Tele'a v National Prosecution Office [2017] WSCA 4 (31 March 2017)

IN THE COURT OF APPEAL OF SAMOA
Tele’a v National Prosecution Office [2017] WSCA 4

Case name:	Tele’a v National Prosecution Office
Citation:	[2017] WSCA 4
Decision date:	31 March 2017
Parties:	TANIELU TELE’A (Appellant) and NATIONAL PROSECUTION OFFICE (Respondent)
Hearing date(s):	27 March 2017
File number(s):	CA17/16
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. The sentence of imprisonment for 18 months will stand.
Representation:	M Peteru for Appellant Leone Sua-Mailo and Lucymaria T Sio for Respondent
Catchwords:	Appeal for sentence – appeal dismissed
Words and phrases:
Legislation cited:	Sentencing Act 2016 ss.59(1); 59(2); 59(4); 59(4)(c); Family Safety Act 2013 s. 17 New Zealand (Crimes Act 1961 (NZ) s 188
Cases cited:	Police v Malua (2016) WSSC 181 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA) Attorney General v Matalavea [2007] WSCA 08 Police v Faulkner [2007] WSSC 80 Leo v Attorney General [2011] WSCA 3 Samau v Attorney General [2011] WSCA 4
Summary of decision:

CA 17/16

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN

TANIELU TELE’A.
Appellant

AND:

NATIONAL PROSECUTIONS OFFICE
Respondent

Court:
Honourable Justice Fisher
Honourable Justice Blanchard
Honourable Justice Panckhurst

Hearing: 27 March 2017

Counsel:
M Peteru for Appellant
Leone Sua-Mailo and Lucymaria T Sio for Respondent

Judgment: 31 March 2017

JUDGMENT OF THE COURT

Introduction

1. The appellant originally appealed against conviction and sentence following his pleas of guilty to two charges in the Supreme Court. On a charge of intentionally causing grievous bodily harm he was sentenced to 18 months’ imprisonment. On a charge of being armed with a dangerous weapon he was convicted and discharged. His appeal against conviction has since been abandoned. The appeal is now confined to sentence.

Factual background

2. The appellant and his brother lived together at Saleimoa. It is not disputed that they had a fight while intoxicated; that the appellant went off and returned with a machete; that he struck his brother with it; and that the brother received a deep laceration to the left shoulder and superficial lacerations to the second and third fingers.

Proceedings in the Supreme Court

3. Following the appellant’s arrest the Police advised him of his right to counsel. The appellant said he did not want one. When the case was called in the Supreme Court, the Judge did not ask whether the appellant wanted counsel. The appellant proceeded without one. He pleaded guilty to the two charges he faced and was remanded for sentence.
4. At the sentencing hearing the appellant was not asked whether he wanted counsel and again proceeded without one. He accepted the summary of facts prepared by the prosecution.
5. In her sentencing remarks the judge identified the use of a weapon and previous convictions as aggravating features. The previous convictions arose from one episode resulting in charges of assault, threatening to kill, and being armed with a dangerous weapon for which he received a suspended sentence.
6. On the charge of intentionally causing grievous bodily harm the Judge took 18 months as a starting point, added six months for the previous convictions, deducted six months for early guilty pleas, and imposed the end sentence of 18 months imprisonment. She convicted and discharged him on the charge of being armed with a dangerous weapon.

The Appeal

7. In this Court Ms Peteru advanced a series of well-presented arguments to which we will come shortly.
8. All or most of these arguments would doubtless have been advanced to the sentencing Judge had the appellant been represented in the Supreme Court. At 9(4)(c) of the Constitution entitles every person charged with an offence to a lawyer “to defend himself”. We do not need to decide in this case whether art 9(4)(c) itself extends to the circumstances in which this appellant found himself when entering a plea and attending the sentencing. It is sufficient to say that in our view where an unrepresented defendant is entering a plea to charges of this seriousness, or is facing sentencing on such charges, judges ought to check the defendant’s position over representation. Judges should remind defendants of their right to be represented by a lawyer and ensure that they properly understand that right before continuing.
9. Of course defendants may elect to continue without a lawyer even when they fully understand their rights in that regard. But it seems probable that if that course had been followed in the present case, some of the matters raised for the first time in this Court would have been addressed in the Court below.
10. We turn now to the specific matters advanced by Ms Peteru.

(1): The role of alcohol

11. Ms Peteru pointed to the role of alcohol in the appellant’s conduct. She submitted that had the appellant been represented when the case was first called, counsel would have ensured that the appellant was referred to the Drug and Alcohol Court where the outcome might have been different.
12. There was, a process of evaluation and discretion through which the appellant would need to have passed before he could have finished up before the Drug and Alcohol Court. But in any event that possibility is now academic. He has already served most of his prison sentence before parole.
13. Had it been possible it would have been desirable to impose special conditions to follow release from prison. The pre-sentence report recommended a special condition that the appellant attend an approved alcohol and drug addiction programme. The use of such programmes will be compatible with a sentence of imprisonment for two years or less under the Sentencing Act 2016 - see s 59(1), (2) and (4) “special conditions” (c). The Act did not come into force until after the sentencing but it is an approach which will often prove desirable in future cases.

(2): Provocation

14. Ms Peteru submitted that the victim provoked the attack. The provocation was said to take the form of taunting of the appellant over non-attendance at village work and throwing stones at the appellant immediately before the machete attack.
15. Whether there had been provocation worthy of recognition for mitigation purposes will always be a matter of degree. In the present case if there had been a difference between the parties over attendance at village work it must have been well before the physical altercation. The appellant’s immediate reason for fighting his brother was said to be that he intervened during an argument between his brother on the one hand and his sister and his aunt on the other.
16. As to the throwing of stones by the brother, the appellant accepted at the sentencing a summary of facts in which the brother is said to have first thrown stones when he saw the appellant walking towards him with the machete. When the stones missed, the brother turned to run away but the appellant was able to catch him on the left shoulder with the machete.
17. Allowing for the fact that the appellant was unrepresented when he accepted the summary of facts, it is conceivable that there was some form of provocation of a modest nature. We are unable to take the point any further than that.

(3): Remorse

18. Ms Peteru drew attention to the appellant’s remorse as a mitigating factor. The remorse was reflected in the pre-sentence report. We agree that it was a mitigating factor.

(4): Reconciliation

19. We accept Ms Peteru’s point that the appellant and his brother, had achieved a full reconciliation. The brother also accepted that he too was at fault. He asks the Court for clemency to be shown to the appellant. We accept that this also was a factor in mitigation.

(5): Family Violence

20. Ms Peteru submitted that the Family Safety Act 2013 supported a lower sentence. As Justice Tuala Warren pointed out in Police v Malua (2016) WSSC 181, that Act is not confined to legal or de facto spouses. Given the broad definition given to “domestic relationship” in s 2, .it extends to violence between brothers as well.
21. Section 17 of the Family Safety Act materially provides:

17. Sentencing – (1) Where an offence took place within the context of a domestic relationship, the Court shall consider that fact as an aggravating factor against the offender when considering sentence.
(2) In sentencing offenders for an offence involving domestic violence, a court must also have regard to:
(e) the conduct of the offender towards the complainant or victim since the offence, and any matter which indicates whether the offender—

(i) accepts responsibility for the offence and its consequences;
(ii) has taken steps to make amends to a complainant or victim, including action to minimise or address the negative impacts of the offence on a complainant or victim; or
(iii) may pose any further threat to a complainant or victim;
(f) evidence revealing the offender’s—

(i) attitude to the offence;
(ii) intention to address the offending behaviour; and
(iii) likelihood of continuing to pose a threat to a complainant or victim; and
(g) whether the offender has sought and received counselling or other assistance to address the offending behaviour, or is willing to undertake such counselling or seek such assistance.

22. We accept that in terms of s 17 the appellant has accepted responsibility for the offence, is deeply remorseful, and has come to a full reconciliation with his brother. Whether he is likely to continue to pose a threat to the victim forms part of his overriding need to address alcohol and anger management issues. Ms Peteru indicated that he was prepared to do so.
23. Section 17 of the Family Safety Act is now an important source of guidance on some aspects of sentencing for offences committed within a family. Among other things it places new emphasis on the seriousness of intra-family violence; the need for special measures to protect the safety of victims who will continue to live in the same household as the offender; the importance of the offender’s attitude to his own behaviour; and the offender’s readiness to address problems through counselling and other forms of assistance. These were all considerations which needed to be taken into account in the present case.
24. On the other hand s 17 of the Family Safety Act does not purport to be a comprehensive code for the sentencing of domestic violence offenders. It does not abolish the maximum sentences established for particular categories of offence. Nor does it abrogate general sentencing precedents for those categories. The precedents continue to provide useful starting points, particularly for cases of serious violence. It will often be useful to take the provisional result of applying those more general sources as starting points before going on to make such adjustments as may be called for in the light of s 17 of the Family Safety Act.
25. All of the points made by Ms Peteru were pertinent. However they represent adjustments to be made after adopting the right starting point. We turn to the starting point in cases of this kind.

The starting point in cases of intentional grievous bodily harm

26. Ms Sua-Mailo and Ms Sio provided us with a particularly thorough and helpful survey of sentencing precedents for grievous bodily harm. They start with the sentencing methodology and guidelines proposed in R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA). These have since been adopted in Samoa: see Attorney General v Matalavea [2007] WSCA 08; Police v Faulkner [2007] WSSC 80; Leo v Attorney General [2011] WSCA 3; and Samau v Attorney General [2011] WSCA 4 at [69].
27. Taueki was a significant decision both for its methodology and for the guideline bands it provided. The methodology was usefully summarised in Attorney General v Matalavea at [15] as follows:

In order to compare this case with others we adopt the now conventional approach of identifying a starting point for the conduct, viewed objectively without reference to Mr Matalavea’s personal circumstances, before turning to those factors as well as others relied on in mitigation.

28. For intentional grievous bodily harm, the starting point in Taueki was to be taken from a system of three bands of ascending seriousness:

(a)Band one: 3-6 years;

(b)Band two: 5-10 years;

(c) Band three: 9-14 years.

29. Explaining Band One, the Court in Taueki said this:

Band one [36] This band will be appropriate for offending involving violence at the lower end of the spectrum of GBH offences. It is not an appropriate band for offences of extreme violence or violence which is actually life threatening. We have set the lowest starting point in this band at three years for the reasons (and subject to the qualification) set out at [27] above. Where none of the aggravating factors referred to in [31] are present, a starting point at the bottom end of this band would normally be called for. Where one or more of those factors is present, a higher starting point would be required.

[37] The following examples may assist with the application of the above principles:

(b) Domestic assault: A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.

30. As to placement within Band One, the Court in Taueki identified a number of aggravating and mitigating factors. Of particular relevance to the present case was the fact that use of a weapon such as a knife was seen as a serious aggravating factor. Applied to the facts of the present case, that might have suggested a New Zealand starting point of four years imprisonment.
31. It is important to then consider the matter from a Samoan perspective. The maximum sentence for intentional grievous bodily harm in Samoa is only 10 years compared with 14 years in New Zealand (Crimes Act 1961 (NZ) s 188). On the other hand Ms Sua-Mailo pointed out that on the passing of the Crimes Act 2013 the maximum penalty for intentional grievous bodily harm offences was increased from seven years to ten years. If anything this suggests a Parliamentary intention that a firmer overall approach will be taken to sentencing for grievous bodily harm in Samoa.
32. We have been much assisted by the NPO’s comprehensive survey of grievous bodily harm sentences passed in Samoa. We reproduce the NPO table here:

2012

Starting Point	2-5years
Highest End Sentence	12months – 4 years
Lowest End Sentence	6months- non custodial
2013
Starting Point	3- 6 ½ year
Highest End Sentence	5 years
Lowest End Sentence	6 months
2014
Starting Point	6 years
Highest End Sentence	3 years
Lowest End Sentence	6 months – non custodial
2015
Starting Point	5 ½ years
Highest End sentence	4 years
Lowest End Sentence	12 months – non custodial
2016
Starting Point	5 ½ years
Highest End Sentence	4 years
Lowest End Sentence	6 months – non custodial

33. We have also considered the individual cases collected by Ms Sua-Mailo and Ms Sio as the basis for that table. They are consistent with the bands adopted in Taueki. Broadly speaking, and with the odd outlier, grievous bodily harm attacks with a machete have tended to result in starting points of four to six years imprisonment.

Conclusions in the present case

34. In the present case the Judge adopted a starting point of 18 months. We are satisfied that this was much too low. Although sentencing can never be a matter of mathematical analysis, it is difficult to see how the starting point could ever have been much less than four years. Four years would have accorded with the minimum of three years suggested in Band One of the Taueki plus an uplift of one year for the use of a machete. It would also have accorded with the general run of grievous bodily harm sentences in Samoa in recent years.
35. Counsel in the case before us agreed that machete attacks are a frequent problem in Samoa. It is a matter of pure chance whether blows with a machete to the upper body result in death, permanent maiming, or something less. Deterrence is called for. Even on the most merciful of approaches, and reserving flexibility to sentencing judges, the starting point could not have been less than three years in this case. Also relevant is the fact that in 2012 (contrary to the advice in the pre-sentence report) the appellant received a suspended sentence for assault, threatening to kill, and being armed with a dangerous weapon where the weapon was a machete and the victim was his wife.
36. That forms the background against which Ms Peteru’s points in mitigation are to be considered. The points were well-made but could not possibly justify a reduction below the 18 months’ end sentence. The appellant might count himself lucky on this occasion.

Result

37. The appeal is dismissed. The sentence of imprisonment for 18 months will stand.
    

HONOURABLE JUSTICE FISHER

HONOURABLE JUSTICE BLANCHARD

HONOURABLE JUSTICE PANCKHURST