Police v Tauai [2010] WSSC 23 (22 March 2010)

IN THE SUPREME COURT OF SAMOA

HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

IOSEFA OPETAIA TAUAI, male of Saleia.
Defendant

Counsels: Mr M. Lemisio & Ms L. Taimalelagi for the prosecution
Defendant unrepresented

Sentence: 22 March 2010

SENTENCE

According to the prosecution summary of facts this defendant appears for sentence on a charge that at Saleia on 23 November 2009 he did attempt to murder two different complainants during the same attack. It is alleged that he attacked the two victims with a bush knife. He has also been charged with grievous bodily harm in respect of both these assaults and is said to be appearing for sentence on that as well.

The court file however on this matter does not show or contain the attempted murder charge only the blank unsworn, unsigned copies of the cover page of an attempted murder information. And there is no indication of the record of what happened to such a charge. This matter was raised with the prosecution by me when these proceedings were last called on 1 March 2010 but despite subsequent mentions before the Chief Justice, there has been no effort to rectify the situation. What is on the court file are the two grievous bodily harm charges being the originals thereof with the appropriate recordations of the history of the matter and it is to these two charges that a guilty plea by the defendant has been noted. The defendant has this morning accepted also that in relation to the summary of facts he did use the words alleged in paragraph 12 of the summary in his statement to the Police namely that when he went towards the two complainants with the bush knife he intended to kill one or both of them.

The offences are serious and require imprisonment penalties, that is beyond question. But I am not going to send a man to prison where there are no proper charges before the court. I am therefore today going to sentence him on the lesser charges of causing grievous bodily harm but in doing that I bear in mind what he has admitted to intending and also what is in the police summary of facts. And that summary relates the following to be the facts:

1. The defendant is a thirty-six (36) year old male of Salei’a and Faatoia. He is married with three (3) children. He works as a farmer.

2. The first victim in this matter is a fifty two (52) year old married man with eleven (11) children. The second victim is a forty eight (48) year old married man with four (4) children. Both victims are matais of the village of Salei’a and part of their duties is to preside over village curfews.

3. On Monday 23 November 2009 at approximately 11.30pm, the defendant was returning to his village of Salei’a drunk from a drinking session with a friend at the village of Avao.

4. When the defendant reached Salei’a, the village curfew has already been sounded. The defendant was told by villagers guiding the curfew to go sleep.

5. On his way home, the1st victim who was one of the villagers guiding the village curfew, told the defendant that he (the defendant) never have any respect for their village curfew.

6. This angered the defendant who then went to his home and returned about fifteen (15) minutes later with a machete and torch to where the victims were.

7. As the victims were seated in a faleoo with other matais of the village, the defendant approached them armed with the machete and shone his light around the faleoo until he came across the 2nd victim.

8. As he shone the torch into the eyes of the 2nd victim, the defendant then swung the machete towards the victims head causing the victim to scream out in agony and flee the scene.

9. The 1st victim saw this and attempted to stop the defendant however the defendant raised the machete again and cut the 1st victim in the chest.

10. At this point, everyone fled the scene and hid behind the seawall. Later, the victims were taken to the Safotu Hospital where they were treated and hospitalized due to the seriousness of their injuries.

11. The cut to the 1st victims chest required seven (7) stitches. The cut on the 2nd victims forehead required twenty (20) stitches and has consequently left a noticeable V-shaped scar.

12. On Wednesday 2 December 2009, the defendant was accordingly cautioned and interviewed by police at the Apia Police Station. During the interview, the defendant said as follows:

"ou te tautino atu, sa ou alu atu lava e fasioti se isi o le toalua lea............"

The victim impact reports on the victims state that in respect of the victim who required 20 stitches to the head, he still suffers the after effects of his wounds and that he is a planter but cannot work for long periods anymore and still feels pain from the wound. This is not surprising given where the blow landed and the report notes that this victim has a v-shaped scar on his forehead, a permanent deformity. It sounds like a miracle that he survived the strike. The second victim received a comparatively lesser wound which has healed. But even though in his report he says he has forgiven the defendant he still struggles to understand why the defendant did this because the defendant used to live in his family. Not surprisingly as a result of this offending the defendant has been banished from his village.

Previous sentences for this sort of offending include those which have been referred to in the earlier sentencing and also these cases: Police v Iosia [2006] WSSC 3 where the defendant used a sapelu to deliver three strikes to the victim’s wrist, face and shoulder - an imprisonment penalty was imposed in that case, 3 years imprisonment; Police v Talalelei (February 1996) also involving a bush knife strike - 2 years 9 months; in 2005, Police v Ose 2½ years imprisonment, Police v Taafiliga 2 years imprisonment and Police v Leifi 2 years 3 months and Police v Tuitama [2005] WSSC 22, 2 years 9 months where the blow cut the palm of the victim and almost severed her left thumb.

Your case Iosefa is just as serious if not more so because of the premeditation involved in your going home and coming back with the sapelu and a torch, and then attacking the unarmed victims who were doing their duty in policing the village curfew. It is further aggravated by the fact that you did not cease with one strike, you struck out at a second victim with a second strike and you caused life threatening injuries to both of them from which one of them is still suffering. The maximum penalty for this offence is 7 years imprisonment and I take into account your guilty plea, the fact that you are a first offender, plus the fact that you have been penalized by being banished from the village, I also take into account your wife’s plea for leniency from the court this morning on behalf of your young family.

In respect of the victim that suffered the 20 stitch wound to his forehead, information S84/10, all those mitigating factors reduced what otherwise would be a penalty of 5 years imprisonment to one of 3 years. For the other charge S85/10 you are convicted and sentenced to 2 years imprisonment. These terms are to be served concurrently and your remand in custody time is to be deducted. In other words defendant will serve 3 years less the remand in custody time.

JUSTICE NELSON