Police v Nanai [2019] WSSC 78 (12 July 2019)

IN THE SUPREME COURT OF SAMOA
Police v Nanai [2019] WSSC 78

Case name:	Police v Nanai
Citation:	[2019] WSSC 78
Decision date:	12 July 2019
Parties:	POLICE (Informant) and SIPILI NANAI a.k.a ZIPSO, male of Vaitele, Falelatai & Solosolo (Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to two years and seven months’ imprisonment.
Representation:	L Sio for Prosecution L Tamati for the Defendant
Catchwords:	grievous bodily harm – digits severed (injuries sustained) – fracture to head – remorseful – use of machete – severe injuries sustained – early guilty plea – first offender – apology
Words and phrases:	vulnerability of victim (victim struck from behind, unarmed and unaware) – sentencing bands (R v Taueki)
Legislation cited:
Cases cited:	R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

SIPILI NANAI a.k.a ZIPSO, male of Vaitele, Falelatai & Solosolo

Defendant

Counsel: L Sio for Prosecution
L Tamati for the Defendant

Sentence: 12 July 2019

SENTENCING OF TUATAGALOA J

1. The defendant appears for sentencing on the charge of grievous bodily harm which carries a maximum penalty of ten (10) years’ imprisonment.^[1]
2. The Summary of Facts prepared by the prosecution was disputed by the defendant in relation to paragraphs 7-13. A disputed facts hearing was conducted and the Court accepted the evidence of the prosecution witnesses. The Court finds that the defendant was not highly provoked as he claims or that he was acting in self-defence. Paragraphs 7-13 of the Summary of Facts provided by the prosecution are confirmed and therefore remain.

The offending (in summary)[2]

3. On Friday, 3^rd August 2018, the defendant was having drinks with his wife outside their house at his wife’s village of Solosolo. The defendant was playing music and singing to it. At around 8pm the victim who lives next door went and told the defendant to turn his music down as it was too loud. There was an exchange of words between the defendant and the victim that led to the defendant assaulting the victim using a machete.

The injuries

4. The victim sustained the following injuries from the assault:
   • (a) 3^rd and 4^th fingers on the left hand were severed;
   • (b) 5^th finger on the left hand was lacerated; and
   • (c) Oblique fracture to the head on the left side
5. The victim according to the victim impact report underwent reattachment surgery to his 5^thfinger (K-wired) and twelve stitches to the head. He was hospitalized for four days. The K-wire was only removed on 19 February 2019 after five months.

Victim impact report

6. The victim said in the victim impact report that as a result of his injuries, he no longer has full function his left hand not only impacting on his ability to carry out normal day to day duties in caring for his family, but it has also had a profound effect on him securing employment. Since the time the victim impact report was done (21 February 2019) the victim continues to go to the hospital for his follow up medical checks.

The accused

7. The accused is 37 years old from the villages of Vaitele-uta and Falelatai. His wife is from the village of Solosolo where the offending took place. The accused (from his affidavit) is said to be the sole breadwinner of his family. He is a famous local musician known as Zipso and profits from his music career is his main source of income.
8. The defendant and his Counsel seeks for a non-custodial sentence upon the following reasons:
   • (a) He is the sole breadwinner;
   • (b) He is on the path of recovery where he has given up smoking and alcohol;
   • (c) He is on the pathway of enriching himself spiritually assisted by his pastor, Rev. Peniamina Tuala and is attending church regularly;
   • (d) He is remorseful.

Aggravating factors

9. The Prosecution in their submissions identified the following aggravating factors:
   • (a) The intentional use of a lethal or dangerous weapon (machete) to inflict injuries;
   • (b) Vulnerability of the victim: The victim had turned and was walking away from the victim towards his house, was unarmed and unaware that the defendant was approaching from behind and struck at him with the machete;
   • (c) The injuries sustained were quite severe;
   • (d) Impact of the injuries is that the victim no longer has full use of his left hand and can no longer provide for his family financially.

Mitigating factors

10. The mitigating factors personal to the defendant are his early guilty plea and first offender status. There is nothing adverse said or provided by the prosecution about the accused previous good character. I will allow considerable discounts for those two.
11. The apology by the defendant and his father to the victim will also be considered in sentencing.

Discussion

12. Prosecution referred to a number of cases with similar circumstances as a guideline to the court with regards to the sentence to impose. They also referred to the sentencing bands in R v Taueki^[3] as appropriate and applicable to the present case.
13. The severance of two fingers is an indication of the force used. The intentional use of the machete in that the defendant got hold of the machete; went after the victim who had walked away from the defendant towards his house and struck at the victim from behind showed a culpability level of medium to high on the defendant’s part.
14. Offences which involve the use of machete, is prevalent in our society. The safety of the general community is very much at risk from such offending therefore deterrence and denunciation, are very much at the forefront. A strong message needs to be sent out that such behaviour or offending is not tolerated.
15. The Court must hold the defendant accountable for his actions and for the injuries sustained by the victim. In the circumstances of this offending, a custodial sentence is most appropriate to achieve those purposes of deterrence, denunciation of such behaviour, accountability for such behaviour and most importantly the safety of the community.
16. The level of sentence to be imposed comes with the hope that the message will come out loud and clear not only to the accused but also the public that there are consequences for such behaviours and it is always important to think of the repercussions in doing such actions.

Starting point

17. The maximum penalty for the offending the accused is charged with is maximum 10 years’ imprisonment.
18. The starting point reflects the seriousness of the offending and the various aggravating features of the offending.
19. The Prosecution submitted for a starting point of 5 years’ imprisonment. The defendant and his Counsel ask for a non-custodial sentence.
20. What I observed of the defendant when giving evidence is that he is a man full of aggressiveness and did not strike me as someone who is truly remorseful for what he did.
21. A starting point of 5 years is appropriate in the circumstances of this offending. The most significant mitigating factors are his early guilty plea and his previous good character. I give 12 months’ discount for previous good character. I will also give 6 months’ discount for the apology by the defendant and his father to the victim to which the victim said that he had forgiven the defendant. This leaves 42 months or 3 ½ years. A 25% discount is then given for his early guilty plea of 11 months. This reduces the sentence considerably to 2 years and 7 months.
22. The defendant is convicted and sentenced to two years and seven months’ imprisonment.
    

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, s118(1)
^[2]Refer to Summary of Facts for full set of facts
^[3]R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372