IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

C.A. 08/10
C.A. 14/10
C.A. 15/10

BETWEEN:

PITA ULUGIA, PIO FAAPIANO and NEW YEAR ALOFIMAU,
males of Letogo
Appellants

AND:

POLICE
Respondent

Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher

Counsel: R Schuster for the first appellant
R Papalii for the second appellant
F Vaai-Hoglund for the third appellant
P Chang and R Titi for the respondent

Hearing: 21 September, 2010
Judgment: 24 September, 2010

JUDGMENT OF THE COURT

1.	On 14 November 2008 at Vailele two young men, Henry Ah Sam and Kaine Sinapati were attacked by a group of other youths and brutally beaten. Kaine died as a consequence of that beating.

2.	Five of the group were charged with murder, three of whom are the appellants in these proceedings. The assessors acquitted all five of the crime of murder and returned verdicts of manslaughter against each. Four of the defendants were sentenced to terms of 4 years and 6 months imprisonment. The fifth, Tony Taalo, who was the second youngest, not armed during the attacks and not part of the original group, was placed on probation for a 2 year period.

3.	Pita seeks review of both conviction and sentence and the remaining appellants confine their appeals to sentence.

CIRCUMSTANCES OF THE MANSLAUGHTER

4.	On the evening of 14 November 2008, five youths from Letogo were walking through Vailele when they were stopped by matai enforcing the village curfew. They were allowed to proceed. They came to an area near the boundary of the two villages where they came across another group which included Tony Taalo. Pio made intimidating threats and gestures causing others to become involved. The Letogo group was armed with rocks and bottles.

5.	Kaine and Henry were not present or involved in the first altercation. Kaine was inside his mother's house with Henry waiting for him outside. Pesa approached Henry and asked Henry what he was doing there. Kaine came out and walked with Henry to return to his home. Pesa followed and punched Henry in the eye. Pio, Pita and New Year joined in and assaulted both Kaine and Henry. The attacks were prolonged and vicious. Both youths were punched, kicked and struck with rocks both whilst standing and lying helpless on the ground. Kaine was left bleeding and unconscious on the roadway before being dragged by two of the defendants to the side and left. The examining pathologist found that Kaine had died following intra cranial hemorrhage. He identified twelve separate injuries to the head and face. Henry was severely injured.

6.	The prosecution relied on the provisions of the Crimes Ordinance 1961, sections 21 1(a)(b)(c) and (d), 23(2) pleading that each defendant was an actor in the crime, an aider and abettor and a person engaged in a common unlawful purpose. Whilst one might have initiated the conduct, each was equally culpable. The assessors' verdicts reflected the finding that each was equally culpable. The sentence imposed by the learned sentencing Judge on four of the defendants reflected that finding. 

PITA ULUGIA

7.	Pita appeals against conviction and sentence. He claims error in that:

(a)	The learned trial Judge in summing up, did not put the appellant's case to the Assessors separate from the other defendants in view of the facts and elements of the charge following the Court of Appeal of Samoa case of Attorney General v Alaimoana Kolio [2008] WSCA 7;

(b)	the verdict of not guilty to murder but guilty to the charge of manslaughter was unreasonable or cannot be supported having regard to the evidence;

(c)	that on any ground there was a miscarriage of justice."

FAILURE TO PUT THE APPELLANT'S CASE

8.	The obligation of the trial judge as stated by Lord Hailsham in R v Lawrence [1982] AC 510, 519 was endorsed by Cooke P in R v Fotu [1995] 3 NZLR 129, 138:

"A direction to a jury should be custom built to make the jury understand their task in relation to a particular case…it should include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from the primary facts." (emphasis added).

The principle underlying this valuable formulation is of course that of ensuring a fair trial. The appellant contends that the defence arguments were not put by the trial Judge in summing up and there was therefore a miscarriage of justice.

9.	 The issue is whether it was made clear to the assessors that they must consider what was the essence of Pita's defence. 

10.	We have examined the submissions of counsel for Pita at the end of the case. Its theme was that Pita did not take part in the physical attack on Kaine. It did not attempt to grapple with the prosecution case that the five assailants were all party to both attacks even if they did not participate physically in either.

11.	The Judge directed the jury that the prosecution case was that each accused was guilty as a party even though only one or two of them inflicted the fatal injuries. His account of the facts contained only a single reference to Pita, as having been seen by a witness with others kicking Kaine while he was on the ground.

12.	He correctly directed the assessors as to the elements of manslaughter (as well as those of murder): that each accused was party to a common intention to assault Kaine and to assist each other in doing so; that one or more of the accused did assault him causing his death. He directed:

"It will be necessary to take each defendant in turn and ask yourself whether in relation to that defendant the prosecution evidence established the above elements on the required standard of proof."

13.	The case was presented by the Judge to the assessors in terms similar to those advanced by the prosecution. He correctly directed them on matters of onus, burden of proof and the need for care in reaching conclusions especially if inferences or differing conclusions were equally open. He reminded the assessors that none of the defendants had given evidence nor required to do so. They were told:

"In this case neither (sic) of the five defendants gave evidence or called witnesses. You are not to draw any unfavourable conclusions against either (sic) of them because they had not given evidence. You are not to presume that they are equally guilty because they have not given evidence."

The cases as presented contained few, if any, differences as among the defendants. 

14.	In dealing with other elements he distinguished among the individual defendants using terms which included:

"…one or more or all of the five defendants

…what is important is that each of the five defendants agreed…"

"…each defendant knew or ought to have known…"

15.	He used the singular and plural at each stage referring to 'the defendant or defendants', 'unidentified defendant or defendants' and the like.

16.	In dealing with the question of knowledge in relation to the element of intent to murder (on which the assessors found in favour of the accused) the trial Judge directed the assessors in the terms we have emphasized:

"Did the individual defendant know or ought to have known that in assaulting the deceased one of the member or members of the group responsible could have well a murderous state of mind.

•	Again it is for you assessors to assess on the evidence whether it justifies the inference that the particular defendant knew or ought to have known that one of them could well have a murderous intent when the defendant did assault the deceased.

•	If the intentional killing was known to be a probable consequence of the prosecution of the common purpose then the particular defendant is liable as a party to the crime of murder.

•	Probable denotes an event that could happen.

•	Again the test is subjective. It is what the individual defendant in fact contemplated that matters.

•	The state of the defendant's mind may be inferred from his conduct prior to the assault and any other evidence throwing light on what he foresaw at the material time.

•	Again the prosecution must prove the necessary contemplation beyond reasonable doubt although that may be done by inference.

•	In this trial the prosecution urges you to draw the inference that as the four defendants Pio, Pesa, Pita and New Year were armed with rocks and bottles. There was ample unambiguous warning that one or more of them would use them with intention to cause grievous bodily harm.

•	However if you conclude on the evidence that there is reasonable possibility that the particular accused did not contemplate the risk, he is in this type of case not guilty of murder but guilty of manslaughter." 

17.	We are satisfied that the assessors would have understood they must consider the case against each accused separately.

18.	The judge did not in terms put the defence submission that Pita took no personal part in the attack on Kaine. The summing up was defective in that respect. 

19.	It would have been better had the learned trial Judge adopted the conventional practice of succinctly summarizing the defence advanced on behalf of each accused. It was because he did not do so that we had to reflect on whether there is risk that the jury may have thought that, save on the element of murder, the accused must stand or fall together.

20.	Being satisfied on that point there remains the question whether the judge's failure to put to the jury the proposition that Pita did not physically attack Kaine has caused the trial to miscarry. The problem for the defence is that such contention did not meet the essential prosecution case – that the accused were parties to an attack on both Kaine and Henry. Counsel for Pita did not attempt to meet that case. The consequence is that had the judge put the defence advanced he would inevitably have added that it provided no answer to the prosecution case that by his presence in the group of attackers, which was undeniable, Pita was guilty as a party. 

21.	We have concluded that the suggested direction could have made no difference to the result and that the case falls within s164N(3) of the Criminal Procedure Act 1972:

"The Court of Appeal may, even though it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

22.	 We add that counsel for Pita did not seek further directions or request the Judge to more clearly articulate the differences in his client's case. Counsel ought to feel confident in raising matters or deficiencies before the Judges at the conclusion of the summing up. Suggestions are often helpful when something has been overlooked. It is good practice for a trial Judge to invite counsel to volunteer further assistance. That practice can often present an accidental omission or a point of law overlooked. 

UNREASONABLE VERDICT

23.	The appellant relied upon minor inconsistencies either internal to the witness or as between witnesses. It would be surprising if each witness gave an identical and exact account of everything which happened in the melee. It is unsurprising that a witness might concede in cross examination that he might have been mistaken on some point. An example of the witness Tuli will illustrate the point.

24.	Tuli said in evidence in chief that 'the biggest boy' who confronted him was holding stones and that 'the other boys with him also had stones and bottles.' In cross examination he conceded that he might have been mistaken in saying that all the boys were holding stones. Other witnesses averred that each of the assailants had, at some stage, stones in their hands. It does not follow that each assailant had stones at every stage of the assaults. At some stage punches were thrown at others, an assailant was kicking the supine body of Kaine or Henry. Each assailant might have struck both Kaine and Henry at varying times. An onlooker could not follow each specific blow or event occurring in a series of struggles between at least seven persons.

25.	The witnesses were consistent in their accounts that each of the five defendants engaged in brutal and persistent attacks on two young men and did not cease those attacks until the two young men were senseless. The witnesses Vaituulima, Tavita, Fou and Solofa each named New Year, Pio and Pita as active participants in the attacks. Henry was able to name two Pio and Pesa. The inconsistencies identified by the appellant do not weaken the strength of the prosecution case or persuade us that the verdicts returned by the assessors were not supported by the evidence (R v Piri [1987] 1 NZLR 66) unreasonable (R v Hopkins-Husson 1949 34 Cr App R 47) or so as to constitute a miscarriage of justice (R v Mareo (No.3) [1946] NZLR 660).

26.	The appellant relied on the evidence of the examining pathologist as to the place and extent of injuries suffered by Kaine as being inconsistent with the evidence of Fou as to the force of the kicks by Pita or Pesa. Dr. Rahman was able to recognize six of the twelve identified injuries as being caused by an object having a blunt surface. He was of the opinion that death was a consequence or a 'collective result' of a number of blows rather than an individual blow. He was unable to pinpoint any single blow as causing death. He said that he found no bruising to the back of the deceased but had earlier explained in answer to the question:

'…would you agree that if a person (sic) had been kicked in the chest there will be some sort of bruise there."

to which he replied:

"…definitely not we can't say that, if a person was kicked on the chest, definitely there will be bruise, we can't say that, because if the person was wearing some big clothing the bruise might not have been integrated on the chest."

27.	The point made by counsel for the appellant on this point is without merit.

28.	The appeal against the conviction is dismissed.

APPEALS AGAINST SENTENCE

29.	It is convenient to deal with these appeals together. Pita's appeal claims error in that: 

(a)	"the sentence imposed was manifestly excessive given the circumstances of the case;

(b)	 the sentence does not reflect the nature of the involvement of the Appellant in the circumstances of this matter and is a miscarriage of justice;

(c)	 the sentence is not in line with Samoa's international obligation under the Convention on the Rights of the Child ratified by Samoa on the 11th day of November 1994."

30.	Pio added the failure to pay sufficient regard to the recommendations of the Probation Service. His grounds allege that:

(a)	 "The sentence is manifestly excessive;

(b)	 The sentencing Judge did not place sufficient weight on all the mitigating factors especially the age of the Defendant;

(c)	 The sentencing Judge erred in placing reliance on the Court of Appeal decision of Attorney General v Siaosi Matalavea as guidance for a starting point;

(d)	 The sentencing Judge did not place any weight on the recommendations by the Probation Service;

(e)	 The sentencing Judge erred in law by placing too much weight on the principles of deterrence as opposed to rehabilitation of young offenders; and

(f)	Further grounds stated in the Appellant's written and oral submissions to be filed at a latter date." 

31.	The learned sentencing Judge identified minor distinctions between the defendants. Pio was 18, Pesamino and New Year 17, Tony 15 and Pita, the youngest at 14. But there was little to distinguish between the three appellants other than age. Each had contributed to the death of another young man. Each had engaged in prolonged and brutal violence against a helpless victim. Each had used rocks, fists and kicking to harm another, continuing the attack after the victim had been rendered supine and helpless. None had shown concern for the victim after the assaults nor attempted to provide or obtain assistance. The assaults had been unprovoked. The victim had not even been present at the site of the original confrontation. The sentencing Judge was entitled to consider the circumstances as "…one of the most serious cases of an unprovoked and violent killing to be dealt with by this court."

32.	New Year Alofimau has confined his grounds of appeal to the sole claim of error that:

"(d) the sentencing Judge did not sufficiently take into account all mitigating factors."

33.	Each defendant has been expelled from school and banished from the village following the violence. Each was a first offender. Each had received a favourable pre-sentence report. The Service was entitled to recommend supervision and conditions as an available option to imprisonment. The reports, couched in appropriate terms, referred to alternative options available to the Court. The learned Judge did not err in failing to give effect to those recommendations.

34.	He made allowance for ifoga although the Court accepts that he did not quantify a specific allowance for the sanctions of banishment imposed by the village. However, each defendant had, because of banishment and provisions of alternate care, the advantage of bail whilst awaiting trial. But the learned sentencing Judge had adopted a lower commencing point for the sentence and given significant allowances for mitigating factors. 

35.	The Court was required to pay regard to other matters including the death of a young man, the concerns of the community, collective retribution, and the impact on others of the violence.

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)).

37.	The Convention on the Rights of a Child, Article 40, by the State of Samoa relied upon by the appellants relevantly provides:

"1. States Parties recognize the right of every child alleged as, accused of, as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

(i) To be presumed innocent until proven guilty according to law;

(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;

(iv) Not to be compelled to give testimony or to confess guilt; to examine or have adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;

(v) If considered to have infringed the penal law, to have this decisions and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law."

38.	It does not prohibit detention for crimes committed. Article 37 provides:

"States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to prompt decision on any such action." 

39.	The sentence imposed, although harmful to the future interests of each appellant, does not deny due process or constitute torture, cruel or inhuman treatment or punishment. It does not subject each appellant to imprisonment 'without possibility of release' and given the gravity of the crime and the form and circumstances of its communion can be seen as 'a measure of last resort for the shortest appropriate period of time.'

40.	The Young Offenders Act 2007 recognizes that in some cases a sentence of imprisonment is unavoidable and provides for separation of juvenile from adult prisoners.

41.	The appropriate treatment of each appellant whilst in custody remains, subject to specific judicial review, the province of the authorities appointed in accordance with the Young Offenders Act.

42.	Sentences imposed on joint offenders with equal culpability and similar circumstances should take into account the principle of parity and consistency. Here we have considered the disparity between the ages of Pio (18) and Pita (14) in order to determine whether the latter ought to have received a lesser sentence.

43.	In Postiglione (1997) 189 CLR 249, the High Court of Australia considered the relationship between the totality principle and the disparity principle. It determined that a co-offender could have a justified grievance if his more culpable co-offender failed to receive a longer sentence. The Court applied the party principle to reduce the applicant's sentence.

44.	To justify intervention, disparity must be significant and it is not enough to show that a slightly longer sentence was imposed. In Lowe v The Queen (1984) 154 CLR 606, Dawson J used the term 'manifestly excessive'. In that case, the Court determined that, even if a sentence imposed on a co-offender is inadequate, it cannot be disregarded. Mason J expressed the clear view that a sentence could be reduced when the co-offender's sentence was inadequate and there was a manifest discrepancy and it could even be reduced to a point where it might itself be regarded as inadequate. 

45.	Pio was the biggest and oldest at eighteen. He was noticed most by witnesses and initiated the misconduct. It was open for the sentencing Judge to distinguish his circumstances and impose a sentence higher than his co-offenders. Pio received the benefit of parity with a sentence substantially less than could have been imposed.

46.	In the case of adults we would be reluctant to reduce a proper sentence because a co-offender has been fortunate enough to have been under-sentenced. Parity with other offenders, who may occupy the same position, is important. But in the case of a young person the Court may take into account that he will compare himself with his co-offender and feel a aggrieved, which may affect his prospects of rehabilitation. 

47.	 Whilst we ought to resist tinkering with an otherwise defensible sentence, here we will follow the approach taken in Lowe (supra). The appeal of Pita will be allowed and a sentence of 3 years imprisonment is substituted.

48.	The other two appeals against sentence are dismissed.

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher