Police v Tufele [2018] WSSC 109 (1 November 2018)

SUPREME COURT OF SAMOA
Police v Tufele [2018] WSSC 109

Case name:	Police v Tufele
Citation:	[2018] WSSC 109
Decision date:	01 November 2018
Parties:	POLICE (Prosecution) AND FOFOGA TUFELE female of Vailele. (Defendant)
Hearing date(s):	-
File number(s):	S448/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- On the charge of causing intentional grievous bodily harm you will accordingly be convicted and sentenced to two and a half (2½) years in prison. From that is to be deducted the time you have spent in custody Fofoga in respect of this matter.
Representation:	Q Sauaga for prosecution I Sapolu for defendant
Catchwords:	Intentional grievous bodily harm – intoxicated – stab and smash – deep laceration – open wound – severe and sustained nature of the attack – multiple stabs – need to address issues – assault while under the influence of alcohol – bands – domestic assault – degree of premeditation – sense of responsibility – previous good character – victim impact report – guilty plea – banishment – mitigation of sentence – imprisonment.
Words and phrases:
Legislation cited:	Family Safety Act 2013 - section 17 Village Fono Act 1990 -
Cases cited:	Tele’a v National Prosecution Office [2017] WSCA 4 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

FOFOGA TUFELE female of Vailele.
Defendant

Counsel:
Q Sauaga for prosecution
I Sapolu for defendant

Sentence: 01 November 2018

S E N T E N C E

1. Defendant has pleaded guilty to information S448/18 which says that at Vailele on 11 March 2018 with intent to cause grievous bodily harm she caused wounds to her 17-year-old half-brother. The uncontested police summary of facts says that she is a 23-year-old female of Vailele single and unemployed at present. The victim is a 17-year-old male of Vailele also single and unemployed.
2. In the early morning hours of Sunday, 11 March 2018 at about 2:00 a.m. the victim was asleep at home with some cousins. The defendant had been out drinking with friends and arrived home intoxicated. They continued with their party at the house. The victim continued sleeping while the party progressed into the early hours of Sunday morning. By about 5:00 to 6:00 a.m. the party had degenerated and the defendant got into what the summary calls a “scuffle” with one of the friends she was partying with. This roused the victim from his sleep. The summary states that at the time the defendant “was uttering and speaking in an inappropriate language.” When the victim woke up he told the defendant and friends to leave the house as they were making too much noise and it was Sunday morning. This angered the defendant and the defendant and the victim fought.
3. The summary goes on to say the defendant kicked the victim causing him to fall onto a chair. While the victim was lying on the chair the defendant grabbed a glass louvre window and struck the victim. The victim put up his hands to cover his face and the glass louvre shattered on his arm. The summary says the defendant continued to stab and smash the victim in the face area with the shattered louvre causing the victim to bleed from injuries.
4. The victims cousin awoke, saw the attack in progress, intervened and pushed the defendant away from the victim. The defendant fell onto the ground and the victim was able to escape. He walked out of the house but because he was weak fell onto the ground and had to be assisted by neighbours. The victim was rushed to hospital, had surgery the same day and was hospitalized for one week.
5. The injuries of the victim consisted of firstly a deep laceration on the back of his right hand above his wrist which required twenty-six (26) stitches. The photos also indicate a second injury to his right hand below his right thumb. As well there was an open wound to his right shoulder which required six (6) stitches. As well as open wounds to his cheek and below his right ear. Also noted is an open wound on the right side of his nose down to the lower lip which probably also required stitches. As well he had a torn off right earlobe which required seven (7) stitches. Wounds are consistent with the use of glass. There are also multiple scratches and abrasions on his upper chest as evidenced by the photos attached to the summary. I count at least seven (7) separate deep wounds inflicted by the defendants attack. And they are consistent with the severe and sustained nature of the attack.
6. The defendant was apprehended by the police and interviewed. When interviewed she admitted what she had done. She gave no explanation to the police for her behaviour but she told the Probation Office the following which is recorded in the pre-sentence report: She said she came home with two individuals and they drank one large bottle of Rover Vodka. During the drinking session she got into a verbal altercation with one of the individuals and this escalated into a loud exchange. This woke up the younger brother and he came out and scolded them for making too much noise. This led to a physical confrontation. During the course of which she grabbed a louvre from one of the windows and struck him in the face and in the back shattering the louvre. She refers to only two blows in what she told the Probation Office but clearly the number of wounds indicate there were probably more than two blows. The summary talks about a sustained attack and multiple stabs.
7. She told the Probation Office she is remorseful for what she did and that she accepts she has issues with alcohol. Irrespective of the outcome of this case Fofoga, clearly you need to address those issues you have with alcohol for your future life.
8. The approach to sentencing in intentional grievous bodily harm cases was helpfully canvassed by the Court of Appeal in Tele’a v National Prosecution Office [2017] WSCA 4, an authority regrettably not referred to by either counsel for the prosecution or counsel for the defence.
9. Tele’a was a case involving an assault while under the influence of alcohol by a defendant on his brother using a weapon. Similar fact situation to the present matter. The Court of Appeal there referred to the role of section 17 of the Family Safety Act 2013 as an important but not comprehensive source of guidance on some aspects of sentencing for offences committed within a family. The Court noted that among other things the provision places new emphasis on the seriousness of intra-family violence, the need for special measures to protect the safety of victims who will continue to live in the same household as the offender, the importance of the offender’s attitude to his own behaviour, and the offender’s readiness to address problems through counselling and other forms of assistance.
10. The Court of Appeal went on to approve of the R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 model for sentencing by setting start points and then making adjustments for factors peculiar to the case and to the individual concerned. For the offence of intentional grievous bodily harm, the court noted the three Taueki bands but subject to the important rider that the maximum penalty for intentional grievous bodily harm in New Zealand is fourteen (14) years whereas in this jurisdiction it is ten (10) years.
11. The court went on to refer to cases of domestic assault where it said approving of a passage from Taueki the following:

“A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years imprisonment. Where there is a degree of premeditation or there is the use of a weapon, a higher starting point could be expected, perhaps five years or more.”

12. Clearly from that passage there is a case for considering in this case because of the use of a weapon a starting point of five (5) years or more.
13. In paragraph 33 of the Court of Appeal decision in Lua after considering cases submitted by the prosecution the court noted that the penalties imposed were consistent with the bands adopted in Taueki and concluded that in this jurisdiction “Broadly speaking, and with the odd outlier, grievous bodily harm attacks with a machete have tended to result in starting points of four to six years imprisonment.”
14. In the present case the defendant did not use a machete but a broken glass louvre which is as lethal a weapon as a machete. Albeit it is more ungainly to handle which only adds to its unpredictability. I believe no distinction needs to be drawn between the use of a machete and the use of a broken louvre widow.
15. In assessing a suitable start point for this domestic violence case - and this is a domestic violence case, not the normal scenario of a husband versus wife - but here it is a sister on a younger brother, I am satisfied after considering all these matters that a start point of five (5) years in prison is wholly appropriate. It holds the defendant accountable for her crime and the harm done to her brother, it should promote in her a sense of responsibility for her drunken actions and it should send a necessary message to the defendant and to the public at large of the consequences of such behaviour, and how engaging in self-induced intoxication i.e. being drunk will not save you from such consequences. It also signals to the community the seriousness of the defendants actions and the gravity of her offending.
16. From the start point for sentence of five (5) years imprisonment as your defence counsel has pointed out, deductions need to be made for mitigating factors in your favour. First is for your previous good character and record. Both are referred to in your pre-sentence report. You are a first offender you have a good record of service to your family. To reflect those factors I deduct six (6) months from your start point, leaves four and a half (4½) years in prison.
17. The second deduction that needs to be made is for the reconciliation that has been effected. This is also referred to in your pre-sentence report. This is important in the context of the family and for your and its future, especially the victim who says in the victim impact report he has fully reconciled with you. One would expect that to be the case as you are his older sister albeit a half-sister. For those factors I deduct a further six (6) months, leaves a balance of four (4) years in prison.
18. The third deduction is for your guilty plea which was entered when the charges were eventually finalised by the prosecution. That has saved the expense and time of a trial and for that I give you the full deduction of one-quarter of the balance remaining of your term which is one (1) year, leaves three (3) years in prison.
19. The last issue concerns the matter of banishment of the defendant and her family from Vailele. By virtue of section 8 of the Village Fono Act 1990 any punishment imposed on an offender for village misconduct is required to be taken into account in mitigation of sentence. This is why the courts customarily reduce sentences for punishments such as the imposition of a village fine (“sala faa-le-nuu”) or in extreme cases like yours for banishment. The last sentence of the Victim Impact Report says “o le taimi nei matou te le o toe nonofo i Vailele aua ua fa’ate’a ma le nuu talu ai lava le mataupu lenei.”
20. Unfortunately this matter was not raised by either counsel in their submissions neither is it referred to in the pre-sentence report which is the normal practice. I would remind the Probation Office it is important that issues such as village council penalties be incorporated into their report as a matter of routine practice. Especially where the punishment is the extreme one of banishment of an offender and his family.
21. I have no reason to doubt the authenticity of the victims statement and the court accepts therefore that the defendant and her family including the unfortunate victim has been banished from Vailele because of this matter. I say unfortunate victim because he has done no wrong but has nevertheless been punished by banishment along with the other innocent members of his family. Notwithstanding that, the law requires the village council penalty be taken into account in mitigation of sentence. I therefore deduct six (6) months from the balance of your sentence to reflect that decision, that leaves an end sentence of two and a half (2½) years in prison.
22. On the charge of causing intentional grievous bodily harm you will accordingly be convicted and sentenced to two and a half (2½) years in prison. From that is to be deducted the time you have spent in custody Fofoga in respect of this matter.
    

_____________________
JUSTICE NELSON