Police v Taumate [2016] WSSC 104 (6 July 2016)

SUPREME COURT OF SAMOA
Police v Taumate [2016] WSSC 104

Case name:	Police v Taumate
Citation:	[2016] WSSC 104
Decision date:	6 July 2016
Parties:	POLICE v JOSEPH TAUMATE and IOANE TOM (IOANE) both males of Taufusi.
Hearing date(s):	6 July 2016
File number(s):	S279/16, S425/16-S426/16
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The accused Joseph is convicted and sentenced to 2 years and 8 months imprisonment. - The accused Ioane is convicted and sentenced to 3 years imprisonment. - The time that each accused has already been in custody pending the outcome of this matter is to be further deducted from his sentence.
Representation:	L Sua-Mailo for prosecution Accused in person
Catchwords:	Sentence – grievous bodily harm with intent – maximum penalty – early guilty pleas – aggravating features – mitigating features – starting point for sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.118 (1)
Cases cited:	Police v Wilson and Mafi [2016] WSSC 83
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs. S279/16, S425/16-S426/16

BETWEEN

P O L I C E
Prosecution

A N D

JOSEPH TAUMATE and IOANE TOM (IOANE) both males of Taufusi.
Accused

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 6 July 2016

S E N T E N C E

The charges

1. The accused Joseph Taumate (Joseph) a 17 year old male of Taufusi and Ioane Tom (Ioane) a 16 year old male also of Taufusi appear for sentence on a joint charge of causing grievous bodily harm with intent, contrary to s.118 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment. To the charge both accused pleaded guilty at the earliest opportunity.
2. The accused had been jointly charged with other co-accused who have already been sentenced: Police v Wilson and Mafi [2016] WSSC 83. The victim is a 37 year old national residing in Samoa and attending the APTC at Le Papaigalagala.

The offending

3. According to the prosecution’s summary of facts, on 6 February 2016 the victim and three friends went out to the RSA nightclub for a drink. When the RSA nightclub was about to close around midnight the victim went outside where he met one of the accused’s co-accused named Ashley. Having spoken to Ashley, the victim and Ashley exchanged words which led to Ashley punching the victim. As the victim was returning inside the RSA nightclub, one of his friends noticed that the victim had been punched in the face. The victim and his friends then left the RSA and crossed to the opposite side of the road to wait for a taxi. According to Ioane, when a taxi arrived and the victim and his friends got into it, one of the victim’s friends swore at him. He then punched that friend of the victim. As a result, the victim and his friends got out of the taxi. Joseph and the other co-accused then joined in and a fight ensued between Ioane, Joseph and their co-accused and the victim and his friends. Joseph, Ioane and their co-accused then punched the victim’s face and other parts of his body. The victim’s friends were able to escape leaving the victim behind. Joseph, Ioane and their co-accused continued to beat up the victim. When the victim was able to escape and ran away, the co-accused Ashley ran after the victim and caught him. One of the co-accused named Ulagia then put his hands around the victim from behind while Joseph, Ioane and Ashley continued to throw punches at the victim’s face. When the victim fell down, the co-accused named Matini threw a large beer bottle at his face twice which hit his face while still lying down. The co-accused Ulagia then continued to kick the victim on the face while still lying down and this caused blood to burst from the victim’s face. The co-accused Barry also kicked the victim on the face while he was still lying down unconscious. Ioane arrived and pulled up the victim and punched him on the face. When the victim was motionless, snoring, and bleeding profusely, Joseph, Ioane and their co-accused ran off.
4. The victim was taken to the hospital the same night and was admitted for a few days. In addition to his unconscious condition, the following injuries were found on his body from medical examination: soft tissue injuries to the scalp and face, ruptured eye-globe repaired the same night at the operating theatre, small fractures on the nasal bones on the right, and likely aspiration pneumonities.
5. It appears from the summary of facts and the pre-sentence reports that this incident started off as a first fight between the victim and his friends and Joseph, Ioane and their co-accused when one of the victim’s friends swore at Ioane. The victim’s friends were able to escape leaving the unfortunate victim behind. Not only were the victim and his friends under the influence of alcohol but also Joseph, Ioane and their co-accused who had drinking two large bottles of vodka before they came and drank at the RSA nightclub.

The accused

6. The accused Joseph had an average level of education having left school at Year 11 when he was expelled for fighting. He then stayed home and helped out with his father’s work as an electrician. He drinks and smokes. Joseph’s father told the probation service that his son is a hard worker. Joseph is also a first offender.
7. The accused Ioane also had an average level of education having left school at Year 10. After he left school he stayed home doing family chores. He has had no formal employment. He drinks and smokes. Ioane’s mother told the probation service that her son is reliable and obedient. However, on 2 April 2015 Ioane was convicted of burglary, theft, and causing intentional damage and was sentenced to 12 months supervision. He was still serving this sentence when he committed this offence.

Aggravating features relating to the offending

(a) Degree of violence involved

8. This offending involved a high degree of violence. It involved many punches and kicks delivered to the victim’s body especially the facial area. The attack on the victim was also persistent. When the victim ran off one of the co-accused Ashley ran after him and stopped him and the other assailants continued to attack the victim.

(b) Injuries to the victim

9. The injuries to the victim including his unconsciousness are another aggravating feature relating to this offending.

(c) Attacking the head

10. A number of punches and kicks were delivered to the victim’s head and facial area.

(d) Vulnerability of the victim

11. After the victim’s friends were able to escape, the victim was by himself and clearly outnumbered by the accused and their co-accused who continued to beat him up. Even when the victim was lying on the ground defenceless, the accused and their co-accused continued to attack him delivering punches and kicks to his face, head and other parts of his body.

(e) Multiple attackers

12. This was not an attack by one individual against another individual but a joint and concerted attack by several men on an individual.

(f) Impact of offending

13. There is no victim impact report but the summary of facts shows that as a result of the injuries suffered by the victim he was hospitalised for a few days. The victim also had to undergo surgery to repair his ruptured eye-globe.

(g) Influence of alcohol

14. Influence of alcohol on the accused as suggested by the prosecution is not an aggravating feature relating to the offending.

Mitigating features relating to the offending

15. The accused Ioane said that what started this incident was when one of the victim’s friends swore at him. However, being incensed by the actions of the victim or one of his friends is not enough. It has to be serious provocation which was an operative cause of the violence inflicted by the offender and which remained an operative cause throughout the commission of the offence: R v Taueki [2005] NZCA 174, para [32]. In the context of the offending that occurred, I would not consider the swearing by one of the victim’s friends at Ioane as sufficient to be a mitigating feature of the offending by Ioane.

Aggravating features relating to the accused as offenders

16. There is no aggravating feature relating to the accused Joseph as offender. But the previous convictions of the accused Ioane in 2015 for which he was still serving a sentence of supervision when he committed the present offence is an aggravating feature relating to him as offender.

Mitigating features relating to the accused as offenders

(a) Young age

17. The young age of both accused is a mitigating feature relating to them as offenders.

(b) Early guilty pleas

18. The early guilty pleas by the accused to the charge against them is a significant mitigating feature relating to each of them as offender.

Discussion

19. Having regard to the maximum penalty of 10 years imprisonment for causing grievous bodily harm, the aggravating features relating to the offending, and the degree of involvement of these accused in the offending, I will take 5 years as the starting point for sentence for both accused.
20. For the accused Joseph, I will deduct 12 months for his young age. That leaves 4 years. I will deduct a further 1/3 or 1 year and 4 months for his early guilty plea. That leaves 2 years and 8 months. The end sentence is therefore 2 years and 8 months imprisonment.
21. For the accused Ioane, I will increase the starting point for sentence by 3 months because of his previous convictions for which he was still serving a sentence of supervision when he committed the present offence. That increases the starting point to 5 years and 3 months. I will then deduct 10 months for his young age. That leaves 4 years and 5 months. I will further deduct 1/3 or 1 year and 5 months for his early guilty plea. That leaves 3 years. The end sentence is therefore 3 years imprisonment.

Result

22. The accused Joseph is convicted and sentenced to 2 years and 8 months imprisonment.
23. The accused Ioane is convicted and sentenced to 3 years imprisonment.
24. The time that each accused has already been in custody pending the outcome of this matter is to be further deducted from his sentence.

CHIEF JUSTICE