Police v Soi [2014] WSSC 191 (12 November 2014)

IN THE SUPREME COURT OF SAMOA
Police v Soi [2014] WSSC 191

Case name:	Police v Soi
Citation:	[2014] WSSC 191
Decision date:	12 November 2014
Parties:	POLICE (Prosecution) TALAPELO SOI male of Salimu Fagaloa and Lalovaea male of Salimu Fagaloa and Lalovaea. (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of attempted murder, you are convicted and sentenced to 10½ years imprisonment. Remand in custody time awaiting sentence to be deducted. In relation to the second charge against you of actual bodily harm caused by your punching the complainant in April 2014. I noted that caused only bruises but was part of the turbulent history of your relationship. In respect of that matter there is no redeeming factor in your favour except your guilty plea. You will be convicted and sentenced to 6 months in prison. Because that is a separate assault on a separate date that penalty is cumulative to your other term. So you will serve a total term of 11 years in prison for these charges.
Representation:	L Su’a-Mailo and L Sio for prosecution T Peniamina on behalf of F E Niumata for defendant
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TALAPELO SOI male of Salimu Fagaloa and Lalovaea.
Defendant

Counsel: L Su’a-Mailo and L Sio for prosecution
T Peniamina on behalf of F E Niumata for defendant

Sentence: 12 November 2014

SENTENCE

1. The defendant appears for sentence having pleaded guilty to two charges, one of causing actual bodily harm and one of attempted murder. The police summary of facts states that he is a 32 year old male of Fagaloa and Lalovaea and the victim is his 31 year old Tongan wife. A suppression order will issue to prohibit publication of the details of the victim.
2. At the time of the first offending which is the actual bodily harm, the defendant and the victim were living in a de facto relationship. By the time of the attempted murder matter they had separated. It appears the parties met in Fiji in the year 2012 where they were both studying. They began their relationship and a son was born. The victim returned with her son to Tonga while the defendant continued his studies in Fiji. At the end of 2013 the defendant completed his studies and returned home to Samoa. The victim left their son in Tonga with her parents and travelled to join him in Samoa. At the time they were planning to be married.
3. When the victim arrived in Samoa she lived with the defendant and his family at Lalovaea. Problems arose between the defendant, the victim and the family leading to turbulence in the relationship. At times he would physically and verbally assault the victim when he was intoxicated. Eventually they left Lalovaea and went to live with the defendants other family at Solosolo but it appears their unhappy relationship continued.
4. On a date in April this year the actual bodily harm occurred. On that date the parties went to work and after work went to the RSA and socialized with friends. After that they returned home to Solosolo by bus. They arrived home and the victim went to bed but the defendant continued to drink. At that time a relative of the defendant approached the victim asking for some money for diapers for her baby. The victim gave her some coins and when the defendant found this out he became angry. The couple started arguing and the defendant punched the victim while she was lying on the bed. The victim sustained some bruises and as a result of the incident decided she had had enough and left the defendant.
5. Two days later she lodged a complaint with the police through the Samoa Victim Support Group. The Group a few days later applied to the Family Court for a protection order for the victim. On 8 April 2014 an interim protection order was granted by the Family Court. On 22 April the victim and defendant appeared again in the Family Court and the protection order was made final. After the granting of the order the victim made a decision to return to Tonga. Obviously it appeared the relationship was at an end.
6. At that time she lived with a representative of the Victim Support and was working at a beauty salon at Matautu-tai. During this period the defendant on a number of occasions tried to contact her and tried to approach her. She refused to see him and denied his requests for a second chance. No doubt she was also conscious there was a protection order in force against him.
7. There is no record on the documentation before me whether she reported these efforts by the defendant to breach the protection order but in retrospect she probably should have. Because they would have had consequences for the defendant and may have averted the later incident.
8. This is the background to the events of the attempted murder charge. This came about on Friday 9 May 2014 and began with the defendant trying again to see the victim but his requests to see her and to meet her were denied by the Victim Support representative. And he was reminded there was a protection order forbidding contact between him and the victim.
9. The next day Saturday, 10 May 2014 the victim went to work. When she went outside for a cigarette she walked to the end of the building where she worked. She was shocked to see the defendant standing there lighting a cigarette and with a machete. She immediately turned around and ran back into her place of work pursued by the defendant. She ran inside the salon and tried to lock the door but the defendant was able to push through and come inside. Once inside he began slashing the victim with the machete. The summary records that the victim tried to defend herself by putting up her hands but his attack continued. Eventually she fell to the floor and as the defendant was probably preparing to deliver the final fatal blows she whispered to him that she was pregnant. Remarkably this caused the attack to cease and the defendant turned around and left the salon.
10. The victim was taken to hospital and the medical report lists the following injuries: large number of lacerations including two on the forehead and skull, deep enough to expose the bone; one large cut over the right eyebrow; large wound to the neck near to the jugular vein and carotid artery; large incision wounds to the arms and hands as well as deep wounds to the right chest and trunk of the body; large cut to the right lower leg; patient bleeding profusely, amount of blood loss unknown.
11. Looking at these wounds it is amazing the victim survived. According to the medical report she spent 16 days or so in hospital recovering from her wounds. They are tough people these Tongans.
12. The victim impact report indicates that the physical injuries have healed but the trauma of the incident still continues to haunt the victim. I would imagine that anyone who was attacked in this manner will never forget the images of such an occurrence.
13. There is no doubting an imprisonment penalty is required for the defendants offending for many reasons. This is domestic violence offending at its worst and it arises from a relationship which has, from what I have read, a history of physical and verbal abuse. These are things which the law of this country will not tolerate or accept.
14. It is also noted that the attempted murder offending involved the use of a weapon to inflict serious and substantial injuries. Clearly the defendants intent was to kill the complainant when he went to that salon and only her quick thinking in telling him she was pregnant saved her life.
15. The offending was pre-planned because the defendant went to the salon armed with a sapelu and he waited outside her place of work until she came out, to verify she was at work. When he saw her he launched his attack.
16. The defendants actions were also in clear breach of the Family Court protection order issued against him. His offending has had a lasting impact on the victim and no doubt on her Tongan family. I will deal with the more serious charge first, that of the attempted murder.
17. This has a maximum penalty at law of life imprisonment. But I agree with the prosecution submission a 10 year start point is appropriate in all the circumstances. I also agree with their submission that start point requires an upgrade. Not because of your previous conviction which is an old one in 2001 and which was for a minor offence. But the upgrade must reflect the savagery of your attack on this woman and its pre-planned and calculated nature and to reflect the fact that you used a lethal weapon namely a machete. I do not agree with the prosecution however that a 5 year upgrade is warranted. In my view a 3 year upgrade sufficiently reflects these matters. That means Talapelo a start point of 13 years in prison for sentence.
18. You are entitled to a deduction from that for your guilty plea but that was not entered until trial day. Notwithstanding that it has avoided the necessity of a trial, saved the courts time and means the victim does not have to testify and relive an unpleasant and unsavoury incident in her life. It is also an indication of your remorse and some acceptance of responsibility for your berserk attack. I deduct therefore 2 years to reflect those factors, leaves a balance of 11 years. You have a good background of service as reflected in the pre-sentence report in relation to providing for your family and apart from the minor offence in 2001 referred to, you have a clean criminal record. To reflect that background I will deduct 6 months from the balance of sentence, leaves 10½ years. There are no other deductions Talapelo you qualify for under law.
19. On the charge of attempted murder, you are convicted and sentenced to 10½ years imprisonment. Remand in custody time awaiting sentence to be deducted.
20. In relation to the second charge against you of actual bodily harm caused by your punching the complainant in April 2014. I noted that caused only bruises but was part of the turbulent history of your relationship. In respect of that matter there is no redeeming factor in your favour except your guilty plea. You will be convicted and sentenced to 6 months in prison. Because that is a separate assault on a separate date that penalty is cumulative to your other term. So you will serve a total term of 11 years in prison for these charges.
    

JUSTICE NELSON