Police v Pene [2021] WSSC 73 (18 March 2021)

IN THE SUPREME COURT OF SAMOA
Police v Pene [2021] WSSC 73 (18 March 2021)

Case name:	Police v Pene
Citation:	[2021] WSSC 73
Decision date:	18 March 2021
Parties:	POLICE v NELI TUPOU PENE, male of Leone (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Keli Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to twenty-two (22) months imprisonment less any time in custody.
Representation:	L. Sio for Prosecution M. So’onalole for the Defendant
Catchwords:	Manslaughter – defendant punched victim twice – ifoga performed – first offender – early guilty plea – remorseful – low level of culpability – custodial sentence.
Words and phrases:
Legislation cited:	Crimes Act 2013, ss. 92; 102
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

NELI TUPOU PENE, male of Leone

Defendant

Counsel: L. Sio for Prosecution
M Soonalole for the Defendant

Sentence: 18 March 2021

SENTENCING OF TUATAGALOA J

1. The defendant appears for sentencing on the charge of manslaughter^[1] causing the death of Toalua Petelo Mikaele, a 30 year old male of Leauvaa-uta.

The offending

2. The summary of facts prepared by the prosecution was read out and confirmed by the defendant which basically says:
   • The deceased who is from Leauvaa-uta was invited by the defendant’s younger brother to their grandmother’s birthday celebration at Leone.
   • The defendant was with his younger brother, the deceased and others having drinks behind their house at Leone sometime in the afternoon while the birthday celebration was being held at a church hall. The defendant was present but was not drinking.
   • In the evening, the defendant’s older brother and his wife came home and the wife went to the outside kitchen to prepare dinner. The defendant was with the deceased and others who were still drinking in an open house opposite the outside kitchen where the older brother’s wife was preparing dinner. Accordingly, the deceased made inappropriate gestures to the defendant’s sister in law to which the sister in law responded to the deceased with rude remarks. This angered the defendant’s younger brother (friend of the deceased) and he engaged in a heated argument with his sister in law. At that time, the family had returned from the birthday celebrations and the defendant’s father heard the argument between his younger son and his daughter in law and walked over and slapped the younger son.
   • The deceased at the time was said to have been just standing there and the defendant walked over and punched him twice. The first punch caused the deceased to stumble backwards and the second punch caused the deceased to fall and his head hit the rocks on the ground. The defendant then walked away.
   • The deceased was motionless when he hit the ground and was rushed to the Motootua Hospital. The deceased was pronounced dead 30 minutes after arrival.

Pre-sentence report

3. The version of what as relayed by the defendant in the pre-sentence report is a little different from the prosecution’s summary of facts (further amended). The defendant in the PSR says that the deceased was very intoxicated and kept swearing out loud while his family was having a talk after their grandmother’s birthday celebration. He tried calming him down but at one point the deceased challenged him and that is when he punched the deceased once on the jaw which caused him to fall.
4. There is a written testimonial attached to the pre-sentence report from his faifeau of the Methodist Church at Faleasiu-tai who speaks highly of the defendant as an active member of his church. His partner speaks of him as hard-working and respectful in nature.

The defendant

5. The defendant is 26 years’ old and lives with his de-facto partner and child with his partner’s family at Faleasi’u. According to the pre-sentence report dated 3^rd March 2021 he is the eldest of five children. The pre-sentence report says that the defendant was only at Leone for his maternal grandmother’s birthday when the unfortunate incident happened.
6. The defendant is a first offender and has pleaded guilty. The defendant is said to be truly remorseful.

The injuries

7. The deceased was said to have no vital signs when arrived at the hospital. In other words, he was dead on arrival. The medical report says – No external lacerations or scalp injuries; no stab wounds.

Victim impact report[2]

8. According, to the VIR, the deceased’s mother is still devastated and hurt from what happened to her son. the defendant family having performed a ‘ifoga’ to her husband’s family. She says that their family is yet to bury her son as his body is still in the morgue.
9. A post-mortem is required but because the defendant has pleaded guilty or has admitted to being responsible for the death the body of the deceased can now be released without the need for a post mortem to be carried out after having sentenced the defendant.
10. The mother also confirms that the defendant’s family have carried out an ifoga to which although they have accepted it could never bring back her son.

Aggravating factors

11. I accept that the defendant’s retaliation by punching the deceased twice may have been disproportionate given that the deceased at the time was just standing there and no longer doing anything or to provoke such action that was carried out by the defendant.
12. The Prosecution referred to a number of cases with similar circumstances and recommended a starting point of 4 – 5 years.

Mitigating factors

13. The mitigating factors personal to the defendant is previous good character (first offender) and early guilty plea. Other factors considered in favor of the defendant is the ifoga by his family and his remorse.
14. Counsel for the defendant recommends a non-custodial sentence of two years’ supervision saying that in punching the deceased, there was no intention that carrying out such action would result in death; the defendant’s intention was to calm down the deceased who was swearing at the time his family had come together and were having a talk.

Discussion

15. There is no doubt that the level of violence where death ensued is substantial. Where an offending has cost someone’s life, the starting point is a custodial sentence unless there are exceptional circumstances warranting a non-custodial sentence. The Court must hold the defendant accountable for his actions.
16. A custodial sentence in itself is a deterrent in that the sentence sends a message to the defendant and also to people in the community that there are consequences for such behaviour. In terms of the offending, I accept that the deceased behaviour by winking at the defendant’s sister in law while at the defendant’s home at Leone and swearing out loud while the defendant’s family were having talks is provocative to the males of a family.
17. I agree with Counsel for the defendant that he did not intend to cause death or any serious injury(ies) to the deceased and that he only intended to shut him up or to stop the deceased from swearing or making a lot of noise while his whole family were having a talk. In saying that, the defendant could have approached the deceased without having to resort to violence by asking him to leave but instead he punched him not once but twice. It is one of those very unfortunate incidents but it happened and a life is lost.
18. The circumstances of this offending shows a low level of culpability on the defendant.

Starting point

19. A starting point of four (4) years is most appropriate taking into account provocation, less twelve (12) months for prior good character and further six (6) months for the ifoga and remorse on the part of the defendant. A 25% discount is further deducted for the defendant’s early guilty plea which amounts to eight (8) months. This leaves twenty-two (22) months.
20. The defendant is convicted and sentenced to twenty-two (22) months imprisonment less any time in custody.
    

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, ss92 & 102
^[2] Victim Impact Report, dated 25 February 2021