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Police v Paulo [2020] WSSC 28 (14 February 2020)

IN THE SUPREME COURT OF SAMOA
Police v Paulo [2020] WSSC 28

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

PESA PAULO, male of Leone

Defendant

Counsel: Q Sauaga for Prosecution
T Patea for the Defendant

Sentence: 14 February 2020

SENTENCING OF TUATAGALOA J

1. The accused appears for sentencing on the charge of manslaughter^[1], being armed with a dangerous weapon^[2] and throwing the stone^[3] which caused the death of Mefiposeta Laufale, a 34 years old male of Matautu-uta.

The offending

2. The summary of facts prepared by the prosecution was read out and confirmed by the accused which summary basically says:
   • The deceased was having drinks with his brothers and their friends on the steps of the Vaisigano Bridge. The steps are on the side of the bridge which leads to other homes near the bridge.
   • The accused and his cousin who were said to be intoxicated came by the deceased and his group at around 2am and asked them for some alcohol. The deceased’s brother told them to leave as they did not have enough alcohol to share. The cousin was not happy and the cousin and the brother of the deceased ended up fighting.
   • Accordingly, the deceased intervened and tried to break up the fight by taking his brother away. In doing so, while he was facing his back towards the accused, the accused threw a rock at the deceased.
   • The deceased fell on the ground and the accused and his cousin fled the scene.
   • The offending took place at around 2am on 11 August 2019. The deceased died later on that day at 5.38pm.^[4]

The accused

3. The accused is 18 years’ old and lives at Leone next to the Vaisigano bridge. According to the pre-sentence report dated 20^th January 2020 he is the eldest of four children. The pre-sentence report says that the accused no longer attends school having dropped out of Leiifiifi College at Year 12.
4. The accused is 18 years of age and has a history of offending as a young offender in the Youth Court dating back to 2017. A supplementary pre-sentence report dated 21 November 2018 for the Youth Court was provided to the Court. The supplementary report goes further into details on the matters pertaining to the accused in the Youth Court and his non-compliance in that he never served the community service hours imposed upon him, and that there are also two outstanding warrants of arrest against him issued for other re-offending, including one of robbery in the Supreme Court since April 2019.
5. His offending has now culminated to costing someone’s life. The accused is said to be truly remorseful.

The injuries

6. The deceased sustained an injury to the back of his head where the rock hit him. The pathologist who carried out the post mortem ruled that deceased died from blunt head trauma caused by the rock

Victim impact report[5]

7. According, to the VIR, the deceased’s wife is still devastated and hurt from what happened and does not forgive the accused despite the accused family having performed a ‘ifoga’ to her husband’s family. She said that she is left without a husband, and her six young children without a father. The wife says that the accused mother or family have never personally apologized to her or her children. Instead the accused mother and some of their family came to ask her to help out with the accused application to the court for bail. This being said shows that the accused family were not genuine in their apology but that they only apologized for the accused benefit in relation to his matter being in court.

Pre-sentence report

8. The pre-sentence report has what happened as told by the accused consistent with the prosecution’s summary of facts. There are written testimonials attached to the pre-sentence report from Rev. Nuuausala of the Protestant Church who says that the accused and his family are new members of his church; the accused family church pastor, Pastor Siavii spoke highly of the accused of the time the accused was said to have stayed with him and his family. There was no other information confirming how long ago the accused stayed with their church Pastor, why he stayed there and how he ended up there.
9. The accused grandmother is reported to have said that the accused is a trustworthy and a good person but the problem is he hung out with the wrong crowd.

Aggravating factors

10. I accept the following as the aggravating factors of the offending:
    • (a) The use of a rock;
    • (b) Violence involved by the use of the rock;
    • (c) The direction the rock was thrown at was to the deceased (as opposed to aiming directly at the deceased’s head).
    • (d) The deceased was vulnerable because he had his back towards the accused and was not aware of the accused’s actions.
11. The Prosecution referred to a number of cases with similar circumstances and recommended a starting point of nine years.

Mitigating factors

12. The only mitigating factors personal to the accused is his young age and early guilty plea. I cannot say that he is of previous good character given his history with the Youth Court and an outstanding matter in the Supreme Court since April 2019 of robbery.
13. The defendant’s family is noted to have carried out an apology or ifoga with an ie tele and $3000. This apology was done to the uncle of the victim’s wife. The wife says that the victim’s mother and/or family has never personally apologized to her instead they have only been to see her to seek assistance regarding the defendant’s application for bail.

Discussion

14. There is no doubt that the level of violence where death resulted 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 accused accountable for his actions.
15. An appropriate sentence is one that would deter the accused and other young people from similar behavior in the future. The length of sentence to be imposed might have some level of deterrence in that the sentence sends a message to the accused and also to young people in the community that there are consequences for such behaviors. I am mindful of the very young age of this accused. I must convey my disappointment with his family and their role in this young man’s life. The supplementary report by probation has them (the family) lying for the accused and not taking responsibility for his behavior and actions.
16. I agree with the pre-sentence report that the incident could have been avoided if the accused and his friend had not asked the deceased and his group for alcohol, or they could have just left when they were told to leave. The accused plea of remorse is questionable given that he continued to offend (or re-offend) whilst he has outstanding matters in the Youth Court and in the Supreme Court since April 2019 to which he had also failed to appear.
17. In the circumstances of this offending, a custodial sentence is most appropriate to achieve those purposes of deterrence, denunciation of such behavior, accountability for such behavior and most important of all the safety of the community.

Starting point

18. The Prosecution submitted for a 9 year starting point. Counsel for the accused submits for a 5 year starting point as appropriate.
19. The penalty for manslaughter is maximum life imprisonment. In comparison, the starting points in cases of attempted murder where machete or a weapon is used ranged from 9-15 years. Each offender is sentenced according to the circumstances of each case.
20. I find that the accused level of culpability in this offending is of medium level. The summary of facts does not say that the accused aimed the rock at the deceased’s head. The summary of facts say that he threw the rock at the deceased and unfortunately, the rock hit the deceased on the back of his head. The accused action was reckless.
21. In the circumstances of this offending, a starting point of 5 years is appropriate. The most significant mitigating factors are the accused young age and his early guilty plea. I give 12 months’ discount for his young age. I will also allow 3 months for the ifoga. I further reduce the sentence by 11 months (25%) for early guilty plea. This reduces the sentence considerably to 34 months or 2 years + 10 months.
22. For the offences of armed with a dangerous weapon and throwing stone each with the penalty of maximum 1 year’s imprisonment, I impose 3 months’ imprisonment each.
23. The accused is convicted and sentenced as follows:
    • (i) Manslaughter – The accused is to serve 2 years + 10 months’ imprisonment;
    • (ii) Armed with dangerous weapon – The accused is to serve 3 months’ imprisonment;
    • (iii) Throwing a stone – The accused is to serve 3 months’ imprisonment.
24. The terms of imprisonment are to be served concurrently. This means that the accused is to serve a total of 2 years + 10 months’ imprisonment term, less any time in custody.
    

JUSTICE TUATAGALOA

^[1] Crimes Act 2013, ss92 & 102
^[2] Police Offences Ordinance 1961, s25
^[3] Ibid, section 26
^[4] Report of Medical Daughter to Coroner – Coroner’s Order for Post Mortem dated 13 August 2019
^[5] Victim Impact Report, dated 14 January 2020