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Police v Niupisia [2010] WSSC 15 (22 April 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU’U

BETWEEN:

POLICE
Prosecution

AND:

PULEIATA NIUPISIA
male of Tafua-tai, Savaii.
Accused

Counsel: L Su’a-Mailo for prosecution
P T Masipa’u for accused

Sentence: 22 April 2010

SENTENCE

The charge

1. The accused was charged with murder to which the he pleaded not guilty. After a four day trial before a panel of assessors, he was found guilty of manslaughter for which is now appearing for sentence.

The offending

2. As it appears from the evidence that was before the assessors, the accused was 15 years of age at the time of the offending and the deceased was a young girl aged 10 years.

3. As the body of the deceased could not be found and the only living person who was an eye-witnessed to the commission of this offence is the accused himself, the only direct evidence of what happened in this case is from the statement made by the accused to the police. Even though the accused in his oral testimony given at the trial denied that he made such a statement to the police and gave a totally different account from what is in the statement, the assessors by their verdict must have accepted the said statement and what is in it having regard to the rest of the evidence that was adduced by the prosecution.

4. According to the statement the accused made to the police and recorded in writing by the police, on New Year’s Day 2009 in the late afternoon, he met the deceased on the road at their village of Tafua-tai in Savaii. He then asked the deceased to go with him to an isolated area near the sea which is about 700 to 800 metres away. At this isolated area is a cliff. The accused says that when they got there, he tried to have sexual intercourse with the deceased but he did not succeed because the deceased resisted. The deceased then stood up still screaming and calling out she wanted to live. He then pulled the deceased to the cliff and pushed her over the edge into the sea below. He did that because he was angry with the deceased and was afraid that she might tell him to her mother. From the evidence given by some of the prosecution witnesses, the distance between the top of the cliff and the sea below is about from the floor of this Courtroom to just above the ceiling.

5. When the deceased failed to turn up at home on the evening of New Years Day 2009, her family went looking for her. The next day, the village went looking for the deceased but she was nowhere to be found. Up to now her body has never been found.

The accused

6. The accused is a male of the village of Tafua-tai, Savaii. He is now 16 years of age but he was 15 years at the time of the offence. However, at the time he gave evidence at his trial he appeared to be a more mature person than his age. His education started and ended at primary school level. He then stayed home and helped his parents with family chores including his family’s plantation and panipopo business. As it appears from the pre-sentence report, the accused was a person of good behaviour until this offence.

7. The family of the accused has already presented a ifoga to the family of the deceased and it was accepted. The village council of Tafua-tai has also imposed a fine on the family of the accused which was paid by way of three large fine mats. In addition, the village council banished the accused from the village.

8. As it also appears from the pre-sentence report, the accused is a first offender. It further appears from the pre-sentence report that the accused still maintained his innocence to the probation service even though he also expressed remorse and willingness to accept any sentence imposed on him.

The deceased

9. The deceased, as already mentioned, was 10 years of age when she died. She was the only female child of her parents and family and was attending school.

The victim impact report

10. The victim impact report shows that the family, especially the mother of the deceased, are greatly saddened by the loss of the deceased. They still feel the loss of the deceased who was the only female child of the family.

Aggravating factors

11. There are several serious aggravating factors in this case. In the first place, the acts by the accused which led to the commission of the offence for which he is now appearing for sentence were calculated and premeditated. It is evident from the evidence that the motive behind the accused asking the deceased to go with him to an isolated area about 700 to 800 metres from the road was to have sex with her at a place where there could have been no interruption from anyone. Secondly, the acts by the accused in pulling the deceased to the cliff and pushing her over the edge after the deceased had resisted his attempt to have sex with her and while the deceased was screaming I want to live were utterly ruthless and cruel. Pushing the deceased over the edge of the cliff to the sea below was also a most dangerous act. It is no excuse whatsoever that the accused was angry and afraid that the deceased would tell him to her mother. The third aggravating factor was the vulnerability of the victim. She was really in a helpless situation. There was no one around to help her. The accused is a male and five years older. He must have been physically much stronger than the deceased. He overpowered the deceased and pulled her to the cliff and pushed her over the edge. Finally, the emotional and psychological impact of this offence on the family and the mother of the deceased who are the living victims of this offence is another aggravating factor.

Mitigating factors

12. The young age of the accused is a powerful mitigating factor in his favour. The accused was 15 years of age at the time of this offence. He is also a first offender and was a person of good character prior to this offence. The accused’s family has also presented a ifoga to the family of the deceased and it was accepted. The accused has also been banished from Tafua-tai by the village council.

The decision

13. Given the unique circumstances of this case, I am of the clear view that the need for deterrence, retribution and the protection of the community must take precedence over the need for rehabilitation in spite of the young age of the accused. A custodial sentence is clearly called for in this case. This is one of the worst cases of manslaughter that has come before the Court for sentence. The question is how long should that custodial sentence be.

14. The modern approach to sentencing, as laid down by this Court in a number of recent cases, is to set a starting point by taking into account the aggravating and mitigating features of the offending. Once a starting point is set on that basis, then it may be adjusted up by taking into account any aggravating features related to the offender. After that, the starting point may be adjusted down by taking into account any mitigating features related to the offender. See, for example, Police v Faaso’o [2009] WSSC 11 and the other recent cases where this Court has further explained and applied the modern approach. It is no longer enough to simply repeat the principles of deterrence, retribution, protection of the community and rehabilitation set out by the Court in the earlier cases. Those principles, in any event, are now well-established and well-known.

15. Applying the modern approach to this case by taking into account the aggravating and mitigating features of the offending, I have decided to set a starting point of 11 years for sentence. Having regard to any aggravating features related to the accused, there are none. However, there are mitigating features related to the accused. These are the young age of the accused, the fact that the accused is a first offender and was a person of good character prior to this offence, the ifoga performed by the accused’s family and accepted by the deceased’s family, and the banishment imposed on the accused by the village council. Taking into account those mitigating features related to the accused, especially his young age, the starting point for sentence is adjusted down by 3 years. That leaves 8 years.

16. The accused is sentenced to 8 years imprisonment. That sentence, in my opinion, would also meet the need for deterrence, retribution, and the protection of the community in this type of case.

CHIEF JUSTICE

Solicitor

Attorney General’s Office, Apia for prosecution
Tamati & Masipa’u Law Firm for accused