Police v Niko [2024] WSSC 26 (1 May 2024)

IN THE SUPREME COURT OF SAMOA
Police v Niko & Anor [2024] WSSC 26 (01 May 2024)

Case name:	Police v Niko & Anor
Citation:	[2024] WSSC 26
Decision date:	01 May 2024
Parties:	POLICE (Informant) AND TUPE JACOB NIKO also known as TJ NIKO, male of Taufusi (First Defendant) AND AKUINO NIKO, male of Taufusi (Second Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Senior Justice Nelson
On appeal from:
Order:	On the charge of manslaughter Tupe you will convicted and sentenced to 7 years in prison commencing today. Akuino - You are going to begin a term of supervision today. I am requiring the Probation Office submit a Supplementary Report recommending how long the term, also as to conditions of your supervision and what programs they recommend you attend and any other matters they wish to draw to the courts attention. I will adjourn the matter to the 24th of May at 12:30pm for a Supplementary Pre-Sentence Report.
Representation:	F. Ioane for prosecution L. Taimalelagi for defendants
Catchwords:	- Unlawful act namely assault – manslaughter -
Words and phrases:
Legislation cited:
Cases cited:	Nepa v Attorney General [2010] WSCA 1 Police v Tupuola [2017] WSSC 60 Police v Vitale [2017] WSSC 151.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

TUPE JACOB NIKO also known as TJ NIKO, male of Taufusi.
First Defendant

AND:

AKUINO NIKO, male of Taufusi.
Second Defendant

Counsel:
F. Ioane for the prosecution
L. Taimalelagi for the defendants
Sentence: 01 May 2024

S E N T E N C E

1. The defendants in this matter are brothers. At the time of the offending the first defendant Tupe or TJ was 25 years old and his brother the second defendant was 16 years old according to the accepted Police summary of facts.
2. They have pleaded guilty to a charge that at Vaimea on 25 December 2019 by an unlawful act namely assault they caused the death of Brian Mikaele Toa a male of Taufusi and Vaimea and thereby committed the crime of manslaughter.
3. It is another sad example of young men drinking to excess and the facts indicate that the fatal incident was initiated by the older brother Tupe who it is clear from his previous conviction record is no stranger to violence. And that the younger brother foolishly followed and joined his older brother in the attack upon the deceased.
4. On 24 December 2019 at Vaimea around 11:00pm, the deceased returned home after drinking alcohol with a group of friends. Went straight to his room to change and prepare for church that evening as everyone in his family were getting ready for Christmas eve church service. The deceaseds grandmother approached the deceased and advised him not to attend the church service as he is intoxicated. The deceased walked out of the house to the main road to go to Lilys Cakes building
5. The first and second defendants had been drinking together that night and ended up in front of Lily’s Cakes, Vaimea at the end of the night. A fateful convergence. The deceased met the second defendant walking to buy cigarettes whilst the first defendant stayed in front of Lilys Cakes where he fell asleep and only awoke when the second defendant returned later and woke him up.
6. The security guard of Lilys Cakes lives in a small house next to the building. The deceased arrived and stood at the door of the security guards house and started talking to the guard who was lying inside the house. The security guard got up and made food for the deceased and invited him to eat. The deceased entered the securitys house sat on the chair and started eating.
7. The first defendant had his cellphone and money in his pocket that evening. However when he woke up both were missing. The first defendant immediately accused the second defendant of stealing his phone and money and was about to beat him. The second defendant denied stealing his belongings retraced his steps and remembered seeing the deceased walking towards the main road as he was walking to the back to get cigarettes. The two brothers immediately suspected the deceased.
8. The defendants went straight to the deceaseds house and called out to him. No one came out. The defendants returned to Lilys Cakes but they did not see anyone in front of Lilys Cakes. The second defendant wandered to the back of the security house whilst the first defendant remained in the front and found the deceased inside the security house. The deceased saw the defendants walking over so he asked the security guard if he can attend to them outside as the defendants are coming for him. The security looked at the time and noted that it was 12:05am on the 25th of December 2019.
9. The security guard went outside and saw the approaching defendants. The security guard asked the defendants “po le a?” The first defendant said to the security guard “alu ese tei e lavea atu ai ma oe”. The first defendant and the deceased engaged in a scuffle during which the first defendant punched the deceased in the face causing the deceased to fall onto the ground. The second defendant joined the fracas and threw an empty beer bottle towards the deceased but missed, the beer bottle hit a pole.
10. Whilst on the ground the defendants kicked and punched the victim on his face. The deceased was also fighting back. The security guard intervened to try and stop the defendants but was unsuccessful as there were two of them.
11. Whilst the deceased was on the ground the first named defendant rummaged through the deceaseds clothing and found his phone and money. They then left with their belongings, leaving the deceased outside the security house. The security guard quickly ran over to the deceaseds house and informed the deceaseds grandmother that the deceased needed to be taken to the hospital.
12. The deceased was taken to the hospital via the FESA ambulance where the doctors and nurses treated his injuries noted as:
    • Bruising and swelling of both eyes with unequal pupillary responses to light elicited (left eye 5mm, right eye 3mm with decrease reflex);
    • A scalp wound over the right parietal area measuring 4cm which was sutured;
    • A suspected mandibular fracture.
    • An assessment of severe head injury was made by he attending doctor with suspicion raised for internal bleeding in the brain.
13. A CT scan done on the same day at 2:30am found substantial subdural haemorrhaging and various fractures.
14. The deceased received emergency surgery but died at 4:40pm on the same day. The cause of death was due to severe head injuries as a consequence of blunt force trauma to the head.
15. The matter was reported to the Police whereby the defendants were apprehended and cautioned accordingly.
16. On 11 March 2024 on the day of trial the defendants through their counsel vacated their not guilty pleas and substituted it with guilty pleas to the charge of manslaughter.
17. TJ has previous convictions whilst the second defendant is a first offender.
18. Obviously the assault led to extensive injuries to the deceaseds face and head and in spite of emergency surgery he succumbed to these injuries the next day. Not a Christmas present that any family would care to receive.
19. The Victim Impact Report filed with the court recites the familys loss through the eyes of the deceaseds 80 year old grandmother:
    • “O le mataupu lenei ua fai si leva ma se fa’afetai ai i le Atua ona e le’i oso so ma’i i le taimi sa ta’u atu ai le tala ua maliu si a’u tama. O si a’u tama lea sa tausi mai lava a’o laititi ma o lo’u lima taumatau foi lea ou te tua iai i totonu o le matou aiga. O si a’u tama foi lea ua maliu nei so’o se feau i le fale ma le matou lotu o se tama e ese ma le galue malosi. Ae pau lava le vaivaiga o le ava malosi lea sa taumafai lava e fautua ai a’o lea ua i’u lava ina maliu ai.
    • Sa misia lava si a’u tama i totonu o le matou aiga, aua e tusa lava i uiga fa’alogotā le tuua ai le alofa fa’amatua ma le moni o le alofa o le matua iai. Ae ui i lea ua leai se aogā e le mafai ona toe fa’aola ma Brian. E lei faigofie ia te a’u ona talia le tala sa o’o atu ua maliu Brian, ae fa’afetai ai i le alofa o le Atua ona o le mafanafana sa aumai ia te a’u.”
20. The offence of manslaughter carries a maximum penalty by law of life in prison. The courts sentence must not only hold the defendants accountable to the victims family but also to the community they are a part of. It must also emphatically denounce the defendants conduct as unacceptable and deter them and all other young men from indulging in this kind of behaviour.
21. But there are two further factors that must be taken into account. Firstly the need in appropriate cases to protect the community and the public at large from offenders who habitually reoffend. This is particularly relevant to the older first defendant Tupe who has a list of previous convictions and who has served terms of imprisonment.
22. And secondly to assist in appropriate cases in a defendants rehabilitation and reintegration. In my assessment this applies to Akuino who was 16 years of age at the time of this offending.
23. Because of these factors I propose to deal with the two defendants separately, also taking into consideration that the first defendant was the initiator of the assault. And the second defendant joined him undoubtedly out of a misplaced sense of loyalty and obligation to his older more life experienced sibling.
24. I also take into account that according to the security guard who witnessed the assault it was the younger defendant Akuino who saved him from being assaulted by the older brother after the two defendants had beaten up the deceased. The security guards statement to the Police says:
    • “Na uma ona fai le fa’ao’ogalima lea a le au uso ia la o ese mai ae toe oso atu ia TJ ia te a’u ma fai lana tala o a’u lea na fa’alafiina ia Brian. Peita’i o lona uso laititi o Akuino na oso atu i le taimi lea ma taofi TJ i le tau oso mai ia te a’u, ma savali ese mai ai loa.”
25. I deal firstly with the defendant Tupe. As indicated manslaughter carries a maximum term of life in prison. In cases of multiple attackers the Court of Appeal in Nepa v Attorney General [2010] WSCA 1 recommended a start point of 10 to 12 years in prison but with freedom for a sentencing judge to adopt a lower one if justified. In this case the two of you attacked the deceased but you were first to engage with and punch the deceased causing him to fall to the ground. Your brother then joined you and the two of you employed punches and kicks to the deceased while he lay on the ground. These caused severe injuries to the face and head area of the deceased which eventuated in his demise.
26. In that regard I make the Coronial Finding that the deceased Brian Mikaele Toa 35 year old male of Taufusi and Vaimea died at Moto’otua National Hospital on 25 December 2019. The cause of death was severe head injuries inflicted upon him in an assault that occurred at Vaimea in the early morning hours of 25 December 2019. And further that the perpetrators of that assault have been dealt with according to law and the court confirms that alcohol played a significant part in this tragedy.
27. I do not accept as advanced by defence counsel that the defendants were provoked into attacking the deceased because he stole Tupes cellphone. Because they only found the cellphone after they had assaulted the deceased. A suspicion that a person has stolen your phone is no excuse or reasonable ground amounting to provocation for an attack of this nature. People cannot be allowed to go around beating up others suspected of stealing. You report that to the Police and let them do their job. This was therefore an unprovoked attack by two drunks on another and was initiated by you.
28. I follow the approach in other similar cases of Police v Tupuola [2017] WSSC 60 and Police v Vitale [2017] WSSC 151, I will adopt an 8 year start point for sentence which your counsel has responsibly accepted as appropriate. However that must be upgraded to 10 years to reflect your previous conviction record and the need to protect the general public from people like you.
29. The defendant is entitled to deductions from that start point the first of which will be the normal six (6) months to reflect the ifoga and reconciliation that was carried out by your family. That leaves 9½ years in prison.
30. Defendant is also entitled to a one-quarter (¼) remaining balance discount for his guilty plea once the charges were finalised because this has saved the courts valuable time and resources. I will round that up to 2½ years, leaves a balance of 7 years in prison.
31. On the charge of manslaughter Tupe you will convicted and sentenced to 7 years in prison commencing today.
32. Akuino I have read carefully all the materials concerning you from the Probation Office and also from your counsel. Noting in particular your role in the offending and your age at the time. As stated what you did was stupid and it led to you killing another human being. That human being was someones brother, someones son, someones father. However sorry you may be you cannot change what you and your brother did. The consequences for your brother you have now seen. He has a history of criminal behaviour. You want to be like him you will end up like him.
33. But because of consideration of your age and the other factors I have referred to, I am going to give you a chance to be better than him. I assess your prospects of rehabilitation to be good, you are a smart guy you went to school in New Zealand, you have a partner and a 5 month old baby.
34. Ia e tatau ona e mafaufau iai o lea ua amata le tou aiga. O lea ua fai lou aiga o lea ua iai lau fanau. Ia atonu foi e iai na nisi fanau i le taimi o lumanai. O lea foi ua iai lau galuega e sa’o? Def: O lea lava). Ia e le’o oe o se tagata fa’avalevalea, fa’aaoga lelei le avanoa lea la’a tu’u atu e le fa'amasinoga mo lou olaga. Laga o le olaga o le olaga o lau susuga alii Akuino e le’o se olaga matou. Maua ma le Resitara lea ua ma matutua a’o oe o lena e te talavou. E le’i taitai lou olaga. Se aua ke soo ia Tupe laga e le’o se olaga lelei lea ua tula’i mai ai le susuga ia Tupe. Fa’aaoga le mafaufau o lena e te poto, o le meaalofa lena a le Atua ia oe. A e le fa’aaogaina ia o lou lumana’i lea. Ua e malamalama? (Def: O lea lava).
35. For the record I put rehabilitation above all other considerations and together with the defendants guilty plea and the fact that there has been apology and reconciliation, I will impose a non-imprisonment penalty for this defendant. Your one chance is going to be given to you today Akuino do not abuse it.
36. You are going to begin a term of supervision today. I am requiring the Probation Office submit a Supplementary Report recommending how long the term, also as to conditions of your supervision and what programs they recommend you attend and any other matters they wish to draw to the courts attention. I will adjourn the matter to the 24th of May at 12:30pm for a Supplementary Pre-Sentence Report.
37. Amata atu i le asō o lea o le a tatala oe i tua i lalo o le va’ava’aiga a le ofisa. E te saini i le Ofisa Faanofo Va'ava'aia i Aso Faraile o vaiaso uma ae lei ta le 12:00pm. Ma e amata atu i le asō ua tapu le ava malosi ia oe, so’o se ituaiga ava malosi. E le tatau foi ona maua oe i nofoaga e latalata i ni fale pia po’o ni fale fa’apena a’o fa’atalitali le fa’aiuga o le mataupu lenei. A iai nisi fa’atonuga a le Ofisa Faanofo Va'ava'aia e avatu i lau susuga i le va o nei ma le aso 24 usita’i lelei iai. A’o le aso 24 o Me e toe valaau ai lau mataupu ona fuafua lea o se fa’atatau iai e uiga i lau fa’anofo va’ava’aia lea ua poloaia e le fa'amasinoga. A iai se fesili o lena e avanoa le alii ofisa o le Ofisa Faanofo Va'ava'aia ma aua e te alu i se mea ae lei faia se lua tala.
    

SENIOR JUSTICE NELSON