Police v Laupua [2018] WSSC 125 (18 October 2018)

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Case name:	Police v Laupua

Citation:	[2018] WSSC 125

Sentence date:	18 October 2018

Parties:	POLICE v TAUINAOLA LAUPUA a.k.a TAUINAOLA VAGANA male Salelavalu, Gataivai and Vaitele-Fou.

File number(s):

Jurisdiction:	Criminal

Place of delivery:	Supreme Court of Samoa, Mulinuu

Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE

On appeal from:

Order:	- Convicted and sentenced as follows: - Information S884/16 (grievous bodily harm), to 4 years 4 months imprisonment; - Information S883/16, you are sentenced to 2 years imprisonment (grievous bodily harm), concurrent to S884/16; - Information S885/16, S886/16 and S877/16 (armed with dangerous weapon) – 6 weeks imprisonment each, all to be served concurrent to S884/16; - Information (threatening words) S879/16 – 2 weeks imprisonment, concurrent to S884/16; - Information S880/16 (throwing stones – Police vehicle) – 2 weeks imprisonment concurrent; - Information S878/16 (insulting words)– convict and discharge; - Information S515/18 – possession of narcotics – 2 months imprisonment cumulative to S884/16. -

Representation:	F Ioane for prosecution Accused self-represented

Catchwords:

Words and phrases:	actual violence used, used a knife to stab, broke a beer bottle so as to use it, number of stabbing injuries

Legislation cited:	Narcotics Act 1967, (Family Safety Act 2013);

Cases cited:	Tele'a v National Prosecution Office [2017] WSCA 4 (31 March 2017), R v Taueki [2005] NZCA 174 (30 June 2005) and Police v Wilson [2016] WSSC 83 (27 May 2016).

Summary of decision:

TAUINAOLA VAGANA a.k.a TAUINAOLA LAUPUA male of Salelavalu, Gataivai and Vaitele-Fou.
Accused

[1] Tauinaola, you appear for sentence on one charge of possession of narcotics contrary to sections 7 and 18 of the Narcotics Act 1967 carrying a maximum penalty of 14 years imprisonment (S515/18). You also appear for sentence on two charges of assault with intent to cause grievous bodily harm causing grievous bodily harm, three charges of being armed with a dangerous weapon, one charge of throwing stones, one charge of insulting words and one charge of threatening words.

[2] According to the Summary of Facts accepted by you, on the 18th March 2016, you drank alcohol with your first victim, your brother. At approximately 11pm to 12 am, your sister approached you both to be quiet. You and your brother got into an argument which led to you both fighting. You grabbed an empty beer bottle, cracked the top off and used the beer bottle to stab your brother on the back of his head, his right shoulder and above his left knee.

[3] When your brother was on the ground, a neighbor saw this and intervened pulling you away. You however returned and hit your brother’s head with a chair while he was on the ground. Police were called to the scene. On arrival, you were armed with rocks in one hand and a small knife in another. On arrival, you threw rocks at the Police vehicle and swore at Police, ‘kefe’, ‘ufa’ and ‘komo’.

[4] While Police attempted to capture you, you threatened Police: “vaai oulua I o’u alaku kakipi lua ulu I le sapelu ma kasei lua fa’ai I fafo ae kuu I lo’u kaga.’ Police requested the assistance of your cousin who agreed to assist Police. In the course of attempting to apprehend you, you used a knife to stab your cousin while he was on the ground.

[5] Your brother suffered a deep cut to the back of his head, deep wound to his left shoulder and deep wound to his leg. Your cousin received a deep cut to his back requiring 5 stitches.

[6] You were granted bail on the 25th April 2016 to appear for sentence on the 6th June 2016 for this offending. You did not however answer to bail. You explained at sentence before this Court that you did not appear for sentence as the matter with your brother had been reconciled.

[7] You have also accepted a second Summary of Facts that on Friday 16th March 2018 around 1.30pm, you were taken to Apia Police Station for an unrelated matter. As you were taken to Apia Police Station, you were seen trying to reach down to your jeans pocket as if to try and get something out of the pocket. You were then searched by the Police officer and from the search, loose leaf marijuana leaves were found weighing 2.1 grams. This is estimated to yield 2 to 3 marijuana cigarettes.

[8] You were again remanded to appear for sentence, however, you did not appear for sentence and a further warrant for your arrest was issued.

[9] You are a 31 year old male of Vaitele-Fou and Salelavalu. You were married with two children and are employed at Rico’s Brick Construction Business. You completed school to year 12 and on completing school, stayed at Salelologa to work in the family bakery. I note you were married in 2009 and divorced in 2013. As at 2016, you were the father of two girls aged 4 and 6. You told Probation Service in 2016 that you were deeply remorseful for your offending.

[10] A Pre-Sentence Report was ordered for you as were orders made by me for you to attend an alcohol and drugs program prior to sentence to assist you. You did not attend to either as ordered. Following your remand in custody however, an updated PSR has now been provided. This PSR shows that there has been no reconciliation with your cousin and your cousin has recently passed away. A reconciliation with your brother could also not be confirmed by the Probation Service.

[11] You have confirmed your prior conviction record which shows prior convictions for burglary and theft from 2013 and various escape convictions.

[12] The first victim of your offending in 2016 is your brother. The Summary of Facts does not state his age. There is also no Victim Impact Report so there is a very little information available about the effect of the offending on your brother.

[13] The second victim is your cousin who would now be 36 years old. There is also no VIR so there is no information available about the impact of the offending on him although the Supplementary PSR shows that he has recently passed away due to an unrelated incident.

[15] According to your PSR, you told the Probation Service that he had reconciled with your brother and cousin. I will allow a deduction for reconciliation with your brother and your guilty pleas.

[16] You also claim to be remorseful for your offending and your PSR from 2016 refers to your deep remorse. I simply do not accept that you are truly and genuinely remorseful for your actions. When released on bail to appear for sentence in 2016, you did not appear for sentence. When remanded on bail again this year to appear for sentence, you again failed to appear for sentence. Warrants of Arrest for this matter have been issued on a number of occasions. You were also given the opportunity to attend a program and to speak with the Probation Service for your PSR and again, you did not comply with the Court’s direction. The expression of ‘deep remorse’ to the Probation Service and before this Court are hollow words to reduce sentence when judged by your actions. I do not accept that you are truly and genuinely remorseful and no deduction will be extended for remorse.

[17] Your offending in 2016 is very serious. You used various dangerous weapons to assault your two victims, your brother and your cousin. Your intentionally broke a beer bottle to use this to stab your brother a number of times including in the back of the head. When your brother was on the ground, you took a chair and again assaulted him hitting him in the head. When Police arrived, you stoned then Police vehicle and uttered insulting words to the Police officers. You then threatened Police officers in the conduct of their duties. When your cousin was asked to assist Police and as he helped Police, you stabbed him in the back with that knife when he was on the ground.

[18] Your actions were extremely violent and senseless. When Police arrived to carry out their duties, you continued with your actions rather than complying with Police. Your gross disregard for the law has extended not only to your offending and to the Police officers who attended the scene but to include your conduct before the Courts. You have shown no genuine remorse for your actions and your actions are to be condemned. You are a danger to the community and the sentence I pass today will be a deterrent and one to protect the community from you. In doing so, I also urge the Prisons and Corrections Service to make available to you appropriate rehabilitation programs so that when you are released from prison, your risk to the community is mitigated.

[19] I will apply the totality in sentencing principles to your 2016 offending and adopt information S884/16 as the lead charge. Prosecution seeks a 3 year start point for sentence. In my respectful view, given the two victims, the circumstances of offending, the use of a number of weapons including a beer bottle and knife, the violence involved and bearing in mind Tele'a v National Prosecution Office [2017] WSCA 4 (31 March 2017), R v Taueki [2005] NZCA 174 (30 June 2005) and with regard to other sentences including Police v Wilson [2016] WSSC 83 (27 May 2016), this start point is far too low. Your offending would be at the upper range of band 2 or at the bottom end of band 3 of R v Taueki.

[20] Whilst a higher start point could be warranted, I will adopt 6 years start point for sentence. There is no uplift for your prior convictions as they are different in nature to this. I deduct 3 months for your reconciliation with your brother. For your guilty plea entered at the first opportunity, I deduct 17 months.

[21] For your possession of narcotics charge, I adopt 3 months start point for sentence. I deduct 1 month for your guilty plea.

Supreme Court of Samoa

Police v Laupua [2018] WSSC 125 (18 October 2018)