Police v Eti [2021] WSSC 61 (3 December 2021)

IN THE SUPREME COURT OF SAMOA
Police v Eti and Anor [2021] WSSC 61

Case name:	Police v Eti and Anor
Citation:	[2021] WSSC 61
Decision date:	3 December 2021
Parties:	POLICE v POUENA TAIULU ETI, LEON MIKAELE PETELO and PANEVINO MASELINO TOMENIKO
Hearing date(s):
File number(s):	S1766/20 (as amended); S1726/20; S1768/20; S1767/20
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE
On appeal from:
Order:	- Pouena Eti: I am going to accept the prosecutor’s submission that a sentence of a conviction and custodial time served is the appropriate sentence for you. This sentence reflects the fact that you pleaded guilty to the charge of assault and have taken responsibility for your part in this event. This saved the state the time and cost of proving your guilt, and more importantly in my view it demonstrates that you taking responsibility and owning your actions, and that is an important start to your development as a young man. - Leon Mikaele Petelo and Panevino Maselino Tomeniko - The Court orders that Mikaele and Panevino be convicted of the offences particularised earlier in this sentencing, and they are each sentenced to supervision for periods of 12 months.
Representation:	I Tanielu for prosecution V Afoa for first defendant T V Lei Sam for second defendant S Chan Chui for third defendant
Catchwords:	Assault – physical harm – pack mentality -
Words and phrases:	pack mentality arising from young men excessively drinking alcohol in a public place and becoming emboldened to do things which are out of character.
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

POUENA TAIULU ETI male of Moamoa, Lalovaea and Vaitele.
First Defendant

A N D

LEON MIKAELE PETELO male of Palisi and Lalovaea.
Second Defendant

A N D

PANEVINO MASELINO TOMENIKO male of Taufusi, Leauvaa and Afega.
Third Defendant

Counsel:
I Tanielu for prosecution
V Afoa for first defendant
T V Lei Sam for second defendant
S Chan Chui for third defendant
Hearing: 29 September 2021
Sentence: 3 December 2021

SENTENCE OF PERESE CJ

1. I propose to deal with the sentences of these three defendants in the following way. The defendant Pouena Taiulu Eti pleaded to a single charge of assault. I will sentence him first, and then sentence the defendants Leon Petelo and Panevino Maselino after that.

Pouena Eti

2. The first defendant Pouena, is 17 years old. In a drunken state, he attempted to punch the male victim; luckily the male victim managed to dodge his punch which only slightly grazed the male victim on the shoulder. No lasting damage was caused to the victim.
3. What aggravates this assault is that it is something which occurs late at night on a public road. People are entitled to freely walk along Samoa’s streets at all times of the day without having to deal with thuggery behaviour like that of the defendant Pouena.
4. Fortunately for you Pouena your family and employer stand behind you. You are described in your probation report as someone who is obedient and humble, and there is a suggestion that peer pressure has played a large part in your offending. I do not disagree. Pouena, you are a young man, and you must choose your friends carefully.
5. I am going to accept the prosecutor’s submission that a sentence of a conviction and custodial time served is the appropriate sentence for you. This sentence reflects the fact that you pleaded guilty to the charge of assault and have taken responsibility for your part in this event. This saved the state the time and cost of proving your guilt, and more importantly in my view it demonstrates that you taking responsibility and owning your actions, and that is an important start to your development as a young man.

Defendants Leon Mikaele Petelo and Panevino Maselino Tomeniko

6. These two defendants aged 22 and 17 years respectively, were found guilty in a Reserved Decision given by me.
7. The evidence was really fairly clear and convincing, and I found Mikaele guilty of assault on Lila Ale, when he dragged her along the middle of the road; I also found Panevino Tomeniko guilty of being armed with a dangerous weapon – the rock, which thankfully he discarded and did not throw at either of the victims. I have also found them guilty of theft of a backpack that was being carried by the male victim.
8. I formally record that I found them not guilty of the joint assault charge against them. The only evidence that might possibly relate to a charge of assault concerned these defendants and the male victim fighting along the street. I am not prepared to attribute culpability for the fighting to either the defendants or the male victim. The evidence is simply not compelling enough to show whether the defendants attacked the male victim or were fighting to defend themselves.
9. I have had the benefit of reviewing a pre-sentence report prepared by the probation in relation to Panevino Tomeniko, dated 16 November 2021. The pre-sentence report speaks of a cheerful obedient and pleasant individual who is an active church goer and participates in church events on regular basis. His village mayor Afioga Tuilau Sanele Paola has provided a character reference which speaks of his good nature and being a quite youth within the village.
10. Leon Mikaele Petelo’s pre-sentence report refers to the family testimony from Leon’s father, Mikaele Petelo. Mr Petelo says his son is good-natured and obedient, but that he has a tendency to socialise with troublesome youth within their village.
11. I consider that Mr Petelo (Snr) correctly identifies the root cause of this offending. It is plausible that the Mikaele’s actions, along with those of Panevino and Pouena, were the result of a pack mentality arising from young men excessively drinking alcohol in a public place and becoming emboldened to do things which are out of character.
12. But let us not mince words - the defendants’ actions were very poor, they were not actions that you could be proud of. You let yourselves and your families down. In acting in a pack mentality, you Mikaele and Panevino chased after a young couple simply walking along the road, to do physical harm to them. How would you react if someone had done that to people you love and care about – your sister and her husband, your brother and his wife? This kind of behaviour is simply unacceptable in our community.
13. The Court orders that Mikaele and Panevino be convicted of the offences particularised earlier in this sentencing, and they are each sentenced to supervision for periods of 12 months.

CHIEF JUSTICE