Police v Moeva [2017] WSSC 93 (26 May 2017)

THE SUPREME COURT OF SAMOA
Police v Moeva [2017] WSSC 93

Case name:	Police v Moeva
Citation:	[2017] WSSC 93
Sentence date:	26 May 2017
Parties:	POLICE (Prosecution) v ISAAKO LEAFA MOEVA male of Afega and Malie Accused
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	I will sentence him separately for the two incidents, the end sentence being cumulative. Having regard to the aggravating features relating to the first offending, I take 2 ½ years imprisonment as a starting point for sentence. I will deduct 20% or 6 months for his early guilty plea. He is therefore convicted of causing grievous bodily harm and being armed and sentenced to 2 years imprisonment. Having regard to the aggravating features relating to the second offending, I take 2 ½ years imprisonment as a starting point for sentence. I will add 6 months for his earlier offending for which he has now been convicted and sentenced. I will deduct 20% or 7 months for his early guilty plea. He is convicted of causing grievous bodily harm and sentenced to 2 years and 5 months imprisonment. Both sentences of imprisonment to be served cumulatively so that he will serve in total 4 years and 5 months imprisonment. Time spent in custody to be taken away.
Representation:	F Ioane for Prosecution Accused in person
Catchwords:	causing serious bodily harm – being armed with a dangerous weapon
Words and phrases:
Legislation cited:	Crimes Act 2013 s.118(1) Police Offences Ordinance 1961 s.25
Cases cited:	Police v Fuiono [2011] WSSC 83 (26 July 2011)
	R v Ward [1976] 1 NZLR 588.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ISAAKO LEAFA MOEVA male of Afega and Malie
Accused

Counsel:
F Ioane for Prosecution
Accused in person

Sentence: 26 May 2017

S E N T E N C E

The charge

1. The accused appears for sentence on two charges of causing serious bodily injury with intent pursuant to section 118(1) Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment and one charge of being armed with a dangerous weapon which carries a maximum penalty of 1 year imprisonment pursuant to section 25 of the Police Offences Ordinance 1961.
2. He pleaded guilty to all charges on 2 May 2017.

The offending

3. There charges arise from two separate incidences.
4. The first charge of causing grievous bodily harm and armed pertains to an incident on 13 July 2016. The Prosecution summary of facts admitted by the accused says that on 13 July 2016, at around 10am at Afega, the accused was working with the victim and others on their employer’s plantation. After some joking about the accused, the accused asked one of his co-workers to give him a machete. The accused was angry with his co-workers. He started walking towards his co-workers and they all ran away. The victim kept working not knowing what was happening. The accused walked towards the victim and slashed his left shoulder with the machete. The victim and the accused wrestled over the machete. Another co-worker managed to remove the machete from the accused. The victim was rushed to hospital as he was bleeding profusely. He was hospitalised for two days, He sustained a big laceration to his left shoulder approximately 20 x 12 x 10 cm.
5. The second charge of causing grievous bodily harm arose from an incident on 15 October 2016. According to the Prosecution’s summary of facts admitted by the accused, on 15 October 2016 at around 8pm, the victim was shopping at Toleafoa Gas Station. The victim and the accused know each other well. The victim grabbed a toy ball and hit the accused on the head. The accused got angry and punched the victim then left. Later that evening, while the victim was waiting for a taxi to go home, the accused came from behind the victim armed with a machete. He struck the victim with a bush knife. The victim used his left hand to block the machete. As a result the victim sustained a deep laceration on his left hand which required stitches.

The accused

6. The accused is 54 years old and is married with 5 children. He lives and works at Nuu as he has been banished from Malie due to the latest incident. His wife and children still reside at Malie.
7. There has been no reconciliation with either victim.
8. The accused has previous convictions from 1984 to 2005, namely 9 theft convictions and one indecent assault.

The victims

9. There are two victims of the offending by the accused.
10. The first victim of the offending on 13 July 2016 is 34 years old. According to the victim impact report, the victim’s left shoulder was injured by the machete and required 16 stitches. He was hospitalised for 3 days. He spent close to SAT$420.00 in hospital and travel expenses as he had to have his bandages changed at hospital.
11. The accused has not apologised to him.
12. The second victim of the offending on 15 October 2016 is 46 years old. The summary of facts says that he also sustained a deep laceration that required stitches. There has been no apology.

Aggravating features of the offending

13. It is aggravating that both offences involved the use of a machete by the accused, and both attacks were unexpected and from the back to unsuspecting victims. Both victims suffered injuries that required stitches.
14. I consider this extreme violence with a significant degree of premeditation evident in the accused attacking his victims from behind.

Aggravating features in respect of the offender

15. The Court considers that it is an aggravating feature in respect of the accused that he has numerous previous convictions, although not for violent offending, it does illustrate a disregard for the law by the accused.
16. In determining the weight of aggravation to be found in previous convictions, it is helpful and important to canvass again the decision of His Honour Chief Justice Sapolu in Police v Fuiono [2011] WSSC 83 (26 July 2011) in which he says;

Whilst previous convictions are relevant to establish the character of an accused for sentencing purposes and whether he has a predilection to commit a particular type of crime, a sentencing Judge should be on guard against sentencing an accused twice for the same offences on which he had previously been convicted and sentenced. This has been explained in many cases but it would be sufficient for present purposes to refer to Sentencing Guide (1994) by G G Hall where the learned author said at 1.6.12, B/191:

"Regard may be had to an offender's record when imposing sentence. This matter is not without its difficulties as the Court has to reconcile two principles; on the one hand the acceptance of the preventive purpose of punishment, and, on the other, the rejection of punishing an offender again for earlier offences: R v Ward [1976] 1 NZLR 588. In that case the Court of Appeal said that an authoritative statement of the policy which the court should adopt where it thinks it necessary to protect the public from the depredations of persistent offenders is to be found in an earlier judgment of the Court pronounced by Sir Michael Meyers CJ in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594, 597 where he said:

"The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly".

"The compromise adopted by the Court of Appeal is that previous convictions may be examined to establish the character of an offender and to assist in the determination of the punishment that is appropriate for a person of that character for the particular offence committed: see eg R v Howe [1982] 1 NZLR 618. See also R v Ottewell [1970] AC 642, 650, [1968] 3 ALL ER 153, 158 (HL). Previous convictions are regarded as being relevant to a prediction of the offender's future behaviour, and to the determination of the likelihood of an offender responding positively to a particular form of sentence.

"While the number and nature of previous convictions is a significant factor in sentencing (as it is illustrative of contempt for authority, and is thus relevant to an assessment of culpability), primarily regard must be had, when determining the appropriate sentencing level, to the intrinsic nature and gravity of the offence charged. A sentence must not be increased merely because an offender has previous convictions, with the result that he is thereby punished twice for the same offence: Casey (above); R v Power [1973] 2 NZLR 617 (CA); Baumer v R [1988] HCA 67; (1988) 166 CLR 51 (HCA).

"A person is not to be sentenced on his or her record. Criminal record is relevant to the extent that if the offender has no previous convictions he or she is generally entitled to substantial mitigation as a first offender (see para 1.6.6). In relation to the length of the offender's criminal record, mitigation progressively becomes less significant until it becomes ultimately non-existent.

The learned author of Sentencing Guide (supra) then went on to say:

"The second feature identified in the extract from the judgment in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 and re-affirmed in R v Ward [1976] 1 NZLR 588 is that the commission of several offences of the same or similar type will normally result in an offender receiving a more severe sentence on the basis that the previous convictions indicate a predilection to commit a particular type of crime. Previous offences may be so numerous and so persistent that a lengthy sentence of imprisonment needs to be imposed because of the need to remove the offender from the community in order to protect its safety, and, where appropriate, its property: Rapana v Police (High Court, Aud AP281AP281/91, 28 November 1991, Tompkins J).

17. I am mindful that any uplift to sentenes noish the accused tsed twice wice for offences for which he has been convicted and sentenced, but will achieve the purpose of protecting the public. I will not uplift the sentence for the previous convictions of the accused from 1984 to 2005 as they are not relevant or similar in nature to the charges before me now.
18. However I consider it an aggravating feature that the accused committed a second offence of a violent nature on 15 October 2016 after he had committed the first offence on 13 July 2016.

Mitigating Factors

19. The only mitigating factor in favour of the accused is his belated guilty plea for which he will be given credit.

Discussion

20. Prosecution has recommended an imprisonment term for both offences with starting points of 5 years and 4 years respectively.
21. It is of paramount importance that the public is protected from the accused. The ease with which he has used a machete to strike the victims on two separate occasions is concerning. It is fortunate that both victims survived the attacks.

Sentence

22. I will sentence him separately for the two incidents, the end sentence being cumulative.
23. Having regard to the aggravating features relating to the first offending, I take 2 ½ years imprisonment as a starting point for sentence. I will deduct 20% or 6 months for his early guilty plea.
24. He is therefore convicted of causing grievous bodily harm and being armed and sentenced to 2 years imprisonment.
25. Having regard to the aggravating features relating to the second offending, I take 2 ½ years imprisonment as a starting point for sentence. I will add 6 months for his earlier offending for which he has now been convicted and sentenced. I will deduct 20% or 7 months for his early guilty plea.
26. He is convicted of causing grievous bodily harm and sentenced to 2 years and 5 months imprisonment.
27. Both sentences of imprisonment to be served cumulatively so that he will serve in total 4 years and 5 months imprisonment.
28. Time spent in custody to be taken away.
    

JUSTICE TAFAOIMALO TUALA WARREN