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Police v Euini [2020] WSSC 5 (24 January 2020)

SUPREME COURT OF SAMOA
Police v Euini [2020] WSSC 5

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D
NISANI EUINI, male of Saasaai and Pu’apu’a
Accused

Representation:
L. Sio for Prosecution
Roma for Accused

Sentencing Hearing: 17 January 2020
Sentence Decision: 24 January 2020

S E N T E N C E

1. Nisani, you appear for sentence on one charge of manslaughter which carries a maximum penalty of up to life imprisonment.

The Offending

2. According to the Second Amended Summary of Facts dated 16 January 2020 accepted by you through your lawyer, you and your co-defendants were employed by Ah Fook Company Limited and the deceased victim was employed by the landlord of the property rented by your employer. On the night of 11^th November and morning of 12^th November 2016 between 8pm and 1.00am at Salelologa, you, your co-defendants and the deceased agreed to contribute $10.00 each to buy a bottle of alcohol. A large bottle of vodka was bought and you all started a drinking session together at the rental house where you and your co-defendants stayed
3. During the drinking session, an argument broke out between the deceased, your co-defendants and you. You had asked one of your co-defendants to ask your employer for the keys to the car to buy more alcohol. The deceased turned to you, asked you “e ke fia poko” and grabbed your neck. You then punched the deceased’s jaw. He fell backwards and struck his head on the concrete floor. He started to snore and did not move. You then kicked the deceased in the shoulder and your co-defendants then joined in punching the deceased mouth twice while he was on the floor unconscious.
4. According to your counsel and accepted by prosecution counsel is that you left the scene where the deceased was and when you returned, your co-defendants were assaulting the deceased, you intervened and tried to stop them.
5. After the assault, and in order to conceal the incident from your employer, you and your co-defendants moved the deceased from the building to outside of the building. As you three carried the deceased down a set of stairs in the building, one of your co-defendant’s dropped the deceased head first resulting in the deceased hitting his head on the concrete. As you three continued to carry him to under a talie tree outside, he was again dropped and he again struck his head, this time on some rocks under a talie tree next to the building. The deceased was then left there under the talie tree.
6. The next morning, one of your co-defendants checked on the deceased and discovered he was dead. He then told you and one of your other co-defendants and you then told your other co-defendants not to make of it. You then all prepared for work and left for work.
7. The deceased was then later found by one of your work colleagues under the talie tree. When found, the deceased’s pants were down to his knees. The matter was reported to Police, he was taken to hospital and pronounced dead on arrival.
8. Following a post mortem, the cause of death was acute subdural haemorrhage being the result of blunt force trauma to the head.

The Accused

9. The Summary of Facts states that you are a single 26-year-old male of Saasaai, single and formerly employed as a delivery truck driver. Your PSR says however that you are married with two young children. According to your PSR, you are the eldest of seven children and completed high school to year 11. After school, you spent a number of years rendering service to your family before being employed by your former employer in March 2016. You subsequently found employment with Lucky Construction until you were apprehended by Police. You have positive references in support of your character.

The Victim

10. The victim is a 42-year-old male of Fagamalo and Salelologa. In the VIR prepared by his brother-in-law, he says how he was shocked by the death of the deceased, their sadness at his passing and that he was a person who gave strong support to their family. No reconciliation has occurred nor an ifoga performed.

Aggravating Factors:

11. The aggravating features of your offending are:
    • (a) Group assault on the deceased;
    • (b) Your punch targeted the head;

(c) There was a continuing assault by your co-defendants involving multiple blows to the deceased; and
(d) The vulnerability of the victim in that as he was on the ground, you kicked his shoulder and your co-defendants continued to kick and punch him. As he was unconscious, he was also moved and in the course of doing so, he was dropped twice striking his head on the concrete and rocks next to the talie tree.

12. Prosecution submits that I adopt as an aggravating factor and uplift the start point for sentence on the grounds of concealment of the offending. In the Sentencing Act 2016, section 8 provides that concealment of the offending from the authorities is an aggravating factor in terms of offending against persons under 18 years of age. This factor is not set out in section 7. This does not mean that concealment of an offence from authorities cannot be taken into account when sentencing defendants generally but in this case, it appears that concealment was (a) from their employer and not authorities; and (b) the concealment was in relation to the assault (paragraph 11, Summary of Facts) and not the death. When the deceased was moved outside, he was not dead nor was he believed by any of you to be dead.
13. You are a first offender so there are no factors aggravating to you personally.

The mitigating features

14. In respect of your offending, I accept as mitigating that there was a low level of provocation by the deceased grabbing your neck and uttering to you ‘pe e ke fia ulavale’ and that this then prompted you to punch his jaw. I also accept that when you returned and found your co-defendants continuing to assault the deceased, you intervened to try and stop them.
15. In terms of mitigating features personal to you, I take into account your remorse for your actions. I also take into account your guilty plea on the reduction of the charge to manslaughter, your prior good character and the assistance to authorities including as a prosecution witness. I also take intyo account the village penalties imposed on you which was in the end the payment of $7,000.00, 12 boxes of tinned fish, 5 boxes of chicken and a feast for the village.

Discussion

16. Nisani, you appear for sentence on the charge of manslaughter which is a very serious charge carrying a penalty of up to life imprisonment. Sagogo, the 42-year-old deceased, has lost his life at a relatively young age and his family, a loved family member. This is as a result of your actions. In your foolishness, you attempted to hide the assault from your employer to hide the assault against him rather then to seek medical attention for him. When you then found out the next morning that Sagogo was dead, you told your co-defendants not to say anything and then prepared and left for work as if nothing had happened. You left the deceased there under the talie tree dead, when found, naked with his pants down to his knees.
17. While you had no intention to kill the deceased, when you found out that he was dead, your actions were coldhearted leaving his lifeless body there under the tree and pretending nothing had happened.
18. Prosecution seeks an imprisonment term with a start point of 15 years imprisonment. This adopts a 12 year start point in terms of the Nepa v Attorney General [2010] WSCA 1 (7 May 2010) Guidelines and an uplift of 3 years for the inhumane treatment of the deceased and the attempt to conceal.
19. In my view, the appropriate start point in terms of Nepa (supra) is 10 years with an adjustment downwards to 9 years for the low level provocation by the deceased and for your intervention to stop your co-defendants with the continued assault. The general level of violence inflicted on the deceased in this case is at a lower level in my view then in other similar cases of this type justifying a 10 year start point before deducting the 1 year mitigating factors for the offending.
20. I do not provide an uplift for the concealment of the assault because the concealment related to concealing the assault from your employer and not from the authorities. Whilst the deceased was found in a state of semi-undress, it is also not established that you placed him in that demeaning way so I will not uplift the start point on that basis.
21. I therefore adopt 9 year start point for sentence. I deduct 6 months for your remorse, 6 months for your prior good character and 6 months for the village penalty paid. You get no credit for an ifoga as no ifoga was carried out with the family of the deceased nor any apology rendered.
22. From the 7½ years, I deduct 6 months for your assistance to authorities and from the balance, 21 months for your guilty plea on the reduction of the charges to manslaughter.

Result:

23. Accordingly, you are convicted and sentenced on the charge of manslaughter to 5 years and 3 months imprisonment less time in remanded in custody.

JUSTICE CLARKE