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Police v Pepese [2022] WSSC 54 (23 September 2022)

IN THE SUPREME COURT OF SAMOA
Police v Pepese [2022] WSSC 54 (23 September 2022)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

JERRY LAU PEPESE a.k.a JERRY MAIAVA male of Lotofaga Safata

Accused

Counsel: F. Ioane for Prosecution

P. Chang for Accused

Sentence Decision: 23 September 2022

SENTENCE

1. The Defendant appears for sentence on one charge of manslaughter carrying a maximum penalty of up to life imprisonment.

The Offending

2. According to the Amended Summary of Facts, the Defendant’s father had been informed by family members that the Defendant was using marijuana again. This upset his father.
3. On the 16th February 2019 at Lotofaga Safata, the Defendant was present at his parents’ home with his wife and children. After evening prayers, he was told off by his father for his marijuana use. The Defendant asked his father who had told him but the Defendant was told to pack his belongings and leave. As he walked out of his parents’ home, the Defendant said to his father “vaai i ai molimau ga pe a ou iloaiga.”
4. As the Defendant went to the nearby house to pack his belongings, he was overheard saying “faikakala ma kaukakala guku ma le o fai kala I le koeiga.” After about 9.00pm that evening, the Defendant walked to the victim’s house to look for the victim’s brother. The Defendant believed it was he who had told his father about his marijuana use. When the Defendant arrived there, the victim was reading his bible while his wife and children were having dinner. The Defendant asked for the victim’s brother and was told by the victim that he had left and not returned.
5. The Defendant left but shortly after, he walked past the victim’s house again uttering to himself “ufa” and “kefe”. This was overheard by the victim upsetting him.
6. About 25 minutes later, the victim walked to the Defendant’s house. There, the Defendant and the victim got into a verbal argument, as set out in the Amended Summary of Facts. The Defendant’s wife then arrived, stood in front of the victim and tried to resolve the argument. During the course of the argument however, the wife pushed the victim and asked him to leave. The victim turned away from the Defendant’s wife to leave and he said to the Defendant, “Faleiku, e leai lava se faigaka o le mea ga e ke magao i ai, ga oga ou kago aku a fai oe ii kokoe ga o ou ivi.”
7. At this time, the Defendant armed himself with a oso and approached the victim. When he got near the victim, he swung the oso towards him. The first caused the victim to stumble and fall towards a shelf where the Defendant kept a machete. The Defendant then grabbed onto the shelf to keep the victim from falling to the ground. The Defendant heard the victim picking up the machete attempting to swing it at him. The Defendant then struck the victim twice more. The victim fell to the ground motionless.
8. On the 17th February 2019, the victim passed away. The post mortem noted the cause of death as blunt force injury identifying:
   • (a) laceration of left frontal, left occipital and right occipital scalp (sutured);
   • (b) fracture left frontal temporal skull;
   • (c) Subdural haemorrhage;
   • (d) Subarachnoid haemorrhage
   • (e) cerebral swelling and softening;
   • (f) intracerebral and pontine haemorrhage.

The Accused

9. The Summary of Facts states the Defendant is a 25 year old male of Lotofaga Safata, married with 3 children and is currently unemployed. The Pre-Sentence Report (PSR) states he was raised in Fasito’o Tai but later relocated to Lotofaga Safata. The Defendant is the fourth of seven children and left school at year 9. He is described by his father as reliable, obedient and hardworking son. His pastor says that he is a church deacon and the pule nuu also speaks to his good character. The pule nuu confirms that the Defendant’s family presented $1,000.00, one cow and one fine mat. The victim’s father, presently in jail, also confirmed that the family has reconciled, he has forgiven the Defendant and the families came together to provide for the funeral preparation. The victim’s father asks for the court’s clemency.

The Victim

10. The victim is a 43-year-old male of Lotofaga Safata. He is married with 10 children. He is the Defendant’s first cousin. His daughter has given a VIR on behalf of the victim’s children. She speaks of missing her father, that he was a strong helper to her mother and that he schooled them from his plantation. She speaks of the family no longer being at peace and not fully happy, with the children having been broken up. The Defendant has not been to the victim’s wife or children to apologise.

Aggravating Factors

11. The aggravating features of the offending are:
    • (a) it involved actual violence with the use of an oso as a weapon;
    • (b) the victim was struck three times with the oso, the consequences of which resulted in the victim suffering serious head injuries later causing his death;
    • (c) the violence between the Defendant and the victim was initiated by the Defendant after the victim had turned and begun to leave as asked by the Defendant’s wife;
    • (d) The offending was in the context of a domestic relationship (section 17, Family Safety Act 2013); and
    • (e) The impact of the offending on the victim’s family as shown in the VIR by the victim’s daughter.
12. Prosecution submits that the offending was premeditated and was a breach of trust. I do not accept that the offending was premeditated. The Defendant had planned to confront the victim’s brother Kemi, not the victim. Prosecution also submits that there is a breach of trust because “by nature and our customs, the inference can be drawn from the familiar relationship between the deceased and the defendant being first cousins and trusted that the defendant will not harm him.” There is also no breach of trust. The familial relationship is taken into account as an aggravating factor in terms of the domestic relationship, not as a breach of trust. The victim for example was not a minor in the care of the Defendant.
13. There are no aggravating features personal to the Defendant. The Defendant is a first offender.

Mitigating Factors:

14. In terms of the offending, defence counsel submits that mitigating is provocation. Provocation is said to be the victim going to the Defendant’s house, the words spoken and actions by the victim including the taking of the machete.
15. I do not accept that the conduct of the victim constitutes provocation. The Defendant had gone to the victim’s house looking for his brother. The Defendant left but as he walked past their house again, was overheard uttering swear words. When the victim later came to the Defendant’s house unarmed about 25 minutes later to speak to the Defendant about his conduct, what was said by the victim to the Defendant is not provocation such as to mitigate the offending. He was the Defendant’s older cousin and this type of discussion, following the type of behavior exhibited by the Defendant, is common in Samoa between family members.
16. Similarly, what the Defendant heard of the victim “picking up the machete attempting to swing at him” is not provocation. The Defendant had struck the victim with an oso as he had turned and was leaving. The victim’s action was an immediate response to the violence initiated by the Defendant using a weapon. The Defendant’s further two blows with the oso was then a continuation of the initial assault by the Defendant.
17. Mitigating factors personal to the Defendant that I accept are:
    • (a) genuine remorse and regret for the offending as shown in the PSR dated 22 June 2022;
    • (b) prior good character;
    • (c) the apology extended and the reconciliation referred to by the victim’s father, presently serving a prison sentence. The discount however is moderated in that the reconciliation and apology did not extend to the victim’s wife or children;
    • (d) the village penalty imposed; and
    • (e) the guilty plea on reduction of the charge to manslaughter.

Discussion

18. The charge of manslaughter is a very serious charge carrying a maximum penalty of up to life imprisonment. The Defendant became angry and then attacked the victim with a oso. As a result, the victim died and his children now without a father and no longer together. For the Defendant, he has been remanded in custody and now faces imprisonment. The quick turn to anger and violence by men, too common in our community, results in many avoidable deaths.
19. Prosecution seeks an imprisonment term with a start point of 6 – 8 years imprisonment. Defence counsel seeks a 6 year imprisonment start point with an end sentence of 1 year imprisonment. In Nepa v Attorney General [2010] WSCA 1 (7 May 2010) where the Court of Appeal provides general guidelines for assistance in manslaughter sentencing, the Court at paragraph 37 stated in terms of predominantly single assailants that:
    • “The compendium shows a consistency of penalty imposed in both the commencing point (8 years) and its discount with a median point of approximately 5 years.”
20. Prosecution and defence counsel submissions refer me to various authorities which I have considered, including Police v Lalofatumalaga [2012] WSSC 122 (19 October 2012) with a start point of 4 years imprisonment and Police v Pelesasa [2014] WSSC 137 (16 May 2014) where a 6 year sentence start point was adopted. In Police v Lalofatumalaga, the Defendant struck the victim while the victim was bending down and wrestling with the Defendant’s father mitigating sentencing start point. Similarly, in Police v Pelesasa, the Court accepted provocation mitigating sentence start point. I have also considered Attorney General v Lesa [2019] WSCA 10 dealing with manslaughter sentencing addressing self-defence and defence of another, the facts of which are different to this case.
21. With regard to Nepa v Attorney General and the authorities to which I have referred, I view the appropriate start point for sentence at 7 years and 3 months based on the aggravating features of the offending. This was an act of violence initiated by the Defendant as the victim was leaving, carried out in a domestic relationship using a weapon striking the victim 3 times, the consequences of which resulted in severe head injury. From that start point, I deduct 6 months for the Defendant’s genuine remorse and regret; 6 months for prior good character; 6 months for the apology and reconciliation; 4 months for the village penalties; and from the balance, 17 months for the guilty plea leaving an end sentence of 4 years imprisonment.

Result

22. Accordingly, the Defendant is convicted and sentenced on the charge of manslaughter to 4 years imprisonment, less time in remanded in custody.

JUSTICE CLARKE