Police v Pasila [2020] WSSC 61 (15 September 2020)

SUPREME COURT OF SAMOA
Police v Pasila WSSC 61

Case name:	Police v Pasila
Citation:	[2020] WSSC 61
Sentence date:	15 September 2020
Parties:	POLICE v SOO PASILA male of Fasitoo tai and Nofoalii.
File number(s):	S55/20 and S56/20. .
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court Samoa Mulinuu
Judge(s):	Justice Fepulea’i Ameperosa Roma
On appeal from:
Order:	On the charge of attempted murder, you are convicted and sentenced to 8 years’ imprisonment. On the charge of being armed with a dangerous weapon, you are also convicted and sentenced to 2 months’ imprisonment. Both sentences to be served concurrently. The time that you have spent in custody is to be deducted from that term.
Representation:	Ms F. Ioane for Prosecution Ms I. Sapolu for Accused
Catchwords:	attempted murder –aggravating features – being armed with a dangerous weapon – maximum penalty – mitigating factors – starting point for sentence - sentence
Words and phrases:	gravity of the offending and seriousness of the injuries
Legislation cited:	Crimes Act 2013, section 104 Ordinance 1961 section 25. Police Offences Ordinance 1961
Cases cited:	Police v. Tapaleao Soi [2014]; Police v. Tusitala Su’a and Tipaleia Taaseu; Police v. Kepaoa [2017]; Police v. Lama Kobayashi [2017]; Police v. Mika [2014].
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

SOO PASILA male of Fasitoo tai and Nofoalii.
Defendant

Counsels: Ms F. Ioane for Prosecution

Ms I. Sapolu for Accused

Sentence date: 15 September 2020

SENTENCING OF JUSTICE ROMA
Charges

[1] Following a defended hearing on the 15^th to 17^th and 20^th July 2020, you were found guilty of 2 charges by a unanimous verdict of the panel of assessors. The first is attempted murder contrary to s104, Crimes Act 2013 which carries a maximum penalty of life imprisonment. The second is one of being armed with a dangerous weapon contrary to s25, Police Offences Ordinance 1961, which carries a maximum penalty of 1 year imprisonment.

Offending

[2] The offences arise out of an incident which occurred inland of Nofoalii on the 13^th January 2020. Prosecution had called 10 witnesses. You elected not to give evidence or call witnesses in your defence.

[3] From the evidence, the following is a summary of what happened:

(i) You and the victim are married into the same family; your wives are sisters;
(ii) They had an argument on the day of the incident. Whilst you and the victim knew of what happened between them, you were never involved when it happened;
(iii) The victim had been to his plantation earlier in the day and returned home for lunch;
(iv) Later in the afternoon, he went back to his plantation which is about 300 meters away and was resting inside a shelter when you approached him;
(v) You were holding a machete. You struck the victim without warning and severed his right forearm when he held it up in his defence;
(vi) Immediately, he got up and jumped out of the shelter and ran but you continued to pursue him;
(vii) You struck him twice more causing deep lacerations on the right side on his back;
(viii) The victim who by then was covered with blood, managed to reach Filipo Tupuola’s house nearby;
(ix) With the help of another neighbour Afasene Liki, Filipo took the victim to Leulumoega Hospital where he was first treated before being transferred to the main hospital at Motootua.

[4] At trial you pleaded self defence. From the verdict of the assessors, it is clear that they were satisfied that you had not acted in self defence.

[5] According to the medical evidence and medical report tendered as Exhibit P1, the victim when treated appeared pale but fully conscious. The report also confirms that the victim sustained deep lacerations to his upper and lower back as well as a completely severed amputated right forearm. The extent is shown in photos tendered as Exhibit P2 at trial. The medical report also explains how the victim went into hypovolemic shock due to excessive bleeding from the injuries.

Victim

[6] The victim is a 50 year old male formerly of Nofoalii but now of Tuanai. In the victim impact report he explains the impact of your offending and confirms that he was hospitalised for 3 days and became an outpatient for 4 months after. Part of the report reads as follows:

“Aafiaga o le tino, o se aafiaga ua i ai nei talu mai le aafiaga ua i ai lo’u lima ma lo’u tua. Ua tau le maua se moe i le po. E faalogoina pea le gaoi ma le tiga o lo’u lima lea ua motu, aemaise ai le vaega o lo’u tua lea e i ai le ponaivi malo. Ua fai nei foi ma ma’i tumau le faalogoina pea o le gaoi ma le tiga o vaega o lo’u tino sa aafia. E oo i ni a’u feau masani na faatino ua le toe tutusa le malosi e faatino ai ona o lea ua tasi le lima e mafai ona faia ai.”

[7] As to the psychological impact, the report says as follows:

“O se aafiaga o le mafaufau ua i ai nei talu ai lo’u aafia ai, o taimi uma lava e vaai ai i lo’u lima lea ua motu, e oso mai lagona o le ita ma le tiga i le tulaga ua oo i ai.”

[8] As to reconciliation, the report says:

(2) “E oo mai i le taimi nei e lei oo mai lava le ua molia poo nisi o lona aiga e tuu atu se faatoesega tusa ai ma le aafia ai. Ao lo’u aiga e aofia ai lo’u aiga potopoto e lagona le loto faamagalo ona o mata o lo’u toalua ma la’u fanau.”

Accused

[9] From the material before me, you are 35 years of age. You are the only child of your parents. Your father passed away in 1993 and you were then looked after by your grandparents. Your formal education ended at Secondary level. You are married and a father of 4 children. You have been working the plantation to support your family. You are also responsible for looking after your children when your wife attends school as a Primary School teacher.

[10] You have a previous conviction for causing injury and being armed with an object for which you were convicted and handed a sentence of 18 months’ supervision. That sentence was handed down in February 2016.

[11] In the pre-sentence report, you explain that you have been in custody since your offending and never had the opportunity to apologise to the victim. When granted the opportunity to address the Court, you expressed remorse and apologised to the victim although the victim was not present.

Aggravating Factors

[12] In relation to your offending the aggravating features are:

(i) There was pre meditation. From the evidence, you walked all the way to the victim’s plantation about 300 meters with a machete and attacked him there without warning;

(ii) The use of a weapon. You used a machete that you carried to the place of the offending to inflict serious injuries;

(iii) The vulnerability of the victim. The victim was seated inside the shelter and had his back towards you. Whilst he saw you coming, he had no idea that you would attack him;

(iv) The number of strikes. The first severing the victim’s right forearm followed by 2 more on his back when you continued to pursue him;

(v) The attack was unprovoked;
(vi) There was persistence in the assault. Even after severing the victim’s right forearm with the first strike, you chased after him as he ran for help, striking him twice more on the back;
(vii) The seriousness of the injuries. The strikes caused deep lacerations on the victim’s right back and amputated his right arm;
(viii) The impact of the offending as referred to in the victim impact report.

[13] As Offender, an aggravating factor is your previous conviction in 2016 for a related charge of causing injuries and being armed. You now appear for sentence on a related but more serious charge of attempted murder.

Mitigating Factors

[14] In relation to your offending I find that there are none.

[15] In relation to you as offender, I take into account the penalty that was imposed by your village council. The material before me confirms that you paid a fine of $2,000.00 and presented 50 boxes of tinned fish to the village council. I also take into account your expression of remorse and plea for leniency.

Discussion

[16] The sentence I impose must reflect the purposes of sentencing under s5, Sentencing Act 2015. These are to hold you accountable for the harm done to the victim; promote in you a sense of responsibility for and the acknowledgement of that harm; denounce your conduct; protect the community and deter you or other persons from committing the same offence.

[17] There is no question in my mind that in the circumstances of your case, a custodial sentence will serve those purposes. Prosecution recommends a starting point of 13 years which would be in Band 3 of the sentencing guidelines identified in the New Zealand case of R v. Taueki [2005] NZCA 174; [2005] 3 NZLR 372, and applied by our Courts in a number of sentencing decisions.

[18] Your Counsel submits that an appropriate starting point should be in mid range of Band 2 or a term of 7 years’ imprisonment.

[19] I have carefully reviewed the authorities referred to in prosecution’s sentencing memorandum. The case of Police v. Tapaleao Soi (12 November 2014); Police v. Tusitala Su’a & Tipaleia Taaseu; Police v. Kepaoa [2017] WSSC 97 (29 June 2017); Police v. Lama Kobayashi (8 December 2017) and Police v. Mika [2014] WSSC 200 (24 November 2015). The same cases are also addressed by your Counsel in her submissions. Whilst the circumstances, differ the offending in each on those cases involved the use of a machete.

[20] Taking into account the gravity of your offending and seriousness of the injuries and in view of the sentences imposed in the cases referred to by Prosecution and your Counsel, I adopt 10 years as the appropriate starting point. To that term, I add 6 months for your previous and related conviction, and that makes it 10 years and 6 months.

[21] From that term I deduct 18 months for the fine and penalty that was imposed by village council. I deduct a further 12 months for your expression of remorse and your plea for leniency. That leaves a terms of 8 years.

Result

[22] On the charge of attempted murder, you are convicted and sentenced to 8 years’ imprisonment. On the charge of being armed with a dangerous weapon, you are also convicted and sentenced to 2 months’ imprisonment. Both sentences to be served concurrently. The time that you have spent in custody is to be deducted from that term.

Thank you, you may stand down.

JUSTICE FEPULEAI A ROMA