied that it would be manifestly unjust to do so.
20. In this case, the prosecution submits that by virtue of section 66(b), (e) and (j), the minimum imprisonment term of 17 years should be imposed by this Court. In applying the approach in Robertson v R (supra), the Court should first compare the offender’s culpability with other cases of murder that have attracted the statutory minimum of 10 years.
21. In assessing the accused’s culpability with other cases that have attracted the 10-year minimum imprisonment term, this exercise must be carried out bearing in mind that prior to the Sentencing Act 2016, there were no similar provision to sections 65 and 66. All pre-2016 murder sentences resulted in a life sentence with defendants eligible for parole after 10 years.
22. In applying the first limb set out in Robertson v R (supra), there is therefore no assistance to be gained from pre-2016 murder cases as all defendants were automatically eligible for parole after 10 years. In prosecution submissions, four cases have been referred to including Police v Tuitama (supra). In prosecution submissions and their table of authorities, it was submitted that in Police v Tuitama (supra), the judge imposed a minimum imprisonment term of 17 years imprisonment. I have had the benefit of reading the oral judgment and hearing further from prosecution and note that the presiding judge did not impose a minimum imprisonment term and concluded that a minimum imprisonment term was not appropriate. That judgment turned significantly on the young age of the defendant, then 18 years of age.
23. In the other local authorities where 10 years applied, these have included Police v Manuele involving a double murder; Police v Masutele involving the death of the deceased due to multiple blows with an iron bar; and Police v Vesi Enele [2017] WSSC 123 involving the death of a baby flushed down the toilet.
24. The level of the accused’s culpability in this case is greater than that of the accused in Police v Masutele (supra) due to the planning involved and there being a second victim. It is however not as culpable in my view as Police v Manuele where two victims were killed using a machete. Counsel for the accused in these proceedings was counsel in that matter and advised that no application was made before the presiding judge in relation to the imposition of a minimum imprisonment term. The judge therefore did not have the benefit of hearing submissions on the Sentencing Act 2016 and the imposition of a minimum imprisonment term. It is unlikely that the judge was referred to section 66(i) of the Sentencing Act 2016 which would appear to apply, that is, “if the defendant has been convicted of two or more counts of murder, whether or not arising from the same circumstances”.
25. In terms of Police v Vesi Enele (supra), there is again no indication that an application was made for the imposition of a minimum period of imprisonment. Due to the vulnerability of the new born baby (s. 66(h)), a minimum imprisonment term of 17 years or more may have been open to the sentencing judge. These are issues that in the appropriate circumstances, prosecution should raise in sentencing.
26. At this stage of Samoan sentencing authorities for murder, the comparative analysis to other sentences remains in its infancy. Some caution in my respectful view should therefore be exercised when comparing culpability to other sentencing authorities where section 65 and 66 were not raised with the sentencing judge.
27. Now turning to this case and what prosecution has submitted, there was a degree of planning and calculation greater than many cases that come before the Courts and which often involve minimal planning by the defendant and often, quick anger. While the degree of planning and calculation is greater than generally experienced in other murders, it is not a level of calculation or planning exceptional in itself to trigger section 65(b). In terms of its brutality, cruelty, depravity or callousness, the accused’s acts certainly were each of those – and through those acts, he killed the deceased. These are very often hallmarks of most murders. However, in terms of the brutality, cruelty, depravity and its callousness, while the accused’s acts were very serious, it was not at such a ‘high level’ of brutality, cruelty, depravity or callousness such as to trigger section 66(e) in my assessment.
28. During sentencing, I also raised with counsel whether the guilty plea to the separate charge of attempted murder triggers section 66(d), namely, if the murder was committed in the course of another serious offence. In R v Slade & Hami/i>&<160;[2005] NZCA 19; [2005] 2 NZLR 526, the New Zealand Court of Appeal found that there must be a prior event which in itself must be a serious event and the murder must be committed in the course of executing that prior serious offence. An example is a robbery gone wrong that leads to a murder. In such a case, section 66(d) would likely be triggered.
29. In this case, the attempted murder was as a result of the accused’s acts to kill the deceased. It was not an act prior to the murder and therefore, s. 66(d) is not in my view triggered.
30. Section 66(j) however also provides for a minimum period of imprisonment where there are any other ‘exceptional circumstances’. In R v McLean [2017] NZHC 3183 citing R v Mason [2012] NZHC 1849, it has been recognized that an attempted murder following a murder can constitute exceptional circumstances. In my respectful view, that is an appropriate consideration. In determining the totality of your culpability, just as committing a murder in the course of another serious offence is an exceptional circumstance (s. 66(d)), so is the committing of an act of attempted murder in the course of or following the committing of the murder. For that reason, section 66(j) in this case applies. It is an exceptional circumstance.
31. Your counsel submits that for the purposes of sentencing you on the charge of murder, I should not take that into account as it is a separate charge. I do not agree with this submission as section 66 clearly contemplates circumstances surrounding the murder which can result in the imposition of a minimum non-parole period of 17 years. This is gleaned for example from section 66(d) and (f) where if the murder is committed in the course of another serious offence or as part of a terrorist activity, section 66 applies.
32. There are no circumstances that would make it manifestly unjust to impose the minimum term of imprisonment of 17 years. I have also considered the relevant New Zealand authorities and there is no basis on which to reduce that minimum imprisonment term due to your guilty plea and other mitigating factors in your favour including your prior good character.

Discussion - General

33. Iakopo, as you no doubt now appreciate, the matter for which you appear for sentence is the most serious under the law. You have taken a man’s life and in doing so, attempted to also kill another man, the deceased’s brother. You attempted to kill his brother by also stabbing him. Your actions on the 11^th May last year has forever changed your life, that of your family as well as that of the deceased and his family. In sentencing you today, I hope the gravity of what you have done is not lost on you.
34. For the victim’s family, there is nothing this Court or any person can do to bring Alapati back. I hope however that today’s sentencing will bring for his family some closure and justice for the wrong that has been committed.
35. In this case, Boom Vodka is again implicated in the offending by the accused. In Police v Tupuola [2017] WSSC 60 (12 June 2017), I referred to some of the other many cases in which various judges over a number of years have expressed serious concerns about this type of alcohol and its link to violent offending in our community. This is again another of those cases involving alcohol fueled violence linked to this type of locally produced alcohol that the Courts have described as ‘cheap jet fuel’.
36. There is real need for open and transparent community discussion about this type of alcohol, its manufacture, safety, impact and availability in our community with a view for appropriate reform and greater regulation. The failure to do so will only continue to result in more serious violence in the community that persistently follows this type of alcohol, continuing cases coming before the Courts, the unnecessary loss of life, serious injury and for other defendants like you Iakopo, the fate of imprisonment.

Result:

37. On the charge of murder, you are convicted and sentenced to life imprisonment with a minimum imprisonment term of 17 years imprisonment.
38. On the charge of attempted murder, I accept 6 year start point of imprisonment. I deduct 6 months for your prior good character, 6 months for your remorse and 15 months for your early guilty plea. Accordingly, convicted and sentenced to 3 years and 9 months imprisonment, concurrent.
39. On the charge of armed with a dangerous weapon, 1-year imprisonment concurrent.

JUSTICE CLARKE