Police v Aiono [2020] WSSC 29 (29 May 2020)

THE SUPREME COURT OF SAMOA
POLICE v AIONO [2020] WSSC 29

Case name:	POLICE v TIFAGA AIONO male of Fasitoo Uta
Citation:	[2020] WSSC 29
Sentence date:	29 May 2020
Parties:	POLICE (Prosecution) v TIFAGA AIONO male of Fasitoo Uta Accused
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from: Order:	Accordingly, the accused is convicted and sentenced as follows, less time in custody: (i) Attempted murder to 2 years and 10 months imprisonment; and (ii) Armed with a dangerous weapon, 2 months imprisonment to be served concurrently. Given the accused’s mental health condition, the Mental Health Unit team will be required to administer his treatment once a month at Tanumalala during his sentence which is a relatively significant amount of time in prison. I commend the work of Doctor Tuitama and the Mental Health Unit team in caring for our mentally ill both in the community and in prison. I have witnessed their work in their assessments given to the Court, both in relation to this case, as well as many other cases, and in their treatment and handling of those with mental incapacity or intellectual impairment who appear before the Court
Representation:	A Matalasi for the Prosecution T Fagaloa for the Accused
Catchwords:	Attempted Murder Being Armed with a dangerous weapon
Words and phrases:
Legislation cited:	Crimes Act 2013, section 104 Police Offences Ordinance 1961, section 25
Cases cited:	Police v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 Police v Kobayashi [2017] WSSC 159 Police v Ah Kau ([2013] WSSC 139 (8 November 2013))
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TIFAGA AIONO male of Fasitoo uta
Accused

Counsel:
A Matalasi for Prosecution
T Fagaloa for the accused

Sentence: 29 May 2020

SENTENCE

The Charges:

1. The accused appears for sentencing on two charges:
   • (i) One charge of attempted murder contrary to section 104 of the Crimes Act 2013 which carries a maximum penalty of life imprisonment; and
   • (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 1 year imprisonment.
2. This sentencing was adjourned to allow defence Counsel to make submissions on the likely impact that mental illness has on sentencing.

The Offending:

3. According to the Summary of Facts accepted by the accused through counsel, on 5 April 2018, the accused struck the back of the victim’s head with a machete. They then wrestled over the machete when the accused tried to strike the victim again. The accused and the victim are cousins and were living in the same house at the time of the offending. The accused was upset with the victim because he suspected that the victim had removed his bedding and bag from another villager’s house in the plantation.
4. As a result of the offending, the victim sustained a deep laceration on the back of his head, being 16 cm long and 5 cm deep.

The Accused:

5. The accused is a 49 year old male from Fasitoo-Uta. He left after year 12 to seek employment to support his family and he has since worked in the family plantation. Both his parents have passed away and prior to the offending he lived with his aunty. He is not a first offender. He was imprisoned for 3 years in 2010 on a charge of attempted murder. The village mayor confirms that the family of the accused has paid his village penalty and he is banished from the village. He expressed remorse to Probation as well to Tuifagatoa Dr George Leao Tuitama (‘Doctor Tuitama’), who conducted his psychiatric assessment. The accused told Probation that he has mental health issues. This is confirmed by his aunt who is the mother of the victim as well as his first cousin.
6. According to Doctor Tuitama, the accused suffers from paranoid schizophrenia and has been a known patient of the mental health services since 8 March 2010. The accused was on regular monthly treatments with a depot antipsychotic until his last treatment in February 2015. Doctor Tuitama says he was lost to follow up until Police brought him back in July 2018 and his treatment resumed.
7. Doctor Tuitama also says that the lapse of his treatments from February 2015 might have contributed to him committing the crime. He says the accused requires regular counselling and anger management techniques and that his ongoing compliance to his monthly treatment would assist in preventing a similar event in the future.
8. The accused told Doctor Tuitama that he assaulted the victim because he was shooting at his family with a rifle. He says when the victim dropped the rifle inside his house, he then struck him across the back. He told Probation that the victim had been discharging a gun.

The Victim:

9. The victim is the cousin of the accused. A victim impact report was not provided as he passed away last year from an unrelated cause.

Aggravating features:

10. The aggravating features of this matter are:

The victim and you are family members related by blood and the attack occurred within the context of a domestic relationship (section 17(1), Family Safety Act 2013)

The use of the machete as a weapon;

the attack was to the back of the head indicating that the victim was caught off guard to a degree;

the injury suffered by the accused was very serious; and

the level of premeditation given the assault from the back of the victim.

The mitigating features:

11. In respect of the offending, there are no mitigating factors.
12. In respect of the mitigating features personal to the accused, I accept as a significant mitigating factor that the accused was not having any treatment by the Mental Health Unit at the time of the offending. Such treatment improves “urgent and serious psychotic features” according to Doctor Tuitama. Therefore his mental illness entitles him, in my view, to a significant discount. This is in line with section 7(2)(d) of the Sentencing Act 2016 which requires me to take into account as a mitigating factor, that the accused had at the time the offence was committed, diminished intellectual capacity or understanding.
    13. I also accept in mitigation what Doctor Tuitama said in his report of 5 March 2020 that the accused is remorseful and understands now that there might have been another way to deal with the situation.

Discussion:

14. Prosecution seeks a sentencing start point of 11 years imprisonment with an uplift of 1 ½ years for his previous convictions. Prosecution submits that given the circumstances of the current matter, there is nothing that warrants a departure from the usual sentencing policy for attempted murder cases in domestic settings involving the use of a machete.
    15. Prosecution has made no submissions on the accused’s mental health issues. With all due respect, this should be avoided in the future. Prosecution’s submissions on sentencing often guide the Court as they are well considered and thoroughly researched. I encourage Prosecution to include in the submissions, where appropriate, their position on mental incapacity as a mitigating factor. This will guide the Court in coming to an appropriate discount.
16. Defence Counsel argues that the Court should consider an opportunity for the medical and rehabilitation treatment of the accused. Counsel submits a suitable starting point is within Band 2 of Police v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, which is between 5-10 years.
    
    17. Prosecution’s approach in Police v Kobayashi [2017] WSSC 159 is preferred. In that case Justice Clarke said “ Prosecution through Mr Tagaloa however also accepts that the approach in Police v Ah Kau ([2013] WSSC 139 (8 November 2013)) for mental illness is also available to the Court”.
    18. Justice Clarke in Kobayashi said;

“Sentencing of an accused suffering from mental ill health has been considered by the Courts in a number of judgments including Police v Nielsen [2014] WSSC 22; Police v Ah Kau [2013] WSSC 139 and more recently in Police v Poasa [2017] WSSC 59 (10 April 2017). In Police v Nielsen, His Honour Sapolu CJ referred to the New Zealand case of Edri v R [2013] NZCA 264 delivered by Dobson J and stated:

“19. Further on at para [15] , Dobson J says:

“In E (CA 689/10) v R [2010] NZCA 13; (2011) 25 CRNZ 411), the Court reviewed a range of discounts that have been treated as appropriate by this Court when mental illness has couted to t to the offending, in a range of 12% to 30%. The review also included R v Gordon CA 276/04, 16 December 2004, in which combined discounts taking into account mental illnes othetors tors were set at t at 50% of the starting point. In that somewhat exceptional case, a mother was convicted of the manslaughf her two month old baby when suffering from post-natal depression and after telling nursesurses and others of her thoughts of harming her baby”.

His Honour Sapolu CJ went on to say:

“Even if I am not satisfied that there was any link between the accused’s epileptic condition and the offending, the authorities clearly show that the ill-health of an accused can mitigate a sentenc221;

In P>In Police v Ah Kau, His Honour Nelson J sentenced an accused suffering from a mental health illness to imprisonment. Nelson J stated:

“...Had the defendant been aal defendant without the sohe sort of mental incapacity that this defendant has, he would have expected to receive a sentence of somewhere between 6 to 8 years in prison. Appropriately discounted for mitigating factors. But considering the defendants’s mental status and the other relevant facts of his case, I have come to the conclusion that the minimum term the Court can impose on the defendant would be a period of at least 2 years in prison taking into account his guilty plea and other relevant mitigating factors.”

19. The Court has for a long time now in sentencing offenders for attempted murder, used the case of R v Taueki, in which the New Zealand Court of Appeal set out sentencing tariffs for the offence of causing grievous bodily harm.
20. I adopt as an appropriate start point for sentence 9 years imprisonment on the charge of attempted murder which I take as the lead charge. This is within Band 2 of R v Taueki. For his remorse, I deduct 12 months leaving 8 years imprisonment. I deduct 6 months for the village penalty. For his mental health condition, I deduct 2 ½ years. In the circumstances including his personal circumstances, mercy is also appropriate with a deduction of 12 months. For his guilty plea, I deduct 14 months. That leaves 2 years and 10 months imprisonment.
21. Accordingly, the accused is convicted and sentenced as follows, less time in custody:
    • (iii) Attempted murder to 2 years and 10 months imprisonment; and
    • (iv) Armed with a dangerous weapon, 2 months imprisonment to be served concurrently.
22. Given the accused’s mental health condition, the Mental Health Unit team will be required to administer his treatment once a month at Tanumalala during his sentence which is a relatively significant amount of time in prison. I commend the work of Doctor Tuitama and the Mental Health Unit team in caring for our mentally ill both in the community and in prison. I have witnessed their work in their assessments given to the Court, both in relation to this case, as well as many other cases, and in their treatment and handling of those with mental incapacity or intellectual impairment who appear before the Court.
    

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN