Police v Fotualii [2016] WSSC 89 (31 May 2016)

SUPREME COURT OF SAMOA
Police v Fotualii [2016] WSSC 89

Case name:	Police v Fotualii
Citation:	[2016] WSSC 89
Decision date:	31 May 2016
Parties:	POLICE v NIFAE LEAUSA FOTUALII, male of Faleapuna (Defendant)
Hearing date(s):
File number(s):	S833/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Tuatagaloa
On appeal from:
Order:	The accused is convicted and sentenced to 5 years’ and 11 months imprisonment. Time spent in custody to be deducted.
Representation:	F Ioane for Prosecution C Vaai for the Defendant
Catchwords:	Attempted murder – maximum penalty life imprisonment – psychiatric assessment sought – machete attack – deep cuts sustained by victim (long-term impact on victim)
Words and phrases:	Defendant been in custody for 15 months – defendant has had numerous counsel representing – concerns over defendant’s mental wellbeing – claim actions could be due to brain injury defendant underwent surgery for
Legislation cited:
Cases cited:
Summary of decision:

SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

NIFAE LEAUSA FOTUALII, male of Faleapuna
Defendant

Counsel:
F Ioane for Prosecution
C Vaai for the Defendant

Date: 31 May 2016

SENTENCING OF JUSTICE TUATAGALOA

1. The accused is to be sentenced on one count of attempting to murder Ariota Anoia, a male of Faleapuna on 16 February 2015. The offence carries the maximum penalty of life imprisonment.
2. Before I proceed to sentencing, it is appropriate that I set out the history of this matter in Court as it has been in the Court system for more than a year until sentencing.

History:

3. The accused has been in custody since 18 February 2015. He has been represented by five (5) different counsels through legal aid and the present counsel, Mr Charlie Vaai, is the sixth (6^th) counsel to represent the accused.
4. On 16 March 2015, the accused through his first counsel entered a ‘not guilty’ plea. An application for bail filed on 24 March 2015 was refused by Justice Vaai on 24 April 2015. On 7 May 2015 the ‘not guilty’ was vacated and a ‘guilty’ plea was entered. From there on the accused original counsel withdrew and various other counsels were instructed through legal aid and throughout this whole time also withdrew.
5. Several adjournments were sought by various counsels for the accused to be mentally assessed but none was ever done. Counsel before Mr Vaai filed an application dated 17 February 2016 to withdraw the accused ‘guilty’ plea entered on 7 May 2015 and to have it substituted with ‘not guilty’ on the basis of insanity. This application was filed without the accused having been mentally assessed by a qualified medical practitioner. Mr Vaai who took over on 11 March 2016 as counsel sought further adjournments to obtain full instructions and to have the accused referred for a psychiatric assessment by Dr Ian Parkin a psychiatrist with the National Hospital. This was done and a report was obtained from Dr Parkin on 21 March 2016.
6. A report also from the Alcohol and Drugs Court Clinician, Ms Moana Solomona, who the accused was also referred to by Mr Vaai for her assessment, was also obtained on 14 April 2016. Ms Solomona apart from her degree in Alcohol and Drug Studies also has a Postgraduate Certificate in Health Science (on co-existing disorder and mental health) and a Postgraduate Certificate in Forensic Psychiatric Care.
7. The accused medical notes from New Zealand on an operation he underwent on his head was referred by Mr Vaai to a local doctor for an opinion as to whether such injuries sustained in New Zealand could have affected the accused brain. An opinion from whomever the local doctor Mr Vaai referred the notes to was never received.
8. On 22 April 2016, Mr Vaai asked the Court to have the application to withdraw guilty plea filed on 17 February 2016 withdrawn and the guilty plea to remain.
9. The accused was asked in Court whether he confirms the application made by counsel and what that means that his guilty plea to the charge of attempted murder will be maintained and the accused confirmed.
10. It was then adjourned to 26 April 2016 for Mr Vaai to file application to formally withdraw the application to withdraw the guilty plea. Mr Vaai later on 22 April 2016 filed a statutory declaration of the accused (in Samoan) confirming his guilty plea to the charge of attempted murder.
11. On 26 April 2016 when the matter was called to set sentencing date, the accused informed the Court that he thought he was pleading guilty to grievous bodily harm instead of attempted murder. A charge of grievous bodily harm was never filed by the prosecution. The only charge filed was attempted murder. Mr Vaai asked for the matter to be stood down so he can converse with the accused and the matter was further adjourned to 28 April 2016.
12. The matter was called back in Court on 28 April 2016 and the matter was fully explained to the accused who confirmed maintaining his guilty plea to the charge of attempted murder and not to grievous bodily harm. Mr Vaai sought a five weeks adjournment before sentencing. Sentencing was adjourned to 31 May 2016.
13. The accused has been in custody throughout this whole time for over a year.

The offending:

14. The summary of facts is confirmed by the accused which basically is:
    1. On 16 February 2015, the victim who is the brother-in-law of the accused was fixing a car stereo on a bus when the accused turned up on the bus with a sling-on bag. The victim asked the accused how he was and the accused responded that he was just attending to some stuff and then pulled out a machete from the bag and swung at the victim.
    2. The first swing slashed the upper left arm of the victim and left side of his neck. The second swing slashed at the victim’s left hand.
    3. The victim and the accused wrestled to which the victim sustained other wounds on the right wrist and a superficial wound to his left nostril.
15. The accused in the pre-sentence report (PSR) said that he went on the bus which his brother-in-law was fixing with the intention of having a beer. When he got on the bus and was walking to the back the victim threw a bottle of beer at him and that’s why he pulled the machete and swung at him. The accused said that the victim threw another bottle at him and he again struck at him with the machete.
16. The summary of facts implies no provocation but the pre-sentence report of what the accused told probation is, there was provocation. There is merit with what the accused said in the pre-sentence report because no one would do something like this without a reason unless that person is totally insane which the accused is not. This is not to say that what the accused did of lashing out using a machete is justified.

The accused:

17. The accused is 47 years’ old, married with seven children. He completed his secondary schooling in New Zealand and had worked in New Zealand for five years before returning. He was involved in an incident in Samoa to which he was referred to New Zealand whereby he said he underwent a head injury operation in 2003. He claims that he suffered from anger issues as a result of the operation.
18. His mother says in pre-sentence report that the accused is a trustworthy and reliable son and suspected that the head injury he suffered may have something to do with his anger issues. The accused Bishop of the Mormon Church he attends pleads for the Court to take into account the many good things the accused has done for his family, his hard work on the plantation and cattle farm to provide for his young family and mother. The Bishop said that the accused unaccepted decisions and negative reactions may have something to do with the brain injury that he said to have suffered and pleads for the Court to consider this when passing sentence.
19. As a result of his offending the accused, his wife and children have been banished from the village of Faleapuna where he was born and grew up in.

The victim:

20. The victim is a 46 year old and is married to the accused wife’s sister. He suffered the following injuries from the accused’s attack:
    1. Straight edge wound (5x12) across the left upper neck, bleeding profusely;
    2. Straight edge wound (5x1) across the lateral left arm close to the shoulder, oozing blood;
    3. Wound (4x12) just proximal to the right wrist dorsal, also oozing blood;
    4. Superficial wound just lateral to the left nostril.
21. The victim was also said to need immediate resuscitation when arrived at hospital to stabilize his condition.
22. The pre-sentence report (dated 24 June2015) confirmed from the victim that there has not been an apology by either the accused or his family.
23. There is no victim impact report (VIR) but the prosecution refers in their sentencing submissions that the victim can no longer fully or 100% carry out any mechanical work due to the injuries he sustained on his left arm and hand.

The Defense Counsel Submissions:

24. Mr Vaai’s submissions focus on the accused suffering from a mental illness. Mr Vaai asked the court to consider a lesser penalty by way of s.112 of the Criminal Procedure Act 1972 on the basis of the accused alleged mental illness.
25. The problem with Mr Vaai’s submission is that Dr Ian Parkins in paragraph [18] above did not find that the accused suffers from any mental illness or psychosis. Dr Parkin further in his report said that he had no way of verifying that the accused may have suffered from any brain injury that he claims from the information he had at hand.
26. Dr Ian Parkin’s on page (2):

“There was no abnormality in effect, mood or thoughts and in particular there was no evidence of psychosis.”

Dr Parkin’s opinion is:

“From the information that is available it would appear that Nifae has been involved in fights and has had anger management problems for some time. If indeed he had 12 hour loss of consciousness from a head injury, then that would lead to a degree of brain injury. This could then lead to difficulties in impulse control or worsening of difficulties that already exist. I have no way of verifying any of this from the information at hand.”(my emphasis)

27. Ms Moana Solomona (ADC Clinician) whom the accused was also referred to said, that the accused, “appeared anxious during the interview however showed good insight into the seriousness of his charge and appeared remorseful. His mood, memory and thinking all appeared normal, and he was able to understand and answer all questions regarding his current legal matters.”
28. Ms Solomona found that the accused was taking medication of Lorazepam prescribed by Dr George Tuitama who heads the Mental Health Unit at the National Hospital. To Ms Solomona’s knowledge, Lorazepam is commonly used to treat anxiety disorders. Ms Solomona also said that the accused does not suffer from any substance abuse disorder, therefore, any mood swings he may have is not the result of any substance abuse.
29. From observations in Court of the number of times the accused has appeared before me, the accused fully understands when asked, is coherent and very clear with his responses.
30. On the basis of Dr Parkin’s assessment, ADC Clinician’s report and my observation of the accused in court I am of the view that the accused does not suffer from a mental illness but may have some anxiety issues.

The Prosecution Submissions:

31. The Prosecution refers to various sentencing decisions of the Court where a machete was used. These sentencing decisions range from 8 -12 years starting point depending on the circumstances of each case and the severity of the injuries sustained.
32. The Prosecution submits for a starting point of 10 years based on the following aggravating factors:
    1. Use of a lethal weapon, i.e., a machete;
    2. Injuries sustained the most serious is the injury to the neck;
    3. Pre-meditation on the part of the accused;
    4. Lack of remorse;
    5. The attack was unprovoked;
    6. Savagery of the offending;
    7. Impact of the offending on the victim.

The aggravating factors:

33. There are no aggravating factors personal to the accused as offender. He is a first offender.
34. However I accept the following as aggravating features of his offending, these are:
    1. The use of a very dangerous weapon, namely a machete;
    2. The serious injuries sustained by the victim especially on the left side of his neck which could have been fatal and cost the victim his life;
    3. The viciousness of the attack in that the accused not only slashed at the victim once but twice, and did not let go of the machete when wrestled with the victim.
    4. If there was provocation it was minimal but the attack was way out of proportion.
    5. The attack seemed pre-meditated. The accused took a machete with him on the bus in a sling-on bag. The question is, why would he take a machete with him if his intention as he said in the pre-sentence report was to have a beer with the victim on the bus?

The mitigating features:

35. The mitigating features of the offending are:
36. The accused is a first offender. There is nothing suggesting that the accused is not of good character prior to the commission of the offence.
    1. Although he pleaded not guilty in March 2015 to the offence when first appeared in Court he vacated his not guilty plea to one of guilty in May 2015. Even though part of the delay for sentencing was because the accused tried to vacate his guilty plea back to not guilty, the accused at the end maintained his plea of guilty. For this a 25% discount instead of 1/3 towards sentencing will be given by the Court.

The decision:

37. The sentencing decisions referred to by the prosecution in their sentencing memorandum where a machete was used range from 8 – 12 years starting point depending on the circumstances of each case and the severity of the injuries sustained.
38. In the circumstances of this offending, I adopt a starting point of 10 years. For his impeccable good record I deduct 2 years. I further deduct 12 months for any anxiety disorders he may have which leaves 7 years. I give 25% discount for his change of plea to guilty earlier on in May 2015 which is 23 months. This leaves 5 years and 11 months.
39. The accused is convicted and sentenced to 5 years’ and 11 months imprisonment. The time the accused has been held in custody over this matter of more than a year is to be deducted from his term of imprisonment.
    

JUSTICE TUATAGALOA