Police v Fidow [2019] WSSC 85 (23 October 2019)

IN THE SUPREME COURT OF SAMOA
Police v Fidow [2019] WSSC 85

Case name:	Police v Fidow
Citation:	[2019] WSSC 85
Decision date:	23 October 2019
Parties:	POLICE (Informant) and LUAIPOU FIDOW, male of Fogapoa Savaii (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 as follows: (i) Attempted murder – 8 years and 8 months; (ii) Armed with dangerous weapon (x3) – 8 months’ imprisonment for each count concurrently; and (iii) Threatening words – 4 weeks’ imprisonment. All sentences to be served concurrently less any time in custody.
Representation:	F. Ioane & M. Alai for Prosecution T. Lei Sam for the Defendant
Catchwords:	attempted murder – armed with dangerous weapons (hammer, machete, brick) – threatening words – domestic violence – defendant under influence of alcohol – first offender – custodial sentence – extreme violence – repeated attack – injuries to victim’s head – serious injuries sustained by victim – victim pregnant (vulnerable) – apology
Words and phrases:
Legislation cited:	Crimes Act 2013 s. 104; Police Offences Ordinance 1961 ss. 4(g); 25.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

LUAIPOU FIDOW, male of Fogapoa, Savaii

Defendant

Counsel: F. Ioane & M. Alai for Prosecution
T. Lei Sam for the Defendant

Sentence: 23 October 2019

SENTENCING OF TUATAGALOA J

Charges

1. Luaipou Fidow, you appear for sentencing today on the following charges:
   • (i) Attempted murder of Sareta Sefo which carries a maximum term of life imprisonment^[1];
   • (ii) Being armed with a dangerous weapon(x3) namely a hammer, a machete and a brick which carries a maximum of 12 months’ imprisonment^[2] for each count; and
   • (iii) Threatening words, “Ua e maga’o e fasioki oe,” with a maximum term of 3 months’ imprisonment or a fine not exceeding 2 penalty units ($200)^[3].

The offending

2. The summary of facts by the prosecution was read out and confirmed by the defendant. The summary of facts provides the background to the offending as follows:
   • 2.1 The defendant and the victim are in a de-facto relationship, aged 28 and 29 years respectively. At the time of the offending they had two children, a 4 year old and 2 year old and the victim was pregnant with their third child. The defendant and the victim were living at Fogapoa with the defendant’s family.
   • 2.2 On the night the incident happened, the defendant was drinking with two friends at their faleo’o (small Samoan house) while his partner and children were watching television in the front house. The defendant, the victim and their children sleep in the faleo’o. At around 12.00 – 1.00am the victim and the children went to the faleo’o and she told the defendant to shift their drinking somewhere else as she needed to put the kids to sleep. The defendant was not happy with the victim telling him to shift their drinking elsewhere but him and drinking buddies left anyway.
   • 2.3 Later on the defendant returned said to be still angry with his partner or victim and with a hammer in his hand and yelled at the victim saying, “Ua e maga’o e fasioki oe.” The victim is said to have tried to seize the hammer which caused the hammer to slip out of the defendant’s hand.
   • 2.4 The defendant in turn punched the victim’s face a couple of times. He then walked out of the faleo’o and said to the victim, “O le po a nei e te oti ai.” His drinking buddies tried to calm him down and told him to leave the victim alone but the defendant did not listen and instead he went and got a machete. At this time, the victim had continued to prepare the beddings for the children when their young daughter called out to the victim, “Mummy le naifi”.
   • 2.5 The victim turned around and the defendant struck at her severing the top of her left ear and wounding the right side of her head next to her ear which the wound bled profusely. Family members of the defendant intervened and the victim got hold of her young child (2 years old) while the defendant took their eldest daughter to his sister’s house and returned back to their faleo’o.
   • 2.6 The defendant upon returning after taking their eldest daughter to his sister’s house again beat up the victim by continuously punching her face while she was holding their young child. Family members of the defendant pulled the defendant away from the victim. The defendant got hold of a brick and walked back to the victim to which the victim saw and she ran off with her baby.
   • 2.7 The victim is said to have fallen down due to the injuries she had sustained and while still holding her young child called out for help to the defendant’s sister who went over to her and took her to the hospital.
3. The circumstances of this offending warrants a custodial sentence.

The defendant

4. The defendant is 28 years’ old and from the pre-sentence report is from the village of Fogapoa, Savaii. He left school at Year 12 and stayed home to help out with the family chores. From the pre-sentence report twice he moved to Upolu to live and work but it seemed only for short periods of time. He spent most of his life at Fogapoa, Savaii where he and the victim were living with his family. At the time of the offending the defendant was unemployed and living off the land.
5. The defendant’s aunty in the pre-sentence report speaks of the defendant as hard working, loving, caring and respectful person. The village mayor in his written testimonial said the defendant was part of the village taulele’a group who assist the village when the taulele’a are needed. The defendant’s faifeau also spoke of the defendant’s good character.
6. The defendant is a first offender who eventually pleaded guilty to the charge of attempted murder to which he originally pleaded not guilty to.

The victim

7. The victim is the 29 years old de-facto partner of the defendant whom at the time of the offending was pregnant with their third child. The victim is from the village of Eva in Upolu but at the time of the offending was living with the defendant, his uncle, aunty and their children at Fogapoa, Savaii.
8. As referred to earlier, the victim and the defendant at the time of the offending have two young children of 4 and 2 years old.
9. The victim sustained the following injuries:
   • (i) Huge laceration at right side of head behind the ear which required seven stitches;
   • (ii) Torn outer (top part) of the ear; and
   • (iii) Swollen face.

Aggravating factors

10. The aggravating features of the offending are:
    • (a) The use of a machete;
    • (b) There was extreme violence involved – the defendant walked over with a hammer (although he did not use it as it fell off his hand but it is a sign of violence); the defendant delivered several punches to the victim’s face, used the knife to slash at her; then continued to punch her in the face and also got hold of a brick;
    • (c) The persistent attack by the defendant upon the victim;
    • (d) The assault was accompanied with serious threats of killing the victim;
    • (e) The attack was to the victim’s head – which part of the body if injured could result in serious consequences;
    • (f) There were serious injuries sustained by the victim to her face and to the side of her head – there was a gash which bled profusely and needed seven stitches and a torn outer right ear. The photos taken of the victim whilst at the hospital showed her face badly swollen, the gash to the side of her right head and the torn right ear.
    • (g) The victim was in a vulnerable state as she was not only pregnant, she was in the presence of their two young children and she was also holding the younger child, 2 years of age in her arms;
    • (h) The offending is one of domestic violence and in the presence of two very young children which under the Family Safety Act^[4] is an aggravating factor.

Mitigating factors

11. There are no mitigating features of the defendant’s offending but there are mitigating features personal in favour to the defendant. These are:
    • (i) The guilty pleas. Although, the plea of guilty to attempted murder was not until later, discount will still be given as the subsequent guilty plea has saved the court’s time but also the victim from giving evidence and having to relive the whole incident again;
    • (ii) The defendant will be treated as a first offender as his previous conviction has no relation to the current offending or that is of similar offending.
12. The defendant said in his pre-sentence report that he was remorseful for what he did. Of course he would be but I will not give much weight to it when considering the sentence to impose.
13. The defendant has said in the pre-sentence report that he has apologized to the victim and they have reconciled. Defence Counsel in his submissions in mitigation refers to this alleged reconciliation and the victim having accepted the apology and has forgiven the defendant and wanted the matter withdrawn. However, the probation services could not locate the victim to confirm such apology and reconciliation.

Discussion

14. There is a serious need for our men to change their mindset or belief that it is acceptable to beat or assault your wife or partner however they want and whenever they want. In Samoa, despite numerous messages and education around this issue there are still ‘men’ who see and treat women as their property. Unless and until these men change their mindset, Samoan women (and any woman for that matter) will always be vulnerable and in danger.
15. Our men need to remember the basic tenet of the sacred relationship in our Samoan culture between ‘the brother and sister’ in the context of marriage or intimate partner relationship, that ‘one man’s wife or intimate partner is another man’s sister.’
16. I have some concern in the circumstances of this offending, that from the summary of facts and pre-sentence report the defendant committed the offending while others were present or within close vicinity of what was happening and yet no one seemed to intervene and stop the defendant from doing what he was doing, not any of his friends he was drinking with, nor the defendant’s family that the defendant and the victim live with.
17. Domestic violence and intimate partner violence will not decline if our families and villages do not take a strong stance against it. The Court itself will not stand by but will impose measures to sanction such unacceptable behaviour.
18. The circumstances of this type of domestic violence where weapons are used to assault the women, the husband or father beating the mother in front of the children, the serious verbal threats issued by the male offender against the women victims are still happening despite the heavy penalties impose by the Court. The Court takes zero tolerance where serious violence is committed against a spouse or intimate partner.
19. The prosecution recommends a starting point of 12 years for the attempted murder having referred the Court to previous sentences imposed by the Court on same offences. The defence refers to two cases; one of which is not relevant as it is a case on grievous bodily harm^[5]. What Counsels need to remember is each case is to be sentenced according to its peculiar circumstances.
20. I take the totality approach and find as appropriate the starting point of 13 years for the leading offence of attempted murder. I deduct 18 months for his first offender status and remorse. This leaves 138 months or 11 years and 6 months. A further discount of 25% amounting to 2 years and 10 months for his guilty plea is to be deducted. The end sentence is 8 years and 8 months.
21. I take the recommended 8 months’ imprisonment for each count of armed with a dangerous weapon (x3) appropriate and take 4 weeks’ imprisonment for threatening words.

Sentence Imposed

22. The defendant is convicted and sentenced as follows:
    • (i) Attempted murder – 8 years and 8 months;
    • (ii) Armed with dangerous weapon (x3) – 8 months’ imprisonment for each count concurrently; and
    • (iii) Threatening words – 4 weeks’ imprisonment.
23. All sentences to be served concurrently less any time in custody.
    

JUSTICE TUATAGALOA

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^[1] Crimes Act 2013, section 104
^[2]Police Offences Ordinance 1961, section 25
^[3] Ibidtion 4(g)
^[4] Family Safety Act 2013, section tion 17
^[5] Police v Crichton [2019] WSSC 33