Police v Salapo [2018] WSSC 130 (1 November 2018)

SUPREME COURT OF SAMOA
Police v Salapo [2018] WSSC 130

Case name:	Police v Salapo
Citation:	[2018] WSSC 130
Decision date:	1 November 2018
Parties:	POLICE v AVA JEFFREY SALAPO male of Vaie’e Safata, Vaitele-fou and Satapuala.
Sentencing date(s):	1 November 2018
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:
Order:	- Accordingly, you are convicted and sentenced to 3 years and 2 months imprisonment less time remanded in custody.
Representation:	L Faasii for prosecution MV Peteru for the Accused
Catchwords:	charge with intent to cause grievous bodily harm and premeditation.
Words and phrases:	you had heard rumors that the victim was having an affair with your uncle’s wife; you used a small knife to commit your offending; You targeted the throat of the victim cutting his throat; Vulnerability of your victim as a taxi driver attacked from behind using a knife.
Legislation cited:
Cases cited:	Police v Osooso [2017] WSSC 3.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

AVA JEFFREY SALAPO male of Vaie’e Safata, Vaitele-fou and Satapuala.
Accused

Counsel:
L Faasii for prosecution
MV Peteru Accused

Decision: 1 November 2018

S E N T E N C E

[1] Ava this matter was adjourned to today for my sentencing decision. Your lawyer is not present. I think I have lost count how many times your lawyer has not appeared before this Court. I note that on the 12th October she did not appear, on the 2nd October she did not appear, she did not appear before the Chief Justice on the 3rd April and she did not appear also on the 16th April. That is not satisfactory. So I’m proposing to proceed with your sentence today. She has made her submissions and it’s simply a matter for my sentencing decision. And a written copy of my sentencing decision will be made available in event that you wish to appeal my decision. Is there anything you wish to say before I proceed with your sentencing or why I should wait for your lawyer?

Ava Ia e iai sina tamai faamatalaga o loo fia fai

34. The only thing I’m asking you about is about whether we proceed with sentencing today or not. I’ve indicated to you I’m proposing to proceed. I had already told you earlier if your lawyer does not attend then you get another lawyer. Is there anything you wish to say to me before I proceed with your sentencing or why I should not proceed?

Ava leai faaauau

34. faaauau?

Ava ia

34. ok you may take a seat

The Charge:

[2] Ava you appear for sentence on 1 charge with intent to cause grievous bodily harm you caused grievous bodily harm to Ray Charles. This offence carries a maximum penalty of up to 10 years imprisonment.

The Offending:

[3] According to the Prosecution Summary of Facts accepted by you through your lawyer, you had heard rumors that the victim was having an affair with your uncle’s wife. On the 4 September 2017 at Vaiala in the afternoon, the victim had parked his taxi under a tree to rest for a while. At the same time, you were walking along the road at Matautu when you saw the victim there. You then approached the victim and asked him if his taxi was available to take you to the seawall. The victim said yes and you then got into his taxi.

[4] You sat at the back seat on the left side of the taxi. You were then driven by the victim to the seawall at Vaiala and when the taxi reached the dead end of that road the victim stopped the taxi. The victim then turned to you to obtain his taxi fare. You have got out a small knife from your bag and then you slit the victim’s neck with it from behind. The victim immediately got out of the taxi and ran for help towards the nearby house. At the same time, you got out and went to the driver’s seat of the taxi. You tried to reverse the taxi but the taxi’s back wheels went over some large rocks that were nearby and this caused the taxi to come to a halt. You then walked to the intersection at Matautu and caught a taxi leaving the victim at the scene.

[5] You are a 26 year old male of Vaie’e, Vaitele-fou and Satapuala. You are single and unemployed. You were raised in American Samoa and moved to Samoa in 2008 where you continued your schooling. You completed school to the end of year 11. Your mother has passed away. You have been residing with your uncles. You have positive character references and support of your character and it seems that alcohol was the contributing factor to your offending.

The Victim:

[6] The victim is Ray Charles, a 40 year old taxi driver. He is in a de-facto relationship and has 4 children.

[7] In his Victim Impact Report, he confirms the summary of facts. He stated he was in hospital for four days and had to return to have his stitches removed. He describes initially being angry at what had happened but he now has a clean spirit of forgiveness for you, despite the fact that you have not seen him.

Aggravating Features of the Offending:

[8] The following are the aggravating features of the offending:

a) Use of a weapon. You used a small knife to commit your offending;

b) You targeted the throat of the victim cutting his throat;

100. Premeditation, I accept that you offending was a premediated act. Appropriately it was also accepted as a premeditated act by your counsel on your behalf; and

4. Vulnerability of your victim. He was vulnerable as a taxi driver attacked from behind using a knife.

[9] There are no aggravating factors personal to you as an offender, you are a first offender.

[10] There are also no mitigating features in respect of your offending.

Mitigating Factors as an Offender:

[11] The mitigating factors personal to you as an offender are as follows:

(i) Your remorse which I accept as genuine;

(ii) You prior good character and I accept your offending is out of character for you; and

(iii) Your guilty plea entered on the downgrade of the charge to grievous bodily harm.

Discussions:

[12] Ava you appear for sentence on a very serious charge. The circumstances of your offending was also very serious. I accept that you had been drinking. You saw the victim, entered his taxi and sat in the back seat behind him. You asked to be taken to a secluded place at the sea wall at Vaiala and there from the back, you slit his throat. You then tried to leave the scene in the victim’s taxi but the taxi got stuck. You are very fortunate that the victim did not die, such acts of cutting the victim’s throat with a knife being very dangerous and serious act. There was a clear element of premeditation in your offending.

[13] As I’ve said that I accept you are genuinely remorseful and that you are a person of prior good character and that this act by you was entirely out of character. I also accept that it may have been influenced out of intoxicated state – that however is not an excuse.

[14] Prosecution seeks a 5 years start point for sentence. Your counsel seeks a non-custodial sentence and relied on the case of Police v Osooso [2017] WSSC 3 for the imposition of a non-custodial sentence. With respect, Police v Osooso was a case involving a strong element of provocation and an altercation resulting in the stabbing. Those elements are absent in your case.

[15] A custodial sentence is warranted in your case as deterrent to you and others who may consider such a cowardly act on others. The seriousness of your assault cutting the victim’s throat in the circumstances that you did warrants a custodial sentence.

[16] I have referred to the authorities that have been referred to by Prosecution and I adopted 5 years start point for sentence. For your genuine remorse, I deduct 6 months and for your prior good character, 6 months. From the balance, I deduct 10 months for your guilty plea on the downgrade of the charge to grievous bodily harm.

[17] Accordingly, you are convicted and sentenced to 3 years and 2 months imprisonment less time remanded in custody.

JUSTICE CLARKE