Police v Taliaoa [2019] WSSC 60 (23 October 2019)

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Case name:	Police v Taliaoa

Citation:	[2019] WSSC 60

Decision date:	23 October 2019

Parties:	POLICE v ATAPANA TALIAOA male of Vaitele Uta.

Sentencing date(s):	23 October 2019

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, less time in custody: - (i) Attempted murder, 9 years imprisonment; - (ii) Armed with a dangerous weapon, 6 months imprisonment also to be served concurrently; and - (iii) Willful trespass, convicted and discharged.
Representation:	Q Sauaga for Prosecution T J Ponifasio for the Accused

Catchwords:	attempted murder – aggravating features –grievous bodily harm – mitigating features – maximum penalty – starting point for sentence – sentence

Words and phrases:
Legislation cited:	Crimes Act 2013, Police Offences Ordinance 1961

Cases cited:	Mander J in Setu v R [2017] NZHC 1839 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372

Summary of decision:

(i) One charge of attempted murder contrary to section 104 of the Crimes Act 2013 which carries a maximum penalty of life imprisonment;

(ii) One charge of being armed with a dangerous weapon contrary to section 25 of the Police Offences Ordinance 1961 carrying a maximum penalty of 1year imprisonment; and

[2] On the hearing date, you pleaded guilty to assault grievous bodily harm and wilful trespass. Assault grievous bodily harm was an alternative charge to attempted murder and accordingly, as you were found guilty of attempted murder, I do not need to sentence you on the assault grievous bodily harm.

[3] Unlike many cases that come before the Courts involving violent offending, what you did to your victim on the morning of the 20th January 2019 was captured on security camera.

[4] On Saturday 19th January this year, the victim started work at Annie’s Shop Vaitele at about 5.00pm cooking bbq. At about 1.00am the following morning, he took on the role of security guard for the shop. In the course of his shift, he became tired and went to sleep at some time around 5.45am.

[5] As was captured on the security camera footage, as the victim slept on the bench at the shop, you came to where he was sleeping. You were pre-armed with a piece of timber. You gave a security camera at the shop a defiant and rude gesture. You then went and moved the security camera so it was not facing where the victim was sleeping so that you would not be seen. You obviously did not realize that there was a second security camera in the area that was also recording where the victim was sleeping.

[6] After about 13 minutes of being in an around the victim as he slept, you then struck the victim 8 times with the timber, the first strike as he was sleeping with two further strikes in quick succession. The various strikes struck the victim’s head and upper body and you inflicted these strikes as you stood at the head of the victim. The 8 strikes were inflicted in the period of just under 2 minutes. As a result of your actions, the victim sustained a laceration to the scalp, laceration to the lower jaw and a fracture to the jaw.

[7] According to your Pre-Sentence Report, you are a 29 year old single male. Prior to this matter, you were employed as an apprentice carpenter. You have also held other jobs including as a security guard and as a taxi driver. You completed school to year 13.

[8] You have a prior conviction in 2015 for narcotics offending. In 2015, you were described by your brother as a hardworking person, quiet and reliable. However, in your updated Pre-Sentence Report, you are described by your uncle as troublesome with a tendency to run away from home.

[9] The victim is a 37 year old male. In his VIR dated 3 October 2019, he said he was hospitalized for two weeks. The evidence at trial was however that he was hospitalized for two days. He also says in his VIR that he incurred hospital costs of $300.00 but the cost of this incident for him has exceeded $1,000.00. He says that there has been no reconciliation and apology either by you personally or by your family.

[11] In respect of the offending, there are no mitigating factors. In respect of the mitigating features personal to you as an offender, you pleaded not guilty to attempted murder but guilty to grievous bodily harm. Prosecution accepts that some deduction can be extended in mitigation on this basis in that you accepted responsibility for the attack but only that you disputed the intention to kill.

[12] There has been no reconciliation or apology to the victim of your offending. You have also not expressed remorse for your offending. When given the opportunity to address the Court, you simply asked for forgiveness, disputed the guilty verdict of the panel of assessors and reiterated that you did not intend to kill the victim but simply to teach him a lesson.

[13] Atapana, it is very rare as I said to you yesterday that a Court in Samoa has the opportunity to observe the actual assault that comes before it for sentencing. Very often, all we have is the oral testimony of witnesses, crime scene photographs and similar evidence but not the footage of the actual assault. In your case however, the Assessors as well as I had the opportunity to observe you and your actions that morning. The video footage is confronting in showing your absolute disregard for the welfare of the victim and for human life. It was disgraceful and cowardly conduct on your part and for which you should be ashamed. As the victim was asleep and vulnerable on the bench, you came to him and standing above his head, you attacked him with a piece of timber in circumstances in which he had no opportunity to defend himself from your cowardly acts. You took short breaks between your assault of the victim, watched him and when he stirred, you would strike the victim again. You showed no sense of human decency. It is difficult to understand your cruelty and the heartlessness that you showed that morning to the victim.

[14] You also continue to dispute the findings of the panel of Assessors and to that extent, you have failed to take full responsibility for your actions that morning. I do however accept the submission by your counsel to extend a discrete deduction from the start point to you for your guilty plea to the charge of assault grievous bodily harm. That acceptance simplified the matters at your trial to the issue of whether or not you intended to kill the victim. Given the compelling video evidence, there was perhaps no other real option but for you to do so. It was a concession properly made through your counsel and one that a deduction will be given.

[15] It is telling that you have a supportive reference in 2015 from your brother to your most recent reference from your uncle in 2019 which says that you are troublesome. Your life has sadly taken a turn for the worse. You completed school at Leififi College, started as an apprentice carpenter and showed all the promise of being a constructive and positive member of society. Whether it is alcohol or the wrong friends or as in most cases that seem to come before the Court, a combination of both that has led your life to where you stand today, it is always very disappointing to see young lives such as yours wasted.

[16] It is also telling that there are no supporting references from your pulenuu, church or family. They have also not been present, it seems, during the course of your trial or during your sentencing. This, for many young men, is far too common when they come before the Courts. It is important in my view that as a society founded on the pillars of faith, family and village that our churches and pastors, our families and our village leaders identify and support young troubled men affected by alcohol and the wrong circle of friends from falling into the life that you have found yourself Atapana. Too many young lives that we see before the Courts every day are wasted in this way, with alcohol far too often being a contributing cause of offending. The challenge of young men like yourself turning to alcohol and being influenced by the wrong circle of friends and ending up before the Courts is not simply a matter for the Courts and Police to deal with. It requires those around these young men to support them, guide them and help them. This is because when it ends up before the Courts, in too many cases, it will be too late to spare them from imprisonment when the offending is serious as in your case Atapana.

[17] Prosecution seeks a 10 year start point for sentence. In addressing the Court on the use of a piece of timber to effect the assault, prosecution refers to the judgment of Mander J in Setu v R [2017] NZHC 1839 where the Court stated at paragraph 51:

“[51] There are obvious fatal risks associated with the use of a knife or a sword or indeed any implement specifically designed as a weapon. That was recognised by the Court of Appeal in Taueki when it referred to the use of a lethal weapon such as a firearm or a knife. Similarly, however, the use of a club, particularly when aimed at the head which can cause significant and permanent injury, was an example the Court also expressly mentioned. I accept there is an inherent serious danger when an offender confronts his victim with a knife and uses it as a weapon, but there is a comparable level of danger arising from a person arming himself with a piece of wood, effectively a club, standing over his victim asleep in her bed, and using it to strike blows to the head...”

[18] In R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, the New Zealand Court of Appeal to which Mander J also referred also identified the use of a club, particularly targeting the head as a serious aggravating factor.

[19] In this case, you brought the timber with you to the scene and then you used the timber to assault the victim targeting his head and upper body. In my view, given the nature of your attack on the victim and the use of the piece of timber to attack the sleeping victim targeting his head and his upper body, a 10 year start point for sentence is appropriate. For your guilty plea to the assault grievous bodily harm, I deduct 10% or 1 year from that sentence.

[20] Accordingly, you are convicted and sentenced as follows, less time in custody:

(ii) Armed with a dangerous weapon, 6 months imprisonment also to be served concurrently; and

Supreme Court of Samoa

Police v Taliaoa [2019] WSSC 60 (23 October 2019)