Police v Vesi [2015] WSSC 111 (2 October 2015)

SUPREME COURT OF SAMOA
Police v Vesi [2015] WSSC 111

Case name:	Police v Vesi
Citation:	[2015] WSSC 111
Decision date:	2 October 2015
Parties:	POLICE v MOTOI VESI male of Savaia, Lefaga, and Aleisa
Hearing date(s):
File number(s):	S752/13
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 4 years imprisonment. Any time the accused has already spent in custody pending the outcome of this matter is to be further deducted from that sentence
Representation:	M T Lui for prosecution T Leavai for accused
Catchwords:	attempted murder - maximum penalty of life imprisonment - causing grievous bodily harm with intent to cause grievous bodily harm – use of violence and a weapon – vulnerability – aggravating and mitigating features – provocative behaviour of the accused – impact of the offending – extent of the injuries to the victim – starting point for sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, s.104, s.118 (1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S752/13

BETWEEN

P O L I C E

Prosecution

A N D

MOTOI VESI male of Savaia, Lefaga, and Aleisa

Accused

Counsel: M T Lui for prosecution

T Leavai for accused

Sentence: 02 October 2015

S E N T E N C E

The charges

1. The accused Motoi Vesi (Motoi) a 34 year old male of Aleisa and Savaia, Lefaga, appears for sentence on one charge of attempted murder, contrary to s.104 of the Crimes Act 2013, which carries a maximum penalty of life imprisonment, and one charge of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s.118 (1) of the Act, which carries a maximum penalty of 10 years imprisonment. The accused had initially pleaded not guilty to the charges against him but changed his plea to one of guilty on the date of hearing as this matter was about to go to trial.
2. The charge of attempted murder is in relation to the victim Atonio Toma and the charge of causing grievous bodily harm is in relation to the victim Faith Toma.

The offending

3. There are two versions of what happened in this case. One by the prosecution and one by the accused. I will set out the prosecution’s version of the facts first and then the accused’s version which relates only to part of what happened.
4. According to the prosecution’s summary of facts, the victim Atonio Toma (Atonio) who is 30 years old and the victim Faith Toma (Faith) who is 18 years old are brothers. On the night of 28 May 2013, the victims and their friends were playing pool at a billiard parlor at Saleimoa-uta. The victim Atonio and his friends were drinking alcohol and enjoying themselves while the victim Faith who was not drinking was playing pool and enjoying the company of his brother and their friends.
5. Later that night, the accused came to the billiard parlor with a friend and played pool with the victims. When the accused arrived he was carrying a machete. He and his friend were already drunk and continued drinking with the victims and their friends.
6. Just before the billiard parlor closed for the night, the accused got angry at Faith and started an argument because he did not want to stop playing billiards. He started swearing loudly and the victims told him to keep his voice down and to stop swearing. The accused became more angry and picked up his machete and slashed the billiard table three times with it. This caused damage to the billiard table, the billiard balls, and the billiard cue stick.
7. The accused was restrained by his friend and taken out of the billiard parlor. Once outside, the accused swore several times in a loud voice. Atonio went outside to the accused and told him to keep his voice down and stop swearing but the accused swore at Atonio. This angered Atonio and he approached the accused.
8. Because the accused had a machete, Atonio picked up rocks for protection and challenged the accused to fight him. Atonio said he would put down his rocks if the accused put away his machete. The accused said nothing but just as Atonio threw away his rocks the accused attacked him with the machete slashing at Atonio. Atonio raised his hand to protect himself and received several injuries to his hand as a result.
9. In the struggle both men fell down with the accused kneeling over Atonio and Atonio trying to pull the accused down. The accused struck Atonio several times with the machete. On the last strike the accused put all his strength into the blow. Fortunately, the accused lost grip of the machete as he was aiming to strike a third time and the machete fell out of his hand. At this point Atonio lost consciousness due to his injuries.
10. Upon hearing the commotion outside of the billiard parlor, Faith went to see what was happening. He saw his brother Atonio push the accused away before Atonio fell to the ground. Faith had a billiard cue in his hand and he rushed to Atonio and the accused and hit the accused with the billiard cue. Faith hit the accused again when he saw the accused slash at him with the machete. Faith did not feel the machete hit him but he knew he had been injured. The accused then ran off. Faith then went to help his brother Atonio and as he bent down he saw and felt a spray of blood come out of his mouth. He then realised he had a cut on his mouth which caused the bleeding.
11. Both victims were later taken to the National Hospital at Motootua the same night. Upon medical examination the following injuries were noted on Atonio: (a) two deep lacerations on the right arm down to the bone causing damage to the surrounding nerves, (b) a deep cut on the left palm, (c) a cut on the left cheekbone, (d) a cut on the left arm near the elbow, and (e) a cut on the left side of the chest. The loss of consciousness suffered by Atonio at the time of the attack by the accused on him was also an injury to Atonio.
12. The deep lacerations on Atonio’s right arm and the deep cut on his left palm were sutured. He was also given blood transfusion and his right arm was kept in plaster. Atonio was admitted at the hospital for three days for observation and after being discharged required ongoing treatment for about a week.
13. Upon medical examination, the following injuries were noted on Faith: (a) a fractured mandible (lower jawbone), (b) a deep cheek laceration, (c) a swelling on the left side of the mouth, (d) fractured teeth, (e) bleeding from the floor of the mouth, and (f) his upper and lower teeth were not parallel. As a result of Faith’s injuries, he had to undergo treatment for nine weeks. This included realignment (wiring) of his jaw in order to restore it to its normal condition.
14. The accused does not dispute what happened inside the billiard parlor but he disputes certain parts of the prosecution’s summary of facts relating to what happened afterwards outside of the billiard parlor. According to the accused’s version of what happened, he says that after he had slashed the billiard table with his machete he walked out of the billiard parlor but Faith ran after him with a billiard cue. He then ran to get away but Faith caught up with him and hit him on the left cheek with the cue. When he saw Faith swing the cue at him again, he put up his machete to defend himself and block the cue from Faith. The accused further says that he then hit Faith with his machete in order to defend himself as he realised Faith was out to injure him as Faith had done already.
15. The accused then says that at that time Atonio arrived and threw a rock at him. He dodged downwards but the rock hit the top of his head injuring his head and causing it to bleed. Atonio then hit him on his forehead above his right eye with another rock injuring his forehead and causing it to bleed. Atonio then jumped at him and they struggled and both of them fell to the ground. The accused says at that time he was seriously scared for his life as Atonio had already hit him twice with rocks. He wanted to get Atonio off him and so he hit Atonio twice with the machete. After he hit Atonio with the machete Atonio got off him. The accused says he then went home bleeding heavily from his head and face injuries.
16. I must say that the accused’s version of the facts seems implausible and does not inspire confidence. If the accused was truly acting in defence of himself and was seriously scared for his life as he claims, I would expect him to hold on to his plea of not guilty and defend the charges against him. However, after a lengthy delay he vacated his not guilty plea in the last minute and entered a guilty plea. The number of injuries sustained by each of the victims and the nature of those injuries also do not inspire confidence in what the accused says that he was acting in defence of himself and that he was seriously scared for his life. The nature and number of injuries to the victims suggest that they were blatantly being attacked by the accused rather than the accused acting in defence of himself out of fear for his life. What the accused says about bleeding heavily from his head and face injuries when he left the scene of this incident is also unconvincing in the absence of any medical or other independent evidence to support it.
17. Even though neither party called oral testimony on the disputed parts of the summary of facts, I have decided to accept the version of the facts given by the prosecution and not to accept the accused’s version of the facts. I have also noticed from the pre-sentence report that the account given by the accused to the probation service of what happened is quite different from what he is now telling the Court. There is no mention in what the accused told the probation service that he was acting in self defence or that he was seriously scared for his life. All he says is that he is remorseful and will not commit any more crime. There is also no mention in what the accused told the probation service about bleeding heavily from any head and face injuries when he left this incident to go home.

The victims

(a) Atonio Toma

18. The victim Atonio, as shown from his victim impact report, has been affected physically, psychologically, and financially as a result of this incident. The use of his hands has been significantly reduced and restricted. He can no longer carry out his normal chores of making food for his parents and attending to his vegetables garden of short peas and cucumbers for a long time without feeling his hands go numb and sometimes painful. He also feels pain in his hands when he puts on a shirt. The scars on his hands, chest, and cheek are permanent and visible.
19. Psychologically, every time Atonio feels pain in his hands reminds him of this incident and he gets angry and frustrated because of it. He also feels sad, angry, and frustrated because he can no longer carry out his responsibilities to his parents and wife as he used to. The scars on Atonio’s hands, chest and cheek also make him feel embarrassed of his body and he is always cautious and paranoid about what people might say about his scars. He no longer wears short sleeve shirts or t-shirts; he now wears long sleeve shirts and t-shirts to cover up his scars. He is self-conscious about how his scars look and about what people might say about it. He also no longer goes to the church youth of his village as members of the youth group would playfully tease him about his scars which make him very sad and embarrassed.
20. Atonio has also been affected financially as a result of this accident. He is now not as productive as before because he can no longer work on his vegetable garden as he used to. As a result, production from his vegetable garden has gone down and the weekly income from his vegetables garden has decreased quite significantly. This has not only affected Atonio but his parents and wife who depend on him and are therefore other victims of this incident.

(b) Faith Toma

21. The victim Faith has also been physically and psychologically affected as a result of this incident. He is now unable to eat solid food such as taro, chicken, and un-minced meat. When he tries to eat solid food he feels pain in his jaw and has to stop. He also now has a scar on his face.
22. Faith is generally a shy person. After this incident he has become even shier because of the scar on his face. He gets angry easily when someone teases or even playfully teases him about his scar.

The accused

23. As shown from the pre-sentence report, the accused Motoi has a wife and two children. He left school at Year 12. He has no formal employment but supports his family by cultivating their plantation and doing daily errands.
24. Motoi is a first offender. The character testimonials from his father and wife show him to be a responsible, dependable, hardworking, and loving person. The character testimonial from the pulenuu of Motoi’s village is to the same effect but it also says that Motoi’s weakness is alcohol. The character testimonial dated 30 June 2015 from the pastor of the accused’s church states that the accused has only been attending church for about one and a half years. That would be from about the beginning of 2014 to now. The pastor’s testimonial relates only to the pastor’s observations of the accused during that time. Such testimonial therefore does not relate to any good character of the accused prior to the commission of this offence on 28 May 2013.
25. On the prosecution’s version of the facts which I find to be credible, I do not accept the submission of counsel for the accused that the accused was provoked by the victims. It is clear from the prosecution’s summary of facts that it is Motoi who was arrogant and highly provocative. It was him who provoked the victims who were enjoying themselves with their friends. Not only did Motoi swear in a loud voice inside the billiard parlor but he also slashed the billiard table three times with his machete. He had to be restrained by his friend who was with him. When he was taken outside, he continued to swear several times in a loud voice. When Atonio came out of the billiard parlor and told Motoi to keep his voice down and stop swearing, Motoi swore at Atonio. Thus, if anyone was being provocative and arrogant it was not Atonio or Faith but the accused.
26. I also do not accept that the accused is remorseful as submitted by his counsel. The accused has never apologised to the victims or their family since the commission of these offences on 28 May 2013. There is also a new charge of causing grievous bodily pending before the Court against the accused. Those are not signs of any remorse. Likewise, the much belated change of plea by the accused from not guilty to guilty does not inspire confidence about the accused being truly remorseful.

The aggravating features relating to the offending.

27. There are a number of aggravating features relating to this offending. As I propose to apply the totality principle of sentencing to both the attempted murder and grievous bodily harm charges, I will consider together the aggravating features relating to the offending in respect of both charges.

(a) Use of violence and a weapon

28. This offending involved a high degree of violence and the use of a weapon, namely, a machete by the accused to attack and inflict harm on the victims Atonio and Faith. This is an aggravating feature relating to the offending.

(b) Extent of the injuries to the victims

29. The number of injuries suffered by the victims and the significance and seriousness of those injuries are also an aggravating feature relating to the offending. The injuries to the jaw, mouth, and teeth of the victim Faith which are vital parts of the body also aggravate this offending.

(c) Vulnerability

30. The victim Atonio was in a vulnerable position at the time he was attacked by the accused. Just as Atonio threw away the rocks he had picked up and was therefore unarmed, the accused slashed him with the machete. When the unarmed and defenseless Atonio fell to the ground with the accused on top of him, the accused continued to strike Atonio with the machete. The victim Faith was also vulnerable at the time that the accused attacked him with the machete because he was only armed with a billiard cue. The vulnerability of both victims is also an aggravating feature to this offending.

(d) Premeditation

31. Even though there is no evidence of pre-planning in this case, I accept that there was some degree of premeditation because of the arrogant and provocative behaviour of the accused inside the billiard parlor and then his persistent attack with his machete on Atonio and then on Faith. This is another aggravating feature relating to this offending.

(e) Provocative behaviour of accused

32. The accused’s behaviour on the night of this incident was arrogant and highly provocative. When the billiard parlor was to close for the night, the accused started swearing loudly. When told by the victims to stop swearing, the accused picked up his machete and slashed the billiard table three times causing damage to the billiard table, billiard balls, and a cue stick. When the accused was taken outside of the billiard parlor he continued swearing in a loud voice. When told by Atonio to stop swearing the accused swore at Atonio. All of this is an aggravating feature relating to the offending.

(f) Impact of the offending

33. The impact of this offending on the victims Atonio and Faith, as already set out, is also an aggravating feature relating to this offending. Likewise, the impact of this offending on the parents and wife of Atonio who are dependent on him and are therefore also victims of this offending.

The mitigating features relating to the accused as offender

(a) Previous good character

34. The evidence of previous good character provided for the accused by his father, wife, and the pulenuu of his village is a mitigating feature relating to the accused. However, what the pulenuu says about alcohol being the accused’s weakness is also to be noted.

(b) Guilty plea

35. The accused’s belated guilty plea to the charges against him entitles him to some credit though it will be limited.

Discussion

36. Applying the totality principle and having regard to the aggravating features relating to the offending, I will take 12 years as the starting point for sentence. I will deduct 6 months for previous good character. That leaves 11 ½ years. I will deduct 15% or 1 ½ years for the guilty plea. That leaves 10 years.

Result

37. On the charge of attempted murder the accused is convicted and sentenced to 10 years imprisonment.
38. On the charge of causing grievous bodily harm the accused is convicted and sentenced to 4 years imprisonment.
39. Both sentences to be concurrent. Any time the accused has already spent in custody pending the outcome of this matter is to be further deducted from that sentence.

CHIEF JUSTICE