Police v Tyrell [2020] WSSC 30 (27 May 2020)

SUPREME COURT OF SAMOA
Police v Tyrell [2020] WSSC 30

Case name:	Police v Tyrell
Citation:	[2020] WSSC 30
Sentence date:	27 May 2020
Parties:	POLICE v FERETI TYRELL male of Vailoa Faleata and Taga Savaii
File number(s):	S76/20
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	On the one (1) charge of attempted murder, you are convicted and sentenced to 4 years imprisonment. The time that you have spent in custody following your guilty plea and pending sentence is to be deducted from that term.
Representation:	Ms A. Matalasi for Prosecution Ms L. Taimalelagi Strickland for Accused
Catchwords:
Words and phrases:	Attempted Murder
Legislation cited:	Crimes Act 2013 s.104
Cases cited:	Police v. PS [2018] . Police v. Peters [2018] Police v. PS [2018]
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

POLICE v FERETI TYRELL male of Vailoa Faleata and Taga Savaii.
Defendant

Counsel:
A. Matalasi for Prosecution

L. Taimalelagi Strickland for Accused

Sentence: 27 May 2020

ORAL SENTENCING OF JUSTICE ROMA

Charge

[1] You appear for sentence on one (1) charge of attempted murder contrary to s104, Crimes Act 2013 which carries a maximum penalty of life imprisonment. You pleaded guilty to the charge on 2 March 2020.

Offending

[2] From the prosecution summary which you accept through Counsel, the offending took place in the evening of 14 January 2020.

[3] The victim is your defacto partner from whom you were separated at the time of the offending. You have 2 children who were living with the victim at Magiagi whilst you were living at Vaigaga. At times during your marriage, you would physically and verbally abuse the victim when you are intoxicated.

[4] On the day before the incident, you saw photos of the victim with her new partner on facebook. You were outraged and called to confront her. During the conversation, you threatened to come to her workplace and stab her.

[5] On the following evening, 14 January 2020, you were drinking at your place at Vaigaga whilst the victim was working the night shift which finished at 9pm. Around 9pm, still angry at the victim, you retrieved a kitchen knife from home and caught a taxi to her workplace, Farmer Joe Supermarket at Fugalei.

[6] Upon arrival and parked from a distance, you saw the victim and her work colleagues sitting outside waiting to be dropped off home. You got out of the taxi and approached the victim. She tried to get up but you pulled her hair and stabbed her on her left arm. She stood up immediately again and ran inside the store. You chased after her and stabbed her a second time on her back.

[7] A security guard stopped you from entering the shop and from pursuing the victim further. You then left the scene and returned home. Police were called to the scene and they took the victim to hospital.

[8] As a result of your offending, the victim sustained the following injuries which the attending doctor found as superficial and assessed as being non fatal.

• (1) stab wound to the back (right flank – 2mm*3mm);
  • (2) stab wound to posterior left arm

[9] You admitted in an interview with police the following morning that “ ... o le mea ga ga ou sau ai agapo, ou ke magao ia oki lo’u koalua oga e kiga laga mea ua fai ia a’u”.

[10] In the pre sentence report as well as the submissions by your Counsel, you say that although you and the victim were living separately, you were still in a relationship and on the victim’s invitation, you would spend time with her and your children at Magiagi. It was only later that you found out that the victim was living at Toamua with a new partner; that the children were still at Magiagi with her family; and that you saw pictures of the victim and her new partner on facebook, that you realised the sad state that your relationship was in.

Victim

[11] The victim is a 29 year old female. She is your defacto partner and you have 2 young children. She confirms in the Victim Impact Report being scared when she was attacked and feeling the pain when she was taken to hospital. She was discharged the same evening and it took 11 days for her injuries to heal. She blames herself for what happened and regrets the huge impact on your children because you were responsible for looking after them whilst she attended work.

[12] The victim further confirms that reconciliation has taken place, that your family had carried out an ifoga, accepted by her family and that you plan to get back together given the impact this incident and your offending has had on your family and young children. She is also in Court this afternoon in support of you.

Aggravating Factors

[13] In relation to your offending, the following are the aggravating factors:

• (i) Planning and premeditation – the incident followed verbal arguments between you and the victim. On the evening of the incident, you were drinking at your home at Vaigaga, still angry at the victim, you retrieved a kitchen knife, caught a taxi and travelled all the way to Fugalei in time for her to finish work. You had the taxi parked from a distance and when you saw her outside with her colleagues, you approached and carried out the attack;
• (ii) Use of a lethal weapon – the use of a kitchen knife caused the victim injuries and was likely to cause fatal and life threatening injuries had you not been stopped from pursuing her further;
• (iii) Number of blows – you stabbed the victim twice, firstly when she was seated on the ground and about to get up and secondly when she ran inside the store and you gave chase;
• (iv) The offending was an incident of domestic violence;
• (v) Impact on the victim - Apart from the injuries, your offending has also impacted the victim and your children in the way explained in the VIR.

[14] There are no aggravating factors personal to you as Offender.

Mitigating Factors

[15] There are no mitigating features of your offending.

[16] The mitigating factors personal to you as Offender are:

• (i) Early guilty plea;
• (ii) Ifoga carried out by your family and accepted by the victim’s family;
• (iii) Personal Circumstances – You are the youngest of 4 siblings. Your father has passed away and your mother continues to live in Taga, Savaii. She is also in Court this afternoon in support of you. You ended your formal education at Year 11 level. You are now 24 years of age, in a defacto relationship and have 2 young children aged 3 and 4 years whom you have been looking after as your partner goes to work. There are testimonials from your mother, the matai of your family and the village representative of Vailoa Faleata. They speak highly of you and your service to your family and the village. I accept that you are genuinely remorseful. You are also a first offender.

Discussion

[17] This is another serious case of domestic violence. It involved you being intoxicated and going to your partner’s workplace with a kitchen knife in time for her to finish and attack her in the presence of her work colleagues who fortunately managed to stop you from pursuing her further. Whilst the material before me points to your partner’s unfaithfulness as a factor and she also blames herself for what happened, it certainly does not justify your actions and will never be an excuse for any similar response. The saddest thing however is the damage it causes on the family unit, especially the victims and the young children.

[18] As Nelson, J says in Police v. PS [2018] WSSC 63 (25 April 2018):

• “The damage that domestic violence inflicts on families and victims is akin to a stone being cast into the still waters of a lake. It has a ripple effect not only upon those immediately affected but on all those surrounding them. And its spread is capable of reaching the remote corner of every family and community ... ”

[19] The purpose of the sentence I impose is to hold you accountable for your actions and the harm caused to your partner, denounce your conduct and deter you and other males from this sort of behaviour. I must also have regard to the gravity and seriousness of this kind of offending. In saying that, there is no question in my mind that a custodial sentence is warranted. The real issue is how long is appropriate for the circumstances of your case. Again I refer to the remarks of Nelson J in PS where he said:

• “ ... The message from the Courts of this country must be unequivocal and must continue to be sent to the public and to people like this defendant. This sort of behavior is deserving of only one punishment, a term of imprisonment reflecting the circumstances of the case and the seriousness of the conduct of the offender.”

[20] Prosecution seeks a starting point of 10 years. They refer to the case of Police v. Peters [2018] WSSC 4 (24 January 2018) where the defendant caused the victim stab wounds using a kitchen knife and the Court adopted a starting point of 7 years. They argue an increase in starting point in accordance with Police v. Alauni [2014] WSSC 100 (22 September 2014) where the Court adopted a 10 year starting point on the defendant’s attempt on the life of his ex wife’s partner. In that case, the defendant had entered the victim’s house and inflicted serious injuries to the victim’s stomach requiring 8 stitches, and to his arms and mouth requiring 4 stitches.

[21] Your Counsel on the other hand seeks a starting point of 8 years. She relies on Police v. Soi [2014] WSSC 191 (12 November 2014) and Police v. PS [2018] WSSC 63 (25 April 2018). Both cases involved male defendants who were in domestic relationships with their female partner victims. In Soi, the Court adopted a starting point of 10 years with an upgrade of 3 years because of the savagery and pre planned nature of the attack. In PS, the Court followed Soi, adopted 10 years with an upgrade of 3 years to reflect the savagery of the attack on a defenceless woman using a weapon that the defendant pre carried to the scene.

[22] Compared to your case, I agree with your Counsel that the gravity of the offending in Soi and PS were much more serious; they involved multiple blows which caused multiple fatal and life threatening injuries. In Soi, the victim’s injuries included “a large number of lacerations including 2 to the forehead and skull, deep enough to expose the bone, one large cut over the right eyebrow, large wound to the neck near the jugular vein and carotid artery, large incision wounds to the arms and hands as well as deep wounds to the right chest and trunk of body, large cut to the right lower leg, patient bleeding profusely, amount of blood loss unknown.”

[23] In PS, the injuries inflicted included “multiple stab wounds including to the left of the jaw, right side of the neck, left upper breast down to her rib bones, left forearm also right down to the bone, left lower abdomen and left thigh.”

[24] In your case, the victim’s injuries were 2 superficial stab wounds to the back and posterior left arm which were assessed as being non fatal.

[25] Taking all those matters into account including the fact that this is a domestic case of attempted murder, I adopt 9 years as the appropriate starting point. I deduct 12 months for the ifoga and reconciliation that has taken place. I deduct a further 12 months for your personal circumstances including the fact that you are a first offender. I deduct a further 12 months for your remorse leaving a term of 6 years. I deduct a further 2 years being a third of that term for your earliest guilty plea, leaving an end sentence of 4 years.

Result

[26] On the one (1) charge of attempted murder, you are convicted and sentenced to 4 years imprisonment. The time that you have spent in custody following your guilty plea and pending sentence is to be deducted from that term.

. JUSTICE FEPULEA’I A. ROMA