Police v Bragovits [2016] WSSC 147 (12 August 2016)

SUPREME COURT OF SAMOA
Police v Bragovits [2016] WSSC 147

Case name:	Police v Bragovits
Citation:	[2016] WSSC 147
Decision date:	12 August 2016
Parties:	POLICE and USO TAUMATA BRAGOVITS a.k.a AUVALE TAUMATA, male of Faleula (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to 11 years and 9 months’ imprisonment for the offence of attempted murder. On the charge of armed with a dangerous weapon, the defendant is convicted and discharged.
Representation:	A Tumua for Prosecution P Mulitalo for the Defendant
Catchwords:	Attempted murder – armed with a dangerous weapon – brutal attack with machete – breach of protection order- victim and defendant were in a relationship –domestic violence – victim traumatized – victim’s child witnessed attack – pre-meditation – previous convictions – banished from village – ifoga – early guilty plea
Words and phrases:
Legislation cited:	Crimes Act 2013 s. 104 Police Offences Ordinance 1961 s. 25
Cases cited:	Police v Talapelo Soi (12 November 2014)
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

USO TAUMATA BRAGOVITS a.k.a AUVALE TAUMATA, male of Faleula
Defendant

Counsel:
A Tumua for Prosecution
P Mulitalo for the Defendant

Sentence: 12 August 2016

SENTENCING OF JUSTICE TUATAGALOA

The charges:

1. The defendant is to be sentenced today on the charges of attempted murder contrary to s. 104 of the Crimes Act 2013 and armed with a dangerous weapon, a machete, contrary to s. 25 of the Police Offences Ordinance 1961.
2. The charge of attempted murder is maximum life imprisonment and armed with a dangerous weapon is maximum 12 months’ imprisonment. The circumstances of this offending warrants a custodial sentence.

The summary of facts:

3. The summary of facts by the prosecution was read out and confirmed by the defendant. The summary of facts provides the background to this matter which culminated in the offending of attempted murder.
4. The victim and the defendant prior to this offending were in a relationship. From the summary of facts the victim ended the relationship. It was then that the defendant exhibited violent behavior towards the victim which caused the victim to fear for her safety. The victim, as a result, reported the matter to the police and took out a protection order against the defendant. The charges of unlawful entry and threatening words were also filed against the defendant prior to the offending of attempted murder.
5. The summary of facts for this offending are:
   1. On Thursday, 22 October the victim, her 14 year old son and young niece were on their way to early morning mass at the Catholic Church at Faleula when the defendant attacked the victim with a machete.
   2. The defendant first struck at the victim which hit her at the back of the neck, splitting her right ear and a cut extending to the right side of her face.
   100. The victim ran away from the defendant towards the church but the defendant caught up with her and struck at her the second time which hit her on her upper back.
   4. The victim fell down and the defendant struck at her the third time which again hit her on her back.

The pre-sentence report: (PSR)

6. The defendant told probation in the pre-sentence report that he, with the village aumaga (untitled men) were cutting grass in front of the church when the victim with two other ladies walked past. He called out to the victim that he wanted to talk to her but the victim swore at him which he said humiliated him in front of the other men. He was furious with the victim and thus the reason he did what he did. He said in the pre-sentence report that he was still drunk from the night before.
7. I do not accept the version of events related by the defendant in the pre-sentence report. What he did to the victim is way out of proportion. As far as the court is concerned, the defendant is trying to find excuses for his ghastly and cowardly behavior.

The defendant:

8. The defendant is 41 years’ old. He is said in the pre-sentence report to be married with seven children. His wife and children still live in New Zealand.
9. The defendant had a good education up to University level and had good employment in New Zealand prior to his moving back to Samoa in 2001 when he was accepted in to the Methodist Church Theological College at Piula but was expelled in 2003 from drinking alcohol.
10. The defendant said in the pre-sentence report that he was in a de-facto relationship with the victim but they were keeping it secretly. I also do not accept this because if he was in a de-facto relationship with the victim living in the village, everyone in the village would know about it. De-facto or no de-facto relationship with the victim does not give him the right to do what he did.

The victim:

11. The victim is 40 years’ old from the same village of Faleula as the defendant. The victim has two young children, one of them is her 14 year old son who was present and witnessed the attack by the defendant.
12. The victim told probation that since the attack she no longer feels safe. She no longer can be alone or be on her own as she thinks that the defendant would again attack her.
13. The victim is said to have scars on her back and face that will be with her for the rest of her life. The scars will always remind her of the savagery of the attack by the defendant.

The injuries:

14. The victim sustained cuts on the right side of her face, ear, neck, shoulder and back as follows:
    1. 4cm x 15 cm cut on the right side of her face, splitting her ear and injuring facial nerves and vessels;
    2. bones of her face were cut;
    100. a 40 cm cut on her upper back; and
    4. cut on her right middle finger.
15. The doctors sutured the wounds on her face and back, the bones were fixed with wires and her right middle finger was amputated.
16. The victim had facial muscle paralysis and hearing problems due to the injuries. She was admitted for recovery and post-operative care as well as consultations with a speech pathologist and social worker.

The submissions by the prosecution:

17. The prosecution on the circumstances of this offending and the sentences imposed by the Court on similar circumstances submitted for a starting point of 12 years’ imprisonment on the following aggravating factors:
    1. vulnerability of the victim;
    2. lethal weapon used;
    100. nature of the offending;
    4. pre-meditation;
    5. injuries sustained;
    6. impact on the victim;
    7. savagery of the offending;
    8. breach of the protection order; and
    9. sustained attack.

The submissions by defence:

18. Counsel for the defendant submitted that the attack by the defendant was not premeditated but was ‘coincidental’. Counsel in his submissions said the defendant attacked the victim when he met the victim on his way to the village ‘aumaga’ work and the victim was on her way to early morning church mass. Coincidentally, premeditated or not still does not justified the attack by the defendant.
19. Counsel submitted the following as mitigating factors:
    1. Defendant has been banished from the village of Faleula for life;
    2. The victim has caused false hope to defendant by promising to marry him.
    100. The defendant is not to be solely blamed but the victim also contributed to her own fate through her conduct to please her brothers and family.
20. I find Counsel’s mitigating factors (b) and (c) insulting and offensive. I did not expect that Counsel who is supposedly educated could still think like a cave-man. I find counsel’s submissions as male chauvinist and worrying and, women are not safe around men who share the same thoughts as that of the defence counsel.

Comments and Discussion:

21. Samoan men who act and behave like this towards women show that they do not have any respect and/or value the Samoan culture on the position and status of women in our society. As Samoans we are proud of our culture and heritage and yet Samoan men who act and behave like this towards women makes this aspect of our culture ‘o le i’o mata o le tama le teine’ pathetic.
22. Domestic violence against women is not particular to one society. In Samoa, despite numerous messages and education around this issue there are still ‘men’ who see and treat women as their property. Unless and until these men change their mindset, Samoan women (and any woman for that matter) will always be vulnerable and in danger.
23. As far as the Court is concerned, any man who causes any woman to fear for her life does not belong out in the society.
24. I reiterated what Justice Nelson’s said in Police v Talapelo Soi^[1] a similar case to the present that this is domestic violence at its worst.

The aggravating factors:

25. The victim was vulnerable at the time of the attack. She was taken by surprise when the defendant attacked her. She was no match to the defendant physically and especially so when the defendant was armed with a machete. The defendant struck at the victim not once but three times causing serious injuries to the victim who underwent surgery straight away. There was savagery in the attack by the defendant of the victim.
26. As I said earlier, I do not accept the version of events by the defendant (pre-sentence report) on the morning of the attack. I accept the summary of facts by the prosecution which said that the defendant came out of nowhere and attacked the victim. I therefore accept that the defendant planned the attack on the victim given the time he attacked her that is, early hours of the morning at 5am on their way to the early morning mass with only her young son and niece were. As I also said earlier, coincidentally or not, does not matter. The attack by the defendant was ghastly and unjustified.
27. The defendant prior to the attack was served with a protection order against him. Any protection order has the force of the law behind it and the Courts will not take lightly when such orders are violated by those whom the orders were issued against. The core of protection orders is to protect women and children who are more vulnerable from men like the defendant. The defendant showed no regard to the law when he approached and attacked the victim breaching the protection order.
28. Furthermore, the defendant despite the victim’s son crying and begging, him not to kill his mother continued to strike at the victim. Having this child witness the attack on his mother, the trauma he went through and would live with for the rest of his life is in my view an aggravating factor.

The mitigating factors:

29. The defendant has previous convictions although of different offending and not related to the offending he is to be sentenced, the effect of previous conviction means that he is not of good character prior to this offending. Because his prior offending is not related or similar to this offending, his status is neutral and I will not place any emphasis on his character.
30. The only mitigating factors personal to the defendant as offender are: (i) his early guilty plea and (ii) his family ifoga. I will take in to account the village fine imposed and paid by the defendant’s family and the banishment imposed by the village against the defendant.

Conclusion:

31. The sentencing decisions referred to by both Counsels range from 8-13 years starting points. Prosecution submits for 12 years and defence submitted for 10 years starting point. The sentencing decisions are only as guideline to the sentencing judge who is not bound by it. Each sentence is imposed according to the circumstances of the case.
32. I take the offending of attempted murder as the main offence and accordingly impose a starting point of 15 years; less 6 months for the village fine and banishment; a further 6 months for the ifoga; which leaves 14 years. I will give a 15% discount instead of 25% because defendant did not enter an early guilty plea when the matter was first called instead he entered a ‘not guilty’ plea and only changed to ‘guilty’ on the morning of the trial, some 7 months later. The 15% discount is 25 months or 2 years and 1 month. This leaves 11 years and 9 months.
33. The defendant is convicted and sentenced to 11 years and 9 months’ imprisonment for the offence of attempted murder.
34. I have taken the use of the machete as an aggravating factor of the main offence of attempted murder. Therefore, on the charge of armed with a dangerous weapon, the defendant is convicted and discharged.
35. The imprisonment term to less any time in custody.
    

JUSTICE TUATAGALOA

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^[1] Police v Talapelo Soi (12 November 2014)