Police v Reupena [2015] WSSC 56 (9 June 2015)

SUPREME COURT OF SAMOA
Police v Reupena [2015] WSSC 56

Case name:	Police v Reupena
Citation:	[2015] WSSC 56
Decision date:	9 June 2015
Parties:	POLICE (prosecution) AND TAGIALAO REUPENA (accused)
Hearing date(s):
File number(s):	S1170/15, S1171/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	The accused is sentenced to 2½ years imprisonment on each of the two charges against him. Both sentences to be concurrent. Any time the accused has been remanded in custody is to be further deducted from that sentence
Representation:	L Su’a-Mailo for prosecution D Roma for accused
Catchwords:	Grievous bodily harm – maximum penalty – early guilty plea – aggravating and mitigating features – provocation – previous good character –vulnerability of victims – remorse- sentence
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

File No: S1170/15, S1171/15

BETWEEN

P O L I C E
Prosecution

A N D

TAGIALAO REUPENA male of Leauvaa and Neiafu, Savaii.
Accused

Counsel:
L Su’a-Mailo for prosecution
D Roma for accused

Sentence: 9 June 2015

S E N T E N C E

The charges

1. The accused Tagialao Reupena appears for sentence on two charges of with intent to cause grievous bodily harm did wound the victim, contrary to s.118 (1) of the Crimes Act 2013, each of which carries a maximum penalty of 10 years imprisonment. To both charges the accused pleaded guilty at the earliest opportunity.

The offending

2. On Saturday morning 21 March 2015 at Leauvaa-uta, the first victim Fetoai Iosefa and the second victim Lafaele Iosefa who are brothers beat up the accused’s father. As a result, the accused’s father was taken to the hospital for treatment of his injuries. Fetoai is 22 years old and Lafaele is 20 years old. The accused learnt about this incident from his wife later the same day. It made him angry at the victims who are his cousins.
3. In the evening of the same day, the matais and members of extended family of the accused and the victims gathered for a reconciliation between the accused’s father and the victims. At that time, the accused was at a neighbouring house waiting for the reconciliation to be effected. He became angry with the reconciliation because the matais of his family did not ban the victims from the family. He then picked up a machete, entered the house where his extended family was gathering, and attacked the victims as they were standing up.
4. The accused struck the victim Fetoai with the machete on the right shoulder causing Fetoai to fall on the floor of the house. The accused then struck the victim Lafaele with the machete but Lafaele put up his left hand to fend off the blow thus injuring his left wrist.
5. The accused then ran away and hid the blood-stained machete at a banana patch. He told the probation service that he knew that what he had done was wrong and he turned himself in to the police the same evening. He was kept in custody by the police.
6. On the other hand, the victims were brought to the Tupua Tamasese Meaole Hospital for treatment. The medical report on Fetoai by the doctor who treated the victims at the hospital shows that Fetoai sustained a laceration on his right shoulder measuring 30cm x 10cm which required stitches. He was discharged from the hospital on the fourth day with oral medication and painkillers (analgesics). The medical report on Lafaele shows that he sustained a deep cut to the back of his left wrist (dorsal aspect of the left hand wrist). Bones of the wrist (carpal bones) were seen through this injury and there was active bleeding from that injury. There was also a deep cut on the thumb joint. Lafaele was discharged from the hospital on the fourth day but was required to attend regularly for follow up observation.

The accused

7. The accused is 25 years old. He has a wife and young child. He left school at Year 11. The accused and the victims are cousins. Due to this incident, the accused and his parents have been banished from their village of Leauvaa. The accused is a first offender and the testimonials from his parents, the priest of his church, the pulenuu of his village and the member of Parliament for his constituency all show that he had been a person of good character prior to the commission of these offences.
8. Counsel for the accused in her plea in mitigation also told the Court that the victims have forgiven the accused and that the parents of the accused have reconciled with the victims. She also told the Court that the accused is truly remorseful for his actions.

Aggravating features relating to the offending

(a) Use of a machete

9. The use by the accused of a machete to attack the victims is an aggravating feature relating to the offending.

(b) Extent of injuries to the victims

10. The extent of the injuries to the victims which necessitated their being hospitalised for about four days is another aggravating feature relating to the offending. While the victim Fetoai was given oral medication and painkillers upon discharge from the hospital, the victim Lafaele was required to attend regularly to the hospital for follow up observation.

(c) Number of victims

11. The fact that there were two victims involved in this offending is an aggravating feature relating to the offending.

(d) Vulnerability of victims

12. The vulnerability of the victims in that this was a surprise attack on them and they were unarmed is also an aggravating feature relating to the offending.

Mitigating feature relating to the offending

Provocation

13. The beating inflicted on the accused’s father by the victims coupled with the reconciliation by the matais of the family which did not ban the victims from the family, provoked the accused. It appears to me, however, that the real provocation to the accused came from the victims beating up the accused’s father. This is a mitigating feature relating to the offending.

Mitigating features relating to the accused as offender

(a) Remorse

14. The fact that the accused turned himself in to the police on the same evening of this incident and his guilty plea at the earliest opportunity are signs of remorse which is a mitigating feature relating to the accused as offender.

(b) Forgiveness by the victims

15. The Courts have been cautious about treating forgiveness of an accused by a victim as a mitigating feature relating to the accused as offender and have often given limited or no weight to such forgiveness as a mitigating feature: see, for example, Police v Toomata [2014] WSSC 2; Police v Saveaalii [2008] WSSC 7; Police v Taueu [2007] WSSC 93. In this case, I have decided not to give weight to the forgiveness of the accused by the victims as a mitigating feature.

(c) Previous good character

16. The fact that the accused is a first offender and had been a person of good character prior to the commission of these offences is a mitigating feature relating to the accused as offender.

(d) Banishment

17. The banishment of the accused from his village is a penalty already imposed on the accused for this offending. This is to be taken into account as a mitigating feature relating to the accused as offender.

(e) Early guilty plea

18. The accused’s guilty plea to the charges against him at the earliest opportunity is an important mitigating feature relating to the accused as offender.

Discussion

19. Because there are two victims involved in this case and there are two charges of with intent to cause grievous bodily harm did wound each of the victims, I would have to apply the totality principle of sentencing. I would also have to take into account the sentencing principles of retribution deterrence, and accountability.
20. Having regard to the aggravating features and the mitigating feature of provocation relating to the offending, I will take 5½ years as the starting point for sentence. I will deduct 9 months for remorse and previous good character. That leaves 4 years and 9 months. For the banishment, I will deduct one year. That leaves 3 years and 9 months. I will then deduct 1/3 or 1 year and 3 months for the early guilty plea. That leaves 2 years and 6 months.

Result

21. The accused is sentenced to 2½ years imprisonment on each of the two charges against him. Both sentences to be concurrent. Any time for which the accused has been remanded in custody is to be further deducted from that sentence.

CHIEF JUSTICE SAPOLU