Bragovits v National Prosecution Office [2017] WSCA 2 (31 March 2017)

IN THE COURT OF APPEAL OF SAMOA
Bragovits v National Prosecution Office [2017] WSCA 2

Case name:	Bragovits v National Prosecution Office
Citation:	[2017] WSCA 2
Decision date:	31 March 2017
Parties:	USO TAUMATA a.k.a AUVELE TAUMATA BRAGOVITS (Appellant) and NATIONAL PROSECUTION OFFICE (Respondent)
Hearing date(s):	28 March 2017
File number(s):	CA15/16
Jurisdiction:	Criminal
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Fisher
	Honourable Justice Blanchard Honourable Justice Panckhurst
On appeal from:	Supreme Court
Order:	The appeal is dismissed and the sentence of 11 years 9 months will accordingly stand.
Representation:	P Mulitalo & L I Tanielu for Appellant L Sua-Mailo & O Tagaloa for Respondent
Catchwords:	Appeal dismissed
Words and phrases:	Excessive starting point – no recognition of letter from appellant – credit for guilty plea inadequate – no victim impact report to defence counsel prior to sentencing – remarks made by Judge in decision
Legislation cited:	Sentencing Act 2016 s. 6
Cases cited:	Police v Soi [2014] WSSC 191 R v Taueki [2005] 3NZLR 372 (CA)
	Police v Toli [2010] WSSC 4 Police v Atonio [2013] WSSC 32
Summary of decision:

CA 15/16

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN

USO TAUMATA a.k.a AUVELE TAUMATA BRAGOVITS
Appellant

AND:

NATIONAL PROSECUTION OFFICE
Respondent

Court:
Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst

Hearing: 28 March 2017

Counsel:
P Mulitalo & L I Tanielu for Appellant
L Sua-Mailo & O Tagaloa for Respondent

Judgment: 31 March 2017

JUDGMENT OF THE COURT

Basis of the appeal

1. The defendant was sentenced to 11 years 9 months imprisonment upon a conviction for attempted murder. He appeals against that sentence on the basis:
   1. The starting point adopted by the Judge was excessive,
   2. A letter of apology was not given sufficient recognition as a mitigating factor, and
   100. The discount for the guilty plea was inadequate.
2. Two further matters concerning the victim impact statement, which was not provided to counsel in advance of the sentencing, and a paragraph in the Judge’s sentencing decision will also require brief mention.

Background

3. The defendant and the victim, aged 41 and 40 years, lived in the same village and for a period of time were partners. However, the victim ended the relationship.
4. On 2 October 2015, the defendant both verbally threatened the victim and, at 11pm, entered the victim’s house armed with a machete. He failed, however, to make contact with the victim who was asleep at the time.
5. Following a complaint to the police the defendant was charged with both using threatening and insulting words, and unlawful entry. He appeared in Court and was remanded on bail to appear later that month.
6. On 5 October the victim obtained a protection order which was served on the defendant four days later.
7. On 22 October at about 5am the victim accompanied by her son aged 14 years and a young niece set off to walk to church. It was dark and few people were about. Near the church the defendant, clad in a hoodie and armed with a machete, confronted the victim. He punched the victim in the face. She tried to run to the safety of the Church, but the defendant pursued her.
8. He struck a blow with the machete to the victim’s head. This caused a 15 centimetre laceration running from the back of her neck, splitting her ear and cutting bones, nerves and blood vessels to the right side of the face. A second blow caused a 40 cm long and deep laceration to the upper back.
9. The victim fell to the ground unconscious. The defendant struck a third blow also to the victim’s back before running off because others were about to intervene. He ran to a relative’s house, told the relative what he had just done and asked that the police be advised. Soon after he was taken to the police station and interviewed.
10. Meanwhile the victim was taken to hospital. She required immediate surgery. Her wounds were sutured after facial bones had been wired in place. Her right middle finger was amputated because it was non-viable. The victim was discharged almost 2 weeks later. Subsequently she has experienced hearing difficulties and paralysis of the facial muscles. She is also scarred for life on account of the facial wound.

The Sentencing decision

11. The defendant pleaded guilty at the commencement of his trial. On 12 August 2016 Justice Tuatagaloa imposed the sentence of 11 years 9 months. She adopted a starting point of 15 years. From this deductions of 6 months for a village fine and a lifetime banishment order, 6 months for ifoga and 25 months in recognition of the guilty plea were made. These deductions totalled 3 years 1 month, whereas the end sentence was in fact 3 years 3 months less than the starting point.

Was the Starting Point excessive?

12. This was the principal ground of appeal. The prosecution suggested a 12 year starting point, while defence counsel proposed 10 years. The latter was based on an “average” arrived at by totalling sentences imposed in seven recent attempted murder cases in Samoa.
13. To arrive at a 15 year starting point the Judge correctly assessed the intrinsic seriousness of this particular case. She noted a range of aggravating factors, including that the victim was both vulnerable and “taken by surprise,” the “savagery of the attack,” premeditation, the breach of a protection order, the serious injuries sustained and long-term impacts on the victim, and the circumstance that the crime occurred in the presence of the victim’s only son and young niece who pleaded with the defendant to desist.
14. The range of aggravating factors led the Judge to characterise the attack as “ghastly and unjustified” and as “domestic violence at its worst.” ^[1] We cannot fault her evaluation of the seriousness of this case. Justice Tuatagaloa applied the method described in Taueki^[2] in a conventional manner. Recognising that the maximum penalty for attempted murder is life imprisonment, she concluded that the multiple aggravating features mandated a starting point of 15 years imprisonment.
15. We recognise that this represents an increase in the starting point for attempted murder when compared to those adopted in other cases. But, as in other countries, there is no guideline judgment for attempted murder in Samoa. This is because cases of this kind vary enormously, particularly in relation to the harm caused to the victim. This can vary from nothing (where for example the attempt involves a firearm but the bullet misses its target), to life threatening injuries as in this case. End sentences can also vary markedly, so that drafting a guideline for attempted murder sentencings can be problematic. Instead, particularly in the more serious cases it can be helpful to use a guideline for grevious bodily harm (GBH) offending, since attempted murder frequently involves the infliction of gross injuries, but with the added aggravating feature of an intent to kill which will necessitate an uplift to the starting point. In New Zealand, for example, the GBH bands in Taueki^[3] are often used. Band three, the most serious band, stipulates a range of 9-14 years and gives by way of one example a case described as:

“Serious domestic assault: In a domestic attack situation, where the attack involves a premeditated home invasion with the use of a weapon brought to the scene, the victim is vulnerable and the injuries caused have a lasting effect on the victim, a starting point at the top of the Band 3 range may we be required.”

The parallels to the present case are obvious.

16. Given that the maximum penalty for a GBH offence in New Zealand is 14 years, whereas attempted murder in Samoa carries a life sentence, and the need to factor in the existence of an intention to kill, it is clear that the Judge’s adoption of 15 years was within range as the starting point before allowances were made for mitigating factors.
17. We note that in Police v Toli^[4] and again in Police v Atonio,^[5] the Chief Justice discussed whether the starting point for attempted murder should go up to at least 12 years and whether a range was required. While we generally agree with the Chief Justice’s comments in these cases, we are doubtful that an attempted murder sentencing guideline specific to Samoa is appropriate.
18. Were there to be one, it would need to recognise and accommodate the Sentencing Act 2016 passed in November 2016. It contains principles of sentencing, including:

6. Principles of sentencing or otherwise dealing with defendants - In sentencing or otherwise dealing with a defendant, the court must:

(a) ......

(b) ......

(c) impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the defendant make that inappropriate; and

(d) impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the defendant make that inappropriate.

It follows that in relation to the most serious of cases the starting point maximum must reflect the statutory maximum, here life imprisonment. Hence a range, as opposed to a single figure starting point, or more likely multiple bands of seriousness, would be required given that the crime of attempted murder can vary so significantly in terms of seriousness.

19. A Samoa specific guideline would also represent a departure from the approach taken in other jurisdictions. Moreover, it would require proper consideration and argument in the context of an appropriate appeal. For now at least, we are satisfied that the use of an analogous GBH guideline is the better approach. We refer, by way of example, to a recent attempted murder sentencing decision in New Zealand^[6] where the judge used the Taueki guidelines for GBH to good effect.
20. Returning to this case and for the reasons we have given the 15 year starting point cannot be said to be excessive.

Letter of Apology

21. The defendant wrote a letter of apology that was provided to the Judge with counsel’s sentencing memorandum. It ran to over 20 pages and contained an apology to the victim and also the defendant’s claim that he had not lain in wait for the victim but rather was in the vicinity of the church at 5am to undertake village aumaga work. The argument was that the letter required recognition as a mitigating factor. The Judge did not refer to it.
22. There is nothing in this point. No apology was forthcoming when the defendant was interviewed for the preparation of pre-sentence report. A belated apology contained in a letter to the Court, and undermined by an implausible claim concerning why he was at the scene, did not warrant recognition or comment.

The Victim Impact Report

23. We note a similar submission. A copy of the victim impact report was not provided to defence counsel. Prosecution counsel accepted responsibility for this failure. Mr Mulitalo submitted that he was unable to make submissions in response to the report. This contention, however, fell away when counsel, having seen the report, accepted that it contained nothing he could have used to advantage.

Discount for guilty plea

24. A 15% allowance was made for the plea, calculated to be 2 years 1 month but in fact implemented as 2 years 3 months. The Judge said the plea was late since it was entered on the morning of the trial some 7 months after the event. In fact the plea was entered in July 2015, after a delay of eight and a half months. On any view of it the allowance made was adequate.

The Judge’s remarks

25. Under a heading, “The submissions by defence,” Judge Tuatagaloa repeated her rejection of the defendant’s claim that the attack was not premeditated and his presence at the scene was simply coincidental. She then said this:

“19. Counsel submitted the following as mitigating factors:

(a) Defendant has been banished from the village of Faleula for life;

(b) The victim has caused false hope to defendant by promising to marry him.

(c) The defendant is not to be solely blamed but the victim also contributed to her own fate through her conduct to please her brothers and family.”

Then followed the paragraph to which Mr Mulitalo took strong exception.

26. We refrain from repeating its contents. It began with the Judge commenting that she found factors (b) and (c) of the quoted paragraph “insulting and offensive.” Then followed brief remarks critical of defence counsel in both his professional and personal capacity. These remarks were expressed at a level of criticism which is unusual from judges. To his credit, Mr Mulitalo did not contend that they had influenced the sentencing outcome. Instead, he submitted that this Court should delete the remarks referable to him from the permanent judicial records of the Court because they were “unnecessary and over the top.”
27. We are not persuaded it is appropriate to do this. While the remarks were harsh they are to be read in their particular context. Immediately following them the Judge said:

“21. Samoan men who act and behave like this towards women show that they do not have any respect and/or value the Samoan culture on the position and status of women in our society. As Samoans we are proud of our culture and heritage and yet Samoan men who act and behave like this towards women makes this aspect of our culture ‘o le i’o mata o le tama le teine’ pathetic.

22. Domestic violence against women is not particular to one society. In Samoa, despite numerous messages and education around this issue there are still ‘men’ who see and treat women as their property. Unless and until these men change their mindset, Samoan women (and any woman for that matter) will always be vulnerable and in danger.”

We agree. This was obviously a heartfelt assessment and one of real importance both generally and in relation to the Judge’s evaluation of the background to this serious crime. It also highlights a gender based issue of great concern in Samoan society today. Such issues can, and do, generate strong expressions of opinion. Here the views expressed were not gratuitous, rather a response to submissions that plainly and reasonably caused fundamental concern. Accordingly, we are not minded to interfere with the Court record at this late stage, and particularly in relation to considered remarks made by a local Judge when we are Judges from a different society.

Result

28. The appeal is dismissed and the sentence of 11 years 9 months will accordingly stand.
    

HONOURABLE JUSTICE FISHER
HONOURABLE JUSTICE BLANCHARD
HONOURABLE JUSTICE PANCKHURST

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^[1] An acknowledged reiteration of a description used by Justice Nelson in Police v Soi [2014] WSSC 191
^[2] R v Taueki [2005] 3NZLR 372 (CA)
^[3] ibid., at paragraph [41](b)
^[4] Police v Toli [2010] WSSC 4
^[5] Police v Atonio [2013] WSSC 32
^[6] In R v Owens [2017] NZHC 319 (2 March 2017)