Police v Leota [2020] WSSC 69 (23 October 2020)

SUPREME COURT OF SAMOA
Police v Leota [2020] WSSC 69

Case name:	Police v Leota
Citation:	[2020] WSSC 69
Decision date:	23 October 2020
Parties:	POLICE v TA’ALO LEOTA male of Letogo and Safotu Savaii.
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:	- On the charge of intentional grievous bodily harm caused to your brother convicted and sentenced to 5 years in prison, but your remand in custody time is to be deducted. - On the charge of being armed with an axe convicted and sentenced to 6 months in prison concurrent term. - On the charge of using insulting words convicted and sentenced to 3 months in prison also concurrent term. - On the charge of stone throwing convicted and sentenced to 3 months in prison also concurrent.
Order:	- There are no other deductions or adjustments that need to be made to your sentence. In respect of the mitigating factors these deductions amount to 2 years from the 7 year start point, leaves a balance of 5 years. - On the charge of intentional grievous bodily harm caused to your brother convicted and sentenced to 5 years in prison, but your remand in custody time is to be deducted.
Representation:	L Faasii for prosecution T Leavai for defendant
Catchwords:	- armed with a dangerous weapon – intentional grievous bodily harm – insulting words– pleaded guilty - provocation– throwing stones
Words and phrases:
Legislation cited:	Family Safety Act s.17(1)
Cases cited:	Tele’a [2017] WSCA 4
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TA’ALO LEOTA male of Letogo and Safotu Savaii.
Defendant

Counsel:
L Faasii for prosecution
T Leavai for defendant

Sentence:

S E N T E N C E

1. The defendant has pleaded guilty to a number of charges. The primary one being that at Letogo on 18 January 2020 he did with intent cause grievous bodily harm to Kiliona Finau the complainant in this matter. Also on the same date same place that he was armed with a dangerous weapon namely an axe as well as a stone neither of which were for any lawful purpose. He further pleaded guilty to using insulting words and throwing stones same date same place.
2. The Police Amended summary of facts states the defendant is a 24-year-old male of Letogo married. The victim is a 30-year-old male of Letogo and is his brother.
3. At the time of the offending the defendant was banished from the village of Letogo and had been prohibited from re-entering the village. The defendant disputed this part of the amended summary of facts but after hearing evidence from the defendant and the “tu’ua” (senior elder) and “pulenu’u” (village mayor) of the village of Letogo I am satisfied beyond reasonable doubt that when this incident occurred the defendant was banished having been so banished in December 2019 these events occurring on Saturday, 18 January 2020. The evidence further reveals that he was banished in December 2019 at the insistence of his mother who had been assaulted by the defendant and his wife.
4. I am also satisfied from what I have heard that the defendants mother subsequently forgave him and allowed him to return to the family home to live but this never received the approval of the village council. The evidence of both the tuua and the pulenu’u was they had warned the defendants mother about this. The evidence further reveals this is not the first time the defendant has been banished from his village. There was an incident in 2016 involving alcohol and narcotics leading to his banishment. The defendant had only been reinstated or “fa’aa’e” by matais of his family in July 2019. Less than six months later this incident occurred.
5. The Amended summary of facts relates that on the day of the incident the victim returned home from work and found the defendant at their house with their mother. The victim confronted the mother regarding the defendant, this upset her and led to her telling off the victim. Various members of the family including an aunt became involved in what was occurring leading to the victims uncle chasing the defendant out. The defendant then from a distance began swearing and using insulting words towards to the people of his family and threw rocks at the house.
6. Not content with that the defendant armed himself with an axe and approached the victim from behind. The victims cousin noticed the defendant approaching and warned the victim to watch out. The victim turned around but it was too late to dodge the blow from the defendant which hit the left side of the victims face. Family members intervened and stopped the assault. The victim was taken to hospital where it was noted he had sustained a deep laceration on the left side of his face requiring eight stitches. The defendant was arrested by the Police and taken to the Police Station interviewed and admitted to what he had done.
7. I will deal firstly with the most serious of the charges against the defendant the intentional grievous bodily harm caused by him to his brother. The offence carries a 10 year maximum penalty of imprisonment. The court accepts this matter has been reconciled between the defendant and his brother because the brother says in his Victim Impact Report:

“Sa o’o atu lo’u uso o loo molia nei ma fa’atoese atu ia a’u e tusa ai ma lo’u aafia, ma sa oo mai fo’i se lagona o le loto fa’amagalo ia te a’u, e le’o seisi foi o lo’u lava uso ma ou te talitonu foi ua ia lagonaina le salamo i le tulaga sa ia fa’atinoina.”

8. So the victim has done what any reasonable brother would do and forgiven the defendant for his actions. But this does not erase the fact that this was a violent assault by an out of control defendant on an unsuspecting and unarmed family member from behind.
9. Sentencing for cases of grievous bodily harm are by and large governed by Tele’a [2017] WSCA 4 where the court said at paragraph 33 that generally speaking grievous bodily harm from attacks with machettes which are recognized as common and serious result in a 4 to 6 years starting point. Weapon wise an axe is the equal of a machette and is arguably capable of inflicting greater damage. The court in Tele’a also recognized that where such offending takes place in the course of a domestic relationship such as between brothers living in the same household which is the case here, that s.17(1) of the Family Safety Act deems this to be a special aggravating factor.
10. A further aggravating factor is the fact that the defendants blow was aimed at the victims head and it is apparent from the Amended summary of facts that if the victim had not been warned by a cousin the injury could have been greater, possibly even fatal. The defendant arming himself with an axe also indicates a pre-meditated not reflective action. It is a further aggravating factor that at the time of this offending the defendant had been banished from the village meaning he should not have been in the family home in the first place.
11. I consider that in all these circumstances a 7 year start point for sentence is entirely appropriate to hold the defendant accountable for his actions, to denounce his conduct and to send the necessary message to the general public and the community at large about the courts attitude to such behaviour. In the hope that this will also deter the defendant himself from this type of conduct in the future.
12. It is clear from what I have read the defendant obviously has a drinking problem. But the court unfortunately is in no position to assist with fixing that and hopefully the prison authorities will reinstate some alcohol and drug rehabilitation programs that may be of benefit to this defendant and others like him. Ultimately the solution to the defendants problem lies in his own hands and my advice to you Ta’alo is if you act like this when you are drunk, stop drinking.
13. As indicated the start point for your sentence in the circumstances of your offending is 7 years in prison. But there are deductions to be made from that as highlighted by your counsel.
14. Normally a deduction would be made for a first offender status as well as a good background but in this particular case I cannot allow any deduction for previous good character. It is obvious you have a history of problems within your village and within your family. No son should ever raise his hand against his mother or his brother. You obviously have not been sufficiently schooled in the “tū and aganu’u fa’a-Samoa” (customs and traditions of the society that we live in) in this country which we as Judges of the country are entirely capable of safeguarding and applying in appropriate cases. Despite the incorrect and evidentially unsubstantiated view of some to the contrary. It also appears this is not your first court appearance because you have a previous conviction for burglary for which you were placed on probation.
15. I can however extend credit to you for the apology and reconciliation with your mother and your brother. The normal deduction of 6 months for that will be applied. I will make a further deduction of 18 months for your guilty plea even though you disputed the Amended summary of facts and the matter of banishment from your village. I do that in recognition of the fact that your plea demonstrates remorse and avoids the necessity for the victim and members of your family to have to relive these unfortunate events.
16. Your counsel has also suggested a further deduction for provocation. But on what I have heard I cannot accept there was evidence that you were somehow provoked. The amended summary refers only to the uncle chasing you unsuccessfully to which you retaliated by using foul language and stoning the family home. And then by attacking your unarmed brother from behind with an axe. Any suggestion of provocation is overwhelmed by your response.
17. There are no other deductions or adjustments that need to be made to your sentence. In respect of the mitigating factors these deductions amount to 2 years from the 7 year start point, leaves a balance of 5 years.
18. On the charge of intentional grievous bodily harm caused to your brother convicted and sentenced to 5 years in prison, but your remand in custody time is to be deducted.
19. On the charge of being armed with an axe convicted and sentenced to 6 months in prison concurrent term.
20. On the charge of using insulting words convicted and sentenced to 3 months in prison also concurrent term.
21. On the charge of stone throwing convicted and sentenced to 3 months in prison also concurrent.

JUSTICE NELSON