SUPREME COURT OF SAMOA
Police v Konelio and Su’a [2014] WSSC 77

Case name: 	Police v Konelio and Su’a	
		
Citation: 	[2014] WSSC 77	
		
Decision date: 	5 December 2014	
		
Parties: 	Police and Eli Konelio male of Saleaumua and Jack Su’a male of Fagalii	
		
Hearing date(s): 		
		
File number(s): 	S1010/13	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Mulinuu	
		
Judge(s): 	Justice Vaai	
		
On appeal from:		
		
Order:	(Sentence)	
		
Representation: 	L Su’a-Mailo for prosecution
R Papalii for first defendant
M Peteru for second defendant	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:	P v Timoteo
Nepa v Attorney General	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
P  O  L  I  C  E
Prosecution
A  N  D:
ELI KONELIO male of Saleaumua
First Defendant
JACK SU’A male of Fagalii
Second Defendant

Counsel:	L Su’a-Mailo for prosecution
		R Papalii for first defendant
		M Peteru for second defendant
	 
Sentence:	5 December 2014

S  E  N  T  E  N  C  E
Introduction
1.	The two defendants aged 18 and 19 were at the time of their offending in their final year at the Congregational Church Senior College at Vaisigano.  The assault by the two defendants and others which led to the death of the 22 year old deceased took place during school hours by the river close to the school while the College was celebrating its recent success in the Senior Schools National Athletics championship.  Whilst other students were involving themselves with preparing and cooking barbeque and other activities the two defendants and other male students moved to a spot by the river next to the school and consumed a bottle of vodka which one of them bought from a nearby shop.

2.	They were joined by the deceased an unemployed youth from the nearby village who invited himself and asked for a drink which was given.  After the deceased was given a second drink the defendants and their group decided to head back to school but the deceased demanded that the bottle of vodka should stay with him.  When the group refused to leave the vodka the deceased became angry.  He asked the group if they wanted trouble but the group ignored him and walked away.
3.	The two defendants and two others were at the rear of the group as they walked back to school. They were again asked by the deceased who caught up with them if they wanted trouble.  Before anyone replied the deceased punched the defendant Eli on the mouth causing Eli to fall down.  Another student, Tavai, was also punched.  Defendant Jack and another student jumped in and fought with the deceased.
4.	The deceased managed to break free and ran away but as he did so he picked up stones and threw them at the group.  In response defendants and two others threw stones at the deceased.  One of the stones struck the deceased on the back of his head causing the deceased to fall down.  Prosecution says it was the defendant Eli who threw the stone which struck the head of deceased.
5.	The defendants and the rest of the group continued walking to school.  The news of the incident quickly spread at the school and police were informed.  The deceased was admitted to hospital about 3pm the same day.  He was described as semi conscious with dilated pupils and a depressed posterior skull.  He died the day after.  Cause of death is stated in the Autopsy Report as blunt force trauma to the head which resulted in contusion (bruising) and bleeding around the brain with subsequent swelling of the brain, and death.
6.	For the death of the deceased the two defendants and another have been charged as parties with the crime of manslaughter.  The two defendants pleaded guilty.
7.	A custodial sentence with a starting point to commence at 8 years is sought by the prosecution.  Tariffs for previous cases of manslaughter have been cited to the court in a well prepared sentencing memorandum by the prosecution.  It is the prosecution’s contention that the facts of this case resemble those in P v Timoteo 21/3/2011 in which a 19 year old defendant was given a custodial sentence for manslaughter following the death of a 50 year old deceased as a result of a rock thrown by the defendant which struck the head of the deceased resulting in his death from the head injuries suffered.  In sentencing the 19 year old defendant the court adopted 8 years as the starting point.
8.	In support of its submission for the court in this case to adopt 8 years as the commencement point the prosecution highlighted the nature of the offending particularly the fact that the deceased was in fact retreating when the defendants and others continued to throw rocks at him, as well as the failure by them to render assistance after the deceased was hit and the disproportionality of the response by the defendants to the provocation by the deceased. 
9.	Nepa v Attorney General (2010) WSCA, the often quoted decision of the Court of Appeal, was relied upon for the proposition that sentences imposed upon conviction for manslaughter reflect the diverse circumstances in causing the death which make manslaughter a crime which varies widely in culpability and sanction.  But they show as a guide a commencing point of 8 years imprisonment for cases involving single assailants.  But in cases involving group or multiple assailants the same court said:
“In ordinary cases involving a group and an unprovoked attack resulting in death, the commencing point ought to be a sentence of 10 - 12 years.”
Submissions by Counsel for Eli Konelio
10.	A non custodial sentence is contended as the appropriate sentence given the circumstances of the offending, the circumstances of the offender, as well as the impact of the offending on society and on the offender himself.  Guideline for sentencing upon conviction for manslaughter as laid down in Nepa v Attorney General is acknowledged, but counsel submitted that the offending in the present case does not fall under the general guide in Nepa.  This case, counsel contended is distinguished from Nepa in that the defendant was provoked by the deceased and the stone throwing stopped when the aggressive deceased was felled to the ground.
11.	Counsel also emphasised that despite the aggressive and bully behavior and conduct of the deceased at the river, the defendants and their group remained calm, kept the peace and walked away.  Violence erupted when the deceased caught up and assaulted the defendant Eli and another member of the group.
12.	Aged 18 at the time of the offending, Eli was a talented young man at sports and was in his final year at School.  He, like others was in a celebratory mood on the morning of the incident, and despite their irresponsible conduct in consuming alcohol during school hours for which they were expelled from school, Eli has had the fortune of receiving assistance from those close to him, including his village pastor and mayor, to help and guide in the healing process.  He is truly remorseful.
Submissions by Counsel for Jack Su’a
13.	Ms Peteru contended, and quite correctly so, that the offending in the case of Police v Timoteo was much more serious and therefore not comparable to the offending in the present case.  Police v Timoteo involved a defendant who was angry with the deceased before the commission of the assault, it involved the defendant arming himself with a weapon, he then went looking for the defendant, so that there was an element of planning and pre-meditation in Police v Timoteo.
14.	Defendant Jack was also in his final year, is genuinely remorseful, is amenable to furthering his education if given the opportunity and would benefit from a community based sentence.  It was emphasised by counsel that Jack is not a violent person by nature, in fact he walked away from the threat by the deceased at the river and only jumped in to assist his friends when the deceased delivered the second punch.  Although stones were thrown at the deceased it was in response to the stone throwing by the deceased and was with the purpose of discouraging the deceased.
Discussion 
15.	Although the sentences imposed for the crime of manslaughter have varied from lengthy terms of imprisonment to non custodial sentences, the court has never lost sight of the gravity of the crime of manslaughter, and that is because the loss of human life is a grave and serious concern to members of society.  The primary function of sentence is to protect the community.  At the same time a residual discretion to display mercy should be exercised where it is appropriate.
16.	In sentencing youths or young offenders there is generally emphasis given to rehabilitation and less to deterrence and retribution than in the case of adult offenders.  But that depends on the circumstances of the offending as well as the age of the youth, and there also comes a point at which the seriousness of the crime committed by the young offender, particularly if the crime is one involving violence which is so great that special attention normally given to rehabilitation in the case of young offenders must give may, and greater emphasis given to punishment and deterrence.  
17.	Here there were exceptional circumstances.  The deceased initiated the violence.  He came upon a group of students who were in a celebratory mood, he invited himself to the party demanded a drink as if he was entitled to one, and was given one.  He was given another one and he obviously expected more drinks because when the students decided to return to school the deceased demanded that the unfinished bottle of alcohol should stay with him.  
18.	The deceased got angry when the students left with the unfinished bottle.  His verbal threat was ignored by the students who kept on walking away.  He pursued the students.  When he caught up with the group he again threatened the group and at the same time threw a punch at the mouth of defendant Eli who was at the rear.  As defendant Eli fell to the ground, the deceased punched another student.  Defendant Jack and another student jumped in to protect their friends and a fight ensued.
19.	It is true the deceased commenced to retreat as he was outnumbered, but he continued his aggressiveness by picking up stones and throwing them at the defendants and two others.  In response, and obviously in an effort to discourage the deceased the two defendants and others retaliated by throwing stones at the deceased.  Stone throwing ceased immediately when the deceased was felled to the ground.  Which follows that the contention by the prosecution that the deceased was attacked with stones while he was retreating is not totally correct.  It is also true that the two defendants and others did not offer assistance to the deceased, but the incident was made known to others at the school which led to police being told.  The court also accepts submissions by defence counsels that neither defendants intended trouble when they went to the river and neither considered death as a result of the events that morning.  

20.	In any event despite provocation exhibited by the deceased the two defendants and members of their group exercised maturity and calm.  They walked away from the threat.  They resorted to violence only when it was necessary to protect their two members who were attacked and the violence employed was not excessive and they therefore could not be said to have acted in retribution.
21.	If the defendant Eli did throw the rock which felled the decease it is to be remembered that he was the one who was felled by the first punch which struck him on the mouth, so that by the time he recovered and got up the stone throwing had begun, and that stone throwing stopped when the stone thrown by Eli struck the deceased.  It that was so, then Eli threw that stone under provocation.
22.	The father of the deceased in a commendable address to the court before the submissions by counsels were delivered urged the court to forgive the two defendants and others involved in the assault of the deceased.  Ifoga by the families of the defendants have been received and accepted and the father and family of the deceased requested the court that the defendants be given the opportunity to continue to carry on with their education and to fight the burden of the stigma they will carry for the rest of their lives as a consequence of their conviction for manslaughter.  
23.	It is the view of the court that the father has not only conveyed the view of his family, but he has conveyed also the view of society.  The misconduct of the two defendants and their drinking mates during school hours has already been dealt by the school authority and they have been accordingly punished and expelled.  These two defendants are before the court today to be punished for their criminal conduct in causing the death of the deceased.  The father of the deceased obviously being fully briefed of the circumstances surrounding the offending and death of his son has petitioned the court to exercise its residual discretion to impose a non custodial sentence.  Had it not been for the bully, provocative, and violent conduct of the deceased these two defendants would not be before the court today.  In any event, restorative justice has been achieved by the family of the deceased and the families of the defendants.
24.	The court rejects the submission by the prosecution that the facts of this case resemble those in Police v Timoteo.   In Police v Timoteo the 19 year old defendant who had been drinking with his friends was told that the victim and another had a fight with the defendant’s young friend.  This angered the defendant who went looking for the victim.  He concealed himself when he saw the victim and threw a rock at close range when the victim walked past.  The rock struck the victim on the head resulting in his death.  P v Timoteo therefore can be easily distinguished on the grounds that there was premeditation and planning involved.  And the defendant Timoteo was not provoked.
25.	The special circumstances of this case warrants a non-custodial sentence but the sentence must nonetheless reflect the seriousness of the crime of manslaughter.  The sentence is as follows:
(a)	Each defendant is convicted and placed on probation for 2 years and will live, work and reside as directed by the Probation Service.
(b)	Each will perform 100 hours community service.
(c)	Each will attend any course or programme at such places and times as directed by the probation service.
(d)	Each will pay cost of prosecution of $1,500 to be paid by monthly instalments of $150 through the probation service. 
JUSTICE VAAI