SUPREME COURT OF SAMOA
Police v Pepe [2013] WSSC 47

Case name: Police v Pepe

Citation: [2013] WSSC 47

Decision date: 17 June 2013

Parties: 
POLIC v TASI PEPE, male of Matautu Lefaga and Olomanu.

Hearing date(s): 

File number(s): 

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Justice Nelson

On appeal from:

Order:

Representation: 
R Titi and O Tagaloa for prosecution
A Roma for defendant 

Catchwords: 

Words and phrases:

Legislation cited:

Cases cited:
R v Goldstone Auckland High Court 28 May 2010
R v Bevan [2012] NZHC 2969
Police v Tofaeono [2006] WSSC 23
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

THE POLICE
Prosecution

AND

TASI PEPE, male of Matautu Lefaga and Olomanu.
Defendant

Counsel:   R Titi and O Tagaloa for prosecution
A Roma for defendant 

Sentence: 17 June 2013

SENTENCE

The defendant in this case is a 24 year old male of Lefaga.  He is in a defacto relationship with one child and he lives and works at the Samoa Trust Estate plantation at Olomanu in Mulifanua.  It was there that this tragic incident occurred.  The deceased is his 23 year old sister.  On the weekend in question she was visiting the defendant and his family at Mulifanua.  She normally lives with her parents at Lefaga.  
There is no evidence in the material before me that there was any ill feeling or problem between the defendant and his sister.  All indications are the relationship was normal and loving as evidenced by her visiting him that weekend.  The defendant has pleaded guilty to the manslaughter of his sister.  
For the purposes of a Coroners finding I find that the deceased Olive Pepe a 23 year old female of Matautu Lefaga died on the 11th of October 20012 at Mulifanua from a gunshot wound to her chest and upper body inflicted upon her accidently by her brother the defendant.  The Coroners certificate should certify that alcohol was a factor in this incident and that the defendant has been dealt with according to law.  
The facts of this matter show the defendant had been drinking at Mulifanua Wharf with some friends earlier on in the evening of 11 October 2012.  He was drunk and having had enough, headed home.  Waiting for him was his family his deceased sister and another sister.  The deceased was at the time in the outdoor kitchen of the house adjacent to the main house cooking the evening meal.  She appeared to be sitting on the ground beside the open air oven.  As such she was seated below the level of the main house.  
The drunken defendant arrived home and noticed that his shotgun was lying on the floor of the fale.  The shotgun is a 12 gauge old model 18M Baikal single shot break action type.  The weapon was unlicensed and was kept by the defendant for the purpose of shooting trespassing pigs and wildlife on his plantation. The weapon is such that once loaded the gun automatically cocks into a firing position.  With the result that any small degree of pressure on the trigger will cause its discharge unless the safety is activated.  The gun is not in good condition.  But it is quite functional and deadly.  It was inspected by a qualified ballistics officer from New Zealand and who certified it to be in full working order.  
The police summary of facts is that upon defendants arrival at home the defendant loaded the gun and went in search of wandering pigs which he heard making noises from his plantation.  It says that he exited the fale on the umu side with the loaded weapon and that not long after that the gun discharged.  The defendants own version given to the court is a little different.  He said that when he arrived home he saw the gun lying on the floor of the fale on the side nearest to the umu.  The fale does not have any partitions or walls, it is open.  His version is he forgot the weapon was loaded and picked it up by its trigger causing it to discharge.  He was picking the weapon up in order to put it higher in a safe place and he was surprised when it went off.  
Whichever version is correct, it is clear that the gun was loaded and cocked.  And that its safety was off.  As such the weapon needed to be handled with great care.  Which the defendant failed to do causing it to discharge in the direction of his sister who was cooking at the outdoor umu.   The defendant was therefore reckless and negligent in that regard in his handling of the weapon causing the weapon to fire and the bullet to strike his sister.  
The evidence before the court shows that the bullet entered her in a downward trajectory above and through her left arm and into the left side of her body.  It passed into her chest and abdomen striking several vital organs.  Death would not have been instantaneous but would have followed shortly after from shock and blood loss from her internal injuries.  
When the defendant realized what he had done he immediately picked his sister up and carried her to the main road to find a vehicle to take her to the hospital.  She was pronounced dead on arrival at Leulumoega District Hospital later that evening.  As a result of these sad events the defendant has pleaded guilty to the charge of manslaughter.  The question for the court this afternoon is an appropriate sentence for this young man.  
It is often said that the circumstances of the offence of manslaughter are so variable that the sentence of each case is dependent on its particular facts.  That is very much the case here.  It is apparent this tragedy was brought about not by any premeditated or deliberate planned actions of the defendant.  But by his sheer carelessness and his intoxicated condition.  A good warning to all of us.  
The court is satisfied he did not intend to in any way to kill or harm his sister.  And that the shooting was accidental.  To that extent authorities like R v Goldstone Auckland High Court 28 May 2010 and R v Bevan [2012] NZHC 2969 and other cases cited in the prosecution sentencing memorandum have no application.   If anything this case is similar to the Police v Tofaeono [2006] WSSC 23 cited by counsel for the defendant.  Also a homicide by accident case where the court placed the defendant on probation.  
I take into account Tasi that no punishment this court can impose on you is greater than your having to live with the knowledge that you took your sisters life.  That is a burden you will bear alone and permanently.  It is also clear to me that you have accepted responsibility for what occurred as evidenced by your plea to the charge.  I have no doubt if you had this day to do over again you would wish for a far different outcome.  
It is clear from what is before the court that you have apologised to your parents for this tragic accident.  From what your mother has told us this afternoon matters have been settled within your family harmoniously.  As your counsel has pointed out you are a first offender and your guilty plea has saved the courts limited resources and time and perhaps spared your mother and other members of your family having to relive this tragic incident.  I also note that you spent some 3 months in custody when this matter was first brought before the court while the police finalised their charges.  
Considering the facts of this matter I assess your degree of criminal culpability as quite low.  And there are many mitigating factors in your favour.  The prosecution have sought a prison term be imposed on you Tasi.  However I am of the view the interests of justice are not served by such a penalty for your case.   But there must be some penalty to mark the seriousness of the offending and the loss of a human life.  I note the probation office have assessed you as a suitable candidate for community service.  
Accordingly in respect of this matter you will be convicted of the crime of manslaughter and placed on supervision under the probation office for a period of 2 years.  There are special conditions for that supervision and these are as follows.  Firstly you will undertake 150 hours of community service under the office community service program; secondly for the period of your 2 years supervision you are to refrain from consumption of alcohol of any kind that includes homebrew; thirdly you are also not to be found inside any bar or place serving alcohol and that includes a shop premises.  My advice to you Tasi is if you cannot handle alcohol leave it alone.  Drink CCK coffee that does not send you to prison.  
O isi tulaga o lou faanofo vaavaaia le alii ofisa lea e alala mai.  A mae’a fai se lua tala e faamalamalama atu e le alii ofisa ia tulaga o lau faanofo vaavaaia.  Ua e malamalama i le faaiuga o lau mataupu?  (defendant indicated he understood).  

_________________
JUSTICE NELSON