An appeal brought by one Malakai Peteru Tuivasa against the Office of the Attorney General has been dismissed. The decision was delivered by Justice Fisher, Justice Bankhurst and Justice Lesatele Rapi Vaai on 19 February 2016. Semi Leung Wai appeared for the appellant while Precious Chang represented the respondent. The decision in full is published below:
JUDGMENT OF THE COURT
Introduction  On the second day of trial the appellant pleaded guilty after the prosecution downgraded the charge against him (Malakai) and Soti Maaga (Soti) from murder to manslaughter. On the 21 December 2015, Nelson J sentenced both offenders to 5 years imprisonment. Malakai has appealed against this sentence.
 The appeal was advanced on the basis that the learned judge erred in: (a) treating the attack which resulted in the death of the victim as a group attack and (b) concluding that both offenders were equally culpable. Hence Mr. Leung Wai argued that the sentence was manifestly excessive.
The Background Facts:  The incident occurred at the Savalalo fish market on 21 March 2015. The victim, aged 27 years was the captain of a fishing vessel. He and two crew members had been drinking heavily. While walking towards a market they encountered Soti’s sister who was then 8 months pregnant. The victim bumped into her, almost causing her to fall to the ground. Words were exchanged and the incident attracted the attention of others.
 Soti, the appellant Malakai, the pregnant woman’s husband and his brother Sakalia, were amongst those who witnessed what had occurred. They ran to the scene and seconds later Soti, Malakai and Sakalia chased after the victim and his crew members as they made off.
 The chase culminated in the separation of the victim from his crew mates as he was pursued by Soti and Malakai. Taunts were exchanged and rocks taken up to be used as missiles. The victim ran to the end of a jetty, jumped onto and off a number of boats and then into the sea in an endeavour to escape his pursuers.
 Nelson J, in light of witness evidence he heard before the charge of murder was downgraded, found that Malakai threw a rock at the victim while he was trying to swim away but that the rock missed its target. Tragically, a rock thrown by Soti did not. It hit the victim in the back of the head. He suffered a serious laceration, lost consciousness and drowned. It was necessary for fishermen to use diving gear to recover his body.
 In his very helping sentencing remarks, Nelson J assessed the culpability of the 2 offenders in this way: “Although it was only one defendant who threw the rock that caused the injury the trial evidence made it clear that at the time both were pursuing and attacking the deceased. And that both defendants were at the time in possession of rocks. According to one of the witnesses the second named defendant Malakai also threw a rock but that missed the deceased. As such the defendants were engaged in a joint attack and were aiding and abetting each other in that enterprise. Both defendants are therefore responsible for the harm inflicted by the other of them. There is no justification for differentiating their roles in this matter. And it is appropriate that they receive the same sentence”.  After noting the general guideline assistance for manslaughter sentencing provided in Nepa v Attorney General  WSCA 1, the Judge described the attack on the victim as a provoked attack, but also a group attack “in the sense that it involved more than one defendant.” He characterised the response of the offenders as “retaliation--out of proportion to the provocation”.
 In light of Nepa he fixed 9 years imprisonment as the appropriate starting point given the limited nature of the group element and the circumstance that the origin of this tragedy was the victim’s initial provocative behaviour. This assessment also took into account the aggravating feature of the use of rocks as weapons against “an unarmed and fleeing (victim)”.
 However, from the 9 year starting point the Judge allowed reductions of 1 year in recognition of the offenders’ youthfulness and remorse (both were l8 years of age at the time), 1 year for their clean records, 6 months for the reconciliation and ifoga provided by the offenders and their families, and 18 months for their guilty pleas entered as soon as the charged was downgraded. Accordingly, end sentences of 5 years were imposed. Soti has not appealed against his sentence.
Was this a “group attack”?
 We can deal with this aspect quite briefly. The guideline decision of Nepa identified a 10-12 year starting point as appropriate for “ordinary cases involving a group and an unprovoked attack resulting in death” by manslaughter.
 Although the Judge referred to this guideline he did not apply it. Instead he fixed a 9 year start point because of the provocation and the limited nature of the group element. We are not persuaded there was any error in his approach.
Were the offenders equally culpable?  This was the major argument. There proved to be 2 aspects to the content on. The first was whether the trial judge erred in fact in deciding both offenders were joint and equally culpable. The second was a more procedural argument - whether Nelson J’s finding that Malakai threw a rock at the victim while he was in the water was available t him in the circumstances of this case. We shall explain the relevant circumstances, and consider this procedural aspect, in the next section of the judgment.  Putting aside for the moment the asserted procedural irregularity, we reject the submission that Nelson J erred in concluding that after the victim jumped into the sea Malakai threw a rock at him which missed its target. Before the guilty pleas were entered the judge heard a substantial part of the prosecution case.
It included evidence from an eye witness who described a man answering the appellant’s description who threw a rock shortly before Soti caused the fatal injury. We were taken to the transcript. It became obvious that the witness saw the two offenders in final pursuit of the victim and that he could distinguish between the two, including who threw the rock which missed and who hit their target. Accordingly, there was an ample evidential basis for the Judge’s finding.
 We also agree with the judge’s assessment that the offenders were equally culpable. This was a joint attack. Both were fully involved. It was a matter of luck who inflicted the fatal head injury. It would have been wrong to characterise Soti as the more culpable of the two. Indeed, even without the evidence of Malakai’s unsuccessful attempt to hit the victim with a rock in the water, this pursuit had all the characteristics of a joint enterprise.
 It remains, however, to consider the procedural point.
Should there have been a disputed fact hearing?  More than 2 weeks before the sentencing Mr Leung Wai wrote to the Assistant Attorney General seeking deletion from the summary of facts of the reference to Malakai having thrown a rock as previously described. Unfortunately, there was no response or discussion between counsel, following receipt of the letter.
 On 21 December counsel raised his concern before Nelson J but in a manner which before us, with the benefit of hindsight, he described as inadequate. Mr. Leung Wai said to the Judge that whether his client had thrown a rock at the victim in the water remained in dispute, but he did pursue the matter further. He contemplated that this indication alone would trigger the need for the prosecution to call evidence, to which Malakai could respond. Counsel seemed to think that Nelson J could not make an adverse finding against the appellant on the basis of the trial evidence he had heard, rather that there had to be a further hearing.  We consider that there were procedural deficiencies in the way this disputed fact aspect was handled. Counsel should have conferred in advance of the sentencing hearing. Then if sufficient was said to the Judge to put him on notice that a dispute existed, he was bound to resolve the matter through discussion with counsel. If warranted, a disputed fact hearing should have occurred. That said, we compliment Mr. Leung Wai for his candour in accepting that he should have been more assertive in explaining his client’s position to the Judge. Our impression is that the Judge remained unaware that a problem existed.
 We note that the Sentencing Bill 2015 contains in clause 17 a process for the resolution of disputed facts. The clause mirrors section 24 of the New Zealand Sentencing Act 2002: “24 Proof of facts (1) In determining a sentence or other disposition of the case, a court- (c) may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and (d) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,- (a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case: (b) if a party wishes the court to rely on the fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial: (c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false: (d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence: (e) either party may cross-examine any witness called by the other party.
(3) For the purpose of this section,- aggravating fact means any fact that- (a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and (b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case,
mitigating fact means any fact that- (a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and (b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case. It is to be hoped that the Western Samoan Bill will be passed into law promptly. This proposed process will provide valuable guidance to counsel and judges as well in dealing with factual disputes in the sentencing context.
 Despite the difficulties encountered by counsel we are satisfied no miscarriage of justice was occasioned. In this case the circumstances indicative of a joint enterprise were overwhelming, such that the Judge would have been justified in indicating to counsel that whether the appellant threw a rock at the victim while he was in the sea was not of significance to the sentencing outcome because an equal culpability finding was inevitable in the context of this particular crime.
Result  The appeal is dismissed.
Honourable Justice Fisher Honourable Justice Panckhurst Honourable Justice Vaai