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Police v L.S [2017] WSSC 96 (16 June 2017)

IN THE SUPREME COURT OF SAMOA
Police v L.S [2017] WSSC 96

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

L.S, male of Samusu-tai, Aleipata
Defendant

Counsel:
L Su’a-Mailo for Prosecution
S. Leung Wai for the Defendant

Sentence: 16 June 2017

SENTENCING OF TUATAGALOA J

1. The accused appears for sentencing on the charge of manslaughter which carries a maximum penalty of life imprisonment. The accused pleaded guilty to the charge at the earliest opportunity.

The offending

2. The summary of facts prepared by Prosecution has been read out and confirmed by the accused. The summary of facts basically says:
   • On Monday, 08 May 2016 in the evening the accused and the deceased were at a neighbour’s house with some of their friends. The deceased gave his mobile phone to the accused to download a phone app, instead the accused used up the deceased credit. The deceased was not happy with the accused and they got into an argument. The deceased walked to the main road and the accused followed and apologized but the deceased punched and slapped the accused on the face and then continued walking. The accused got hold of a stone and threw it at the deceased. The stone hit the deceased on the head and he fell face down on the road unconscious. The deceased when taken to the hospital was deeply comatose and died the next morning.
   • The pre-sentence report has the accused relaying a different version of what happened but which account was not adopted by the accused or his counsel.

The Pre-sentence report (PSR)

3. The PSR says the accused resides at Vaipuna during the week and attends college.
4. The PSR records that the accused spends the weekends with his family at his village Samusu-tai. On the said evening he met the deceased and two other boys on the road and the deceased tried to pick a fight with him and he threw a stone at him. He (accused) immediately saw that the deceased was in a critical condition ran home and told his parents what had happened.
5. The accused is reported to be deeply remorseful. He is also of previous good character.

The accused

6. The accused was 14 years and 8 months’ old at the time of the offending. In 2015 he was a Year 11 student attending college and moved to live at Vaipuna to be closer to school. The accused is now 16 years’ old.
7. The parents of the accused in the PSR speak lovingly of their son. They spoke of their shock of what their son (accused) had done and how distraught they have been knowing his actions had cost the life of another young person. There are also written testimonials from the faifeau speaking highly of the accused being involved in the Sunday school, church youth (autalavou) and the church choir. The sui o le nuu (village representative) of Samusu-tai also speaks highly of the accused. Both testify to the accused being a good leader with a promising future.
8. The accused and the victim from the summary of facts were friends.

The injuries

9. The deceased died from a blunt force head injury. He was deeply comatose when presented to the hospital and died the next morning at around 7am.

Victim impact report

10. There is nothing on the deceased except for what the father says in the victim impact report that the deceased was still attending school and also had a job to help their family. The deceased’s father says of how much he misses his son and how very difficult it is to forget him (deceased). However, he pleads for leniency on the accused that he be spared from prison to allow him to continue with his education and to have a chance at making something out of his life.
11. The father confirms an ifoga by the accused family and they also presented fine mats and money. The ifoga was accepted and reconciliation between the families has taken place. The accused family also assisted in the funeral.

Aggravating factors

12. The main aggravating factors were: (i) the use of the stone; (ii) the deceased was vulnerable as he did not anticipate being thrown at with a stone and (iii) the loss of life as a result.

Mitigating factors

13. The following are mitigating factors in favour of the accused:
    • (i) The accused young age (14 years);
    • (ii) Previous good character: There is nothing adverse said about the accused character prior to the offending;
    • (iii) Reconciliation through an ifoga by his family;
    • (iv) Remorseful: The accused is said to be truly remorseful and I accept that. The summary of facts says that the accused and the deceased were friends. The accused will for the rest of his life live with the consequences of what he did;
    • (v) Early guilty plea.

The submissions by the prosecution

14. The prosecution identified the loss of life, use of a weapon and vulnerability of the deceased as aggravating factors of the offending. As for mitigating factors they identified young age, first offender and early guilty plea.
15. They refer in their submissions to the case of Police v Simanu^[1]to be applicable to the present case and for the court to adopt the approach in that case due to similar circumstances as to age and the use of a stone resulting in death. The young accused was convicted and sentenced to 18 months’ imprisonment.

The submissions by counsel for the accused

16. Counsel for the accused submitted that the principles of juvenile justice espoused in the United Nations Convention on the Rights of the Child be considered and as guidance when sentencing the young accused. The younger the offender, the greater is the significance of age. As such the accused may be more susceptible or vulnerable to negative influences if a term of imprisonment is imposed therefore rehabilitation should be given greater emphasis than one of deterrence by way of a custodial sentence. It is imperative the accused be given the opportunity to continue with his educational studies so he can fulfill his potential.
17. The accused is a studious and promising student and he is highly unlikely to be a repeat offender. Counsel submitted that a criminal conviction will have a disproportionate impact on the ability of the accused to gain meaningful employment and may also sabotage future ability for overseas studies.
18. The Court is to consider a non-custodial sentence in reference to section 5(1) of Community Justice Act 2008 given that reconciliation has been effected between the families, the accused is remorseful and made fully aware of the consequences and the impact of his offending on the deceased and his family, his young age, a first offender and his early guilty plea is a sign of acceptance of his behavior.

Discussion

19. The accused is a young offender under the Young Offenders Act 2007. Youth justice principles should apply to this young offender. Our Young Offenders Act was no doubt legislated on principles of youth justice as encapsulated in the UN Convention on the Rights of the Child (CRC); therefore, such principles should underlie considerations of any sentence of a young offender.
20. The Court of Appeal in Churchward v R^[2] discussed the following considerations that will influence the Court whether to allow a discount for youth:
    • (i) There are neurological differences between young people and adults (often referred to as an undeveloped brain in a young person), which makes a young person more impressionable and impulsive.
    • (ii) It is recognized that longer prison sentences tend to have a greater negative impact on young people.
    • (iii) Young people are generally more able to be rehabilitated and reintegrated into the community.
    • (iv) For young people, offending is often a short-lived thing with offenders growing out of a tendency to offend.
    • (v) Criminal convictions when a person is young may have a disproportionately greater effect on the person’s future prospect.
21. In passing sentence on a young offender, rehabilitation rather than retribution or deterrence is usually the primary objective. It is desirable to keep young offenders in the community as far as that is practicable. However, the court can impose a sentence of imprisonment if that is necessary to achieve the purposes of sentencing but first we look at the circumstances of the offending.
22. In Police v Simanu^[3] the accused provoked the incident which led to the offending. In the present case it was the deceased who by punching and slapping the accused provoked the accused who reacted by throwing a stone at him. I agree with counsel for the accused that it was a spontaneous reaction by the accused which unfortunately resulted in the loss of life that was never intended. The level of culpability of the accused is at the very low end of the scale. He is no doubt remorseful as he is friends with the deceased and never thought that what he did would result in the loss of life. The faifeau who provided a written testimonial sees the accused as a potential leader with a good future. The accused parents are shocked and devastated with what the accused had done. The accused nevertheless will carry for the rest of his life the fact that someone, his friend, died because of what he did.
23. Instead of imposing 18 months’ imprisonment as in Police v Simanu a term of two years’ supervision is in my view given the circumstances of this offending most appropriate.
24. The young offender is convicted and sentenced to two years’ supervision.
    

JUSTICE TUATAGALOA

^[1] [2007] WSSC 5 (12 February 2007)
^[2] [2011] NZCA 511
^[3] Supra, n 1