Mautagata v Police [2021] WSCA 12 (14 December 2021)

IN THE COURT OF APPEAL OF SAMOA
Mautagata v Police [2021] WSCA 12 (14 December 2021)

Case name:	Mautagata v Police
Citation:	[2021] WSCA 12
Decision date:	14 December 2021
Parties:	PILI MAUTAGATA (Appellant) v POLICE (Respondent)
Hearing date(s):	09 December 2021
File number(s):	CA08/21
Jurisdiction:	CRIMINAL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Honourable Justice Hansen Honourable Justice Harrison Honourable Justice Vaai
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	The appeal is allowed. The sentence is quashed. In its place we impose a sentence of six years imprisonment.
Representation:	U.I Sapolu & J Fuimaono-Sapolu for the Appellant L.I Atoa and E Tiitii for the Respondent
Catchwords:	Attempted murder – causing actual bodily harm
Words and phrases:	“appeal against sentence”
Legislation cited:	Constitutional Amendment Act 2020 Article 71
Cases cited:	Bragovits v National Prosecution Office [2017] WSCA 2; Police v Fidow [2019] WSSC 85; Police v Sualii [2018] WSSSC 38; R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).
Summary of decision:

CA08/21

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINU’U

IN THE MATTER OF:

an appeal pursuant to sections 176(1)(c), 180(5) and 180(5)(b) of the Criminal Procedure Act 2016

BETWEEN:

PILI MAUTAGATA, of Tanumalala Prison, Tanumalala, inmate.

Appellant

A N D:

P O L I C E

Respondent

Coram: Honourable Justice Hansen
Honourable Justice Harrison
Honourable Justice Vaai

Counsel: U I Sapolu and J Fuimaono-Sapolu for Appellant
L I Atoa and E Ti’iti’i for Respondent

Hearing: 09 December 2021

Judgment: 14 December 2021

JUDGMENT OF THE COURT

Introduction

1. On the day he was to stand trial, the appellant pleaded guilty to one count of attempted murder, two counts of causing actual bodily harm and one count of being armed with a dangerous weapon. He was sentenced by Nelson J to eleven years imprisonment. He appeals against the sentence as manifestly excessive.

Facts

2. The charges arose out of an altercation at the compound where the appellant lived with his wife and extended family. The appellant had been drinking alcohol. He had an argument with the first victim, the cousin of his de facto wife, over a ‘saogamea’ for a family faalavelave. The appellant thought the first victim had not contributed his fair share. Angry words were exchanged. Several hours later the appellant encountered the first victim again. He was sitting inside a faletele in the compound in the company of two friends. The appellant shouted abuse at him and said he would kill him that evening. He was further angered when the first victim told him to go to sleep as he was intoxicated.
3. The appellant returned to his house and armed himself with a small knife. The sequel was described by the Judge as follows:
   • “The defendant approached the first victim from behind with the knife and punched the first victim with his right hand causing the tip of the knife to hit and injure the first victim’s left lower eye. The defendant struck at the first victim again with the knife and injured the left side of the first victim’s jaw. The second and third victims intervened and tried to stop the attack. The defendant however continued to strike the first victim and this caused injuries to all three victims. Other family members intervened and managed to break up the assault and took the defendant to the back of the house.
   • The appellant then armed himself with a machete and returned to where the first victim was sitting. At this point, a family member intervened, punching and disarming the appellant. The Police were then called and the victims taken to hospital.”

Victim impact

4. The first victim was admitted to hospital for a day and continued treatment as an outpatient for three weeks. He said he had forgiven the appellant whose family had sought his forgiveness and given him and his community $250 tala and a fine mat.
5. The second victim similarly required hospital treatment for three weeks as an outpatient. He said he suffered no after-effects and has forgiven the appellant.
6. The third victim has not fully recovered from the stab wound to his back. It continues to cause him discomfort and to limit his ability to undertake physical tasks. At the time of sentencing he said the appellant had not sought him out to apologise.

The appellant

7. The appellant is a 46 year old man, married with two young children. He has no previous convictions. Testimonials from church and community leaders attest to his previous good character and of service to the community. He is supported by his wife but has been banished by her village. His incarceration will cause considerable hardship as she is not in good health and has relied on the appellant to help with household chores and the care of the children.

Sentencing decision

8. The Judge noted that the maximum sentence for attempted murder is life imprisonment and that the general starting point for attempted murder using a weapon is between 10 and 15 years. He said that in the circumstances here, where there was a high degree of violence and level of aggression involving an attack with a weapon on an unarmed man, requires a starting point at the upper level of the range. He settled on 14 years.
9. He made deductions from the starting point:
   • Six months to take account of the traditional apologies extended to the first victim and his family.
   • One year to reflect his banishment from the village and the substantial fine imposed by the village council.
   • Six months ‘as per usual practice’ to reflect the appellant’s previous good character.
   • One year for his late guilty plea.
   • Total deductions of three years reduced the prison sentence to 11 years.
10. The Judge imposed concurrent sentences of two and three years imprisonment for the offending against the second and third victims respectively – the good Samaritans as the Judge called them – imposing a higher sentence for the attack on the third victim because there had been no apology to him.

Grounds of appeal

11. Ms Fuimaono-Sapolu, who argued the case for the appellant, submitted the starting point adopted by the Judge was too high and insufficient allowance was made for mitigating circumstances. She also argued that evidence of provocation referred to in the pre-sentence report should have been taken into account. Counsel said that, in the absence of a guideline judgment, it is appropriate, as this Court suggested in Bragovits v National Prosecution Office,^[1] to use the guidelines laid down in the New Zealand case of R v Taueki ^[2] to ensure that the culpability of the offender is fairly assessed. She submitted that, had this approach been adopted, a much lower starting point would have been adopted.
12. In relation to the allowance made for mitigating circumstances, Ms Fuimoana-Sapolu referred us to Article 71 of the Constitution^[3] which provides that custom be taken into account by the Courts. She said that the allowance made for traditional apologies and sanctions was inadequate as was the six months allowance for the appellant’s good character.

Crown’s position

13. At the sentencing hearing, the Attorney General proposed a starting point of 10 years. Ms Atoa nevertheless defended the starting point adopted by the Judge as appropriate and a permissible exercise of a sentencing Judge’s discretion. She referred us to sentences imposed for attempted murder over the period 2013-2020 which she said supported her contention that the starting point used was within the available range.
14. Ms Atoa submitted the Judge made appropriate allowance for mitigating factors including the six months deducted to recognise the ifoga made to the first victim’s family and to recognise that the appellant had otherwise been of good character.

Discussion

15. We reject the suggestion that the Judge and this Court should have regard to evidence that the appellant may have been provoked. The appellant was represented by counsel at sentence.^[4] He had the opportunity to raise the issue by seeking an amendment to the summary of facts or calling evidence. It is too late to bring it up now. In any event, the allegations in the pre-sentence report lack cogency and specificity and, even if substantiated, seem unlikely to have established serious provocation which was and remained an operative cause throughout the offending.^[5]
16. On the issue of starting point, we find the appellant on much stronger ground. We are satisfied the 14 year starting point adopted by the Judge was excessive, and by a considerable margin.
17. Sentencing in cases of attempted murder has its challenges. The maximum sentence is life imprisonment but, as the Court observed in Bragovits in Samoa, as in most countries, there is no guideline judgment as the circumstances of the offending can vary so widely. It is therefore helpful, as counsel for the appellant submitted, to look for guidance in cases such as Taueki which provide a framework for analysing offending involving violence for the purpose of inflicting serious harm. Only the intention to kill present in a case of attempted murder is absent.
18. Of the factors identified in Taueki ^[6] as bearing on an assessment of culpability, those of relevance to the present case are:
    • The level of violence.
    • Premeditation.
    • The injury inflicted.
    • The use of a weapon.
    • Attacking the head.

None of the other potentially aggravating factors are present.

19. While an attack with a knife, particularly when directed to the head, is properly to be regarded as involving serious violence, there are significant moderating factors present in this case. The events on the day, particularly the earlier threat to kill, might suggest some level of premeditation but it is clear that the attack with the knife was a reaction to the later verbal exchange. A knife of any kind is potentially lethal, but the one used in this case was small and not as dangerous as the weapons often employed when an intention to cause serious harm is alleged. And, most importantly, the injuries inflicted were relatively mild, certainly when compared to those generally encountered in cases of grievous bodily harm or attempted murder. Indeed, we doubt that the nature of the attack and the injuries sustained by the first victim (the object of the attack) could have supported the charge of attempted murder without the prior threat to kill.
20. Recent cases in Samoa of sentencing for attempted murder to which we were referred confirm our view that the starting point adopted by the Judge was too high. Bragovits, where a starting point of 15 years was endorsed by this Court, involved a carefully planned attack with a machete that inflicted life threatening injuries and left the victim permanently disabled. Police v Fidow ^[7] involved an attack on a pregnant woman in the company of two young children with a machete, hammer and brick. A starting point of 13 years was used. In Police v Sualii ^[8], life threatening injuries requiring hospitalisation for two weeks were inflicted by four stab wounds. The starting point was 11 years. These authorities align with the prosecution’s approach at sentencing; the Judge did not explain why he disregarded it.
21. Weighing all the circumstances of the offending, we are of the view that a starting point of nine years imprisonment fairly reflects the gravity of the offending. While it would be possible to take issue with the allowance made by the Judge for individual mitigating circumstances, we consider that an overall deduction of one third of the sentence appropriately recognises the appellant’s good character, his late plea of guilty and his remorse, and the sanctions imposed pursuant to Samoan custom.
22. For these reasons, we consider that a sentence of six years imprisonment should have been imposed.

Result

23. The appeal is allowed. The sentence is quashed. In its place we impose a sentence of six years imprisonment.
    

HONOURABLE JUSTICE HANSEN
HONOURABLE JUSTICE HARRISON
HONOURABLE JUSTICE VAAI

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^[1] [2017] WSCA 2.
^[2] [2005] 3 NZLR 372 (CA).
^[3] Inserted by the Constitutional Amendment Act 2020.
^[4] Not counsel representing him on appeal.
^[5] See Taueki as at [32](a).
^[6] At [31].
^[7] [2019] WSSC 85.
^[8] [2018] WSSC 38.