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Police v Sanele [2012] WSSC 105 (15 June 2012)

SUPREME COURT OF SAMOA

Police v Sanele [2012] WSSC 105

Case name: Police v Sanele

Citation: [2012] WSSC 105

Decision date: 15 June 2012

Parties: Police and David aka Tavita Sanele and Felise Sanele

Hearing date(s): 15 – 18, 21 – 24 May 2012

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Slicer

On appeal from:

Order: (Sentence)
Representation:
P Chang and R Titi for the prosecution
M Peteru for the first named defendant
A Su’a for the second named defendant

Catchwords:

Words and phrases:
Legislation cited:
Young Offenders Act 2007

Cases cited:
Nepa v Attorney General
Whithers v R
Ulugia v Police
Attorney General v Godinet
Fa’apiano [2010] WSSC 35
Police v Lagalaga
Police v Fonoti
Police v Ikilasi
Police v Simanu

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

DAVID aka TAVITA SANELE and FELISE SANELE, males of Vaitele-uta

Defendants

Counsel: P Chang and R Titi for the prosecution

M Peteru for the first named defendant

A Su’a for the second named defendant

Hearing: 15 – 18, 21 – 24 May 2012

Sentencing: 15 June 2012

SENTENCE

1. The defendants have been convicted of the crime of manslaughter following a trial by assessors. A co-defendant, Paulo Posi, was convicted of the crime of murder and sentenced to the mandatory penalty of life imprisonment.
2. There had been an earlier incident involving the deceased and his companion Mareko with an exchange of words and a different altercation at Leasi Street concerning the loudness of music played at Mareko’s residence which did not involve the deceased. At no time did the deceased initiate or become directly involved in either event. He had simply responded verbally to a threat or challenge by another. There was some confusion as to the identity of the person who had accosted the two at Leasi Street. Mareko in his first police statement said he thought the man to be Ionatana but later said he had confused him with Paulo. Ionatana is the twin brother of Tavita and Mareko said he was confused because of the likeness of the man who made the challenge with another. At trial, he said the man who had initiated the exchange was Paulo. Counsel for Tavita says that such is unlikely since Paulo was later collected further down the street. The Court accepts that there remains confusion but does not feel it necessary to determine who initiated the challenge although it remains likely that it was Paulo.
3. Following the verbal exchange Mareko and the deceased went on their way towards Mareko’s residence. The deceased, who had resided on Savaii, had simply come to Vaitele to escort a young female member of his family back to her home on Savaii to resume her schooling. He had had no previous dealings with these assailants.
4. Mareko and Tui were walking along Papata Street near the Church Assembly Hall when they were accosted by these defendants. Felise asked Tui whether he had been the person who had responded to the earlier threat. He answered ‘yes’ and was immediately punched to the head by Felise, causing him to fall backwards into a sitting position. He was knocked into a supine position and repeatedly struck and kicked by each of the three assailants. At some point two of the assailants, Paulo and Felise assaulted Mareko and prevented him from coming to the aid of his helpless friend, who, at that time, was being kicked by Tavita.
5. Tui suffered significant injuries, mainly to the head. The pathology report stated:

“1. In the right frontal region of the scalp there is a bruise abrasion complex 15 x 8mm.

2. Internally there is scalp bruising associated with injury no. 1 measuring 20 x 10mm.
3. Subgaleal bruising is seen in the occiput near the top of the head and just to the right side this measuring 30 x 20mm. No skin changes are apparent in this region.
4. A subgaleal bruise 25 x 15mm is seen in the left occipitoparietal region but is again not associated with obvious skin changes.
5. There is no penetrating injury to the scalp.
6. An abrasion 6 x 4mm is seen over the posterior aspect of the base of the right thumb.
7. In the left posterior shoulder region is a blackish purple bruise which is oval in shape and measures 30 x 20mm. Just inferior and medial to injury 6 are irregularly shaped abrasions 15 x 8mm and 5mm.
8. There is a blotchy red purple area which is ill-defined measuring 45 x 15 mm in the right supraclavicular region.
9. In the left chest below and lateral to the left nipple is an abrasion running obliquely and measuring 45 x 5mm.
10. In the right chest beneath the right nipple there is an oblique bruise 90 x 25mm with central pallor.”
6. The verdict reached by the assessors is consistent with a finding that it was Paulo who had struck the fatal blows to the head, causing the haemorrhage to the brain resulting in death; whilst those defendants did not have the necessary specific or reckless intent to bring about the death.
7. The three defendants had intended to cause trouble and confront the two men. It was Felise who struck the first blow but at various stages each of the three had struck blows or kicks to Tui and two had prevented Mareko from assisting or protecting his friend. The defendants pursued the two young men and effectively ambushed them. The violence was prolonged and vicious. One wielded a stick and one was seen to carry a metal rod commonly used in building construction. The victim was attacked while in a helpless condition.
8. The Court applies the decision of the Court of Appeal in Nepa v Attorney General [2010] WSCA 1 and accepts its adoption of the words of Street CJ in Whithers v R [1925] NSWStRp 38; (1925) 25 SR (NSW) 382 at 397:

“There is no offence in which the permissible degree of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty but in doing so added that a sentence ought reflect the diverse circumstances in causing death which make manslaughter a crime which varies widely in culpability and sanction. But they show as a guise a commencing point of 8 years imprisonment.”

But concluded that:

“In ordinary cases involving a group and an unprovoked attack resulting in death the commencing point ought to be a sentence of 10 to 12 years for the crime of manslaughter.”

9. The same court repeated that conclusion in Ulugia v Police [2010] WSCA 15 and Attorney General v Godinet [2010] WSCA 11.

Victim Impact

10. Tui Neemia was aged 20 years at the time of his death. He was unmarried. He left school at Year 11 and stayed with his family, helping to take care of the family but working hard on their plantation. He was described as being a quiet person.
11. The death has caused great pain to the extended family, who initially felt the need for revenge. They have, with goodness, lost that need and were prepared to trust the court system.
12. The family of the defendants brought an ifoga to the family at Vaitele and the family matai accepted the apology.
13. In the circumstances of this case it is appropriate to adopt as a commencing point of 10 years for each defendant. This was not a mass conflict as had occurred in Fa’apiano [2010] WSSC 35.
14. Neither defendant is entitled to the benefit of a plea of guilty.
15. The mitigating matters relevant to each defendant are youth and the fact that each is a first offender.
16. Felise Sanele, single, was born in February 1993 and was 19 years old at the time of the crime. He left school before the completion of Year 10 in 2009. He was helping by working on the family plantation.
17. He is a first offender and his pastor testifies that ‘Felise was an active youth in (his) congregation, was reliable and very responsible if given any task.’
18. His family performed ifoga, which was accepted by Tui’s family and a letter from that family says there has been reconciliation between the families. The Court accepts that he has been remorseful for his actions.
19. Tavita Sanele also single, was born in September 1992 and aged 18 at the relevant time. He graduated from Leififi College at the completion of Year 13. He was admitted to the National University of Samoa and was enrolled in Year 1 of the Science Programme at the time of these events. He will turn 20 this year.
20. References show that he was a responsible and active member of his religious congregation. He has shown himself to be determined in his academic pursuit and the University has put his enrollment on hold pending the outcome of these proceedings. Like his brother Felise, there has been ifoga and reconciliation between the families. Like his brother, he is a first offender and has shown remorse.
21. Age is relevant but the Court is mindful of the decision of the Court of Appeal in Ulugia (supra) when it stated at paragraph 36:

The crime of manslaughter by its very nature involves a wide range of circumstances and defies attempts to determine an appropriate range (Police v Lagalaga [2008] WSSC 103). Whilst the youth of an offender is a cogent factor in any determination of penalty (Police v Fonoti [2008] WSSC 72; Police v Ikilasi (unreported, 26 April 2010)) the gravity of the offence can be so great as to outweigh principles of rehabilitation, remorse and individual response to inexperience and weakness. This was not a case of a fight with a singular episode of violence resulting in death (Police v Simanu [2007] WSSC 5, Ikilasi (supra)).

22. The appropriate allowance for age and prior record is that of 3 years. A further allowance of 1 year will be made for ifoga and forgiveness by the family of the deceased. Allowance will be given for the 5 weeks imprisonment already served and the Court will extend another 2 months reduction since each will undergo difficulties of adjustment of two entrances into prison. With those allowances the actual sentence to be imposed on Felise is 5 years and 10 months imprisonment.
23. There is but one matter which permits the Court to allow a slight distinction between Felise and Tavita. Felise originated the confrontation and struck the first blow which triggered the ensuing violence. There is also the factor of age and the prospects of Tavita whose academic career will be destroyed or at least put on hold. His sentence will be that of 4 years and 10 months imprisonment.
24. The Court understands that in some circumstances it is able to suggest, in an individual case, a youthful offender, not coming within the provisions of the Young Offenders Act 2007, be transferred to the juvenile justice center rather than the central prison. It suggests, respectfully, that such a course be considered in Tavita’s case. It may be that the relevant authorities consider it to be preferable that the brothers be kept together but such remains the provence of the administration.

ORDERS

(1) Tavita and Felise Sanele are convicted of the crime of Manslaughter.
(2) Tavita Sanele is sentenced to a term of imprisonment for a period of 4 years and 10 months, such sentence commence as and from 6 June 2012.
(3) Felise Sanele is sentenced to a term of imprisonment for a period of 5 years and 10 months, such sentence commence as and from 6 June 2012.

JUSTICE SLICER