Police v Sani [2021] WSSC 3 (29 January 2021)

SUPREME COURT OF SAMOA
Police v Sani [2021] WSSC 3

Case name:	Police v Sani
Citation:	[2021] WSSC 3
Decision date:	29 January 2021
Parties:	POLICE (Prosecution) AND TOMI SANI male of Sataoa Safata. (Defendant)
Hearing date(s):	-
File number(s):	Charging document dated 23rd November 2020
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	- On the charge of grievous bodily harm convicted and sentenced to five (5) years in prison but any remand in custody time to be deducted. - On the second charge of armed with a dangerous weapon convicted and sentenced to nine (9) months in prison but that term to be served concurrent to your five (5) years.
Representation:	F Ioane for prosecution Defendant in person
Catchwords:	- Plead guilty - Grievous bodily harm – armed with a dangerous weapon – sentencing band
Words and phrases:
Legislation cited:
Cases cited:	Telea v National Prosecution Office [2017] WSCA 4
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TOMI SANI male of Sataoa Safata.
Defendant

Counsel:
F Ioane for prosecution
Defendant in person

Sentence: 29 January 2021

S E N T E N C E

1. The defendant has pleaded guilty to two charges: one that at Sataoa Safata on 06 November 2020 with intent to cause grievous bodily harm he did cause grievous bodily harm to the complainant a male of the same village. Second charge is that for these purposes he was armed with a dangerous weapon namely a bush knife.
2. The Police summary of facts which the defendant admitted at a previous calling of this matter says he is a 51-year-old male of Sataoa Safata single and is a planter providing for his family. The victim is a 25-year-old male of the same village.
3. On Friday 06 November at around 11:00 o’clock at night at Sataoa the victim was drinking with other boys celebrating the birthday of one of the matais of the village. Someone took the victims bag so he came to the road looking for the person he suspected. He arrived at the defendants house and saw the person he suspected drinking with the defendant. He approached the suspect and a dispute arose between the victim and the defendant, resulting in the defendant getting a machete and striking the victim on the head. A witness intervened to stop what was happening as the victim was severely injured by the attack.
4. The victim was rushed to Poutasi District Hospital where it was discovered that he had suffered two open wounds to the head and a superficial laceration to the chest. Photos of the injuries show them to be very deep, indicative of the force used in the strikes. The wounds also involved a lot of associated blood loss. Because of their severity the victim was transferred to the main hospital at Motootua where he was further treated and discharged about five days later.
5. The victims medical report notes the presence of “deep lacerations (in other words cuts) to the right and left parietal occipital region of the head (namely the top side of the head). There was also an underlying fracture to the right posterior parietal bone which is the outer bone of the skull.
6. There is no question the wounds were grave and live threatening and I am surprised the defendant was not charged with a more serious charge.
7. The court has also viewed photos of the weapon the sapelu used by the defendant and it is clear that because he is a fai-fa’atoaga it is kept in reasonably sharp condition.
8. The defendant told the Probation Office that he did not intend to cause such serious injuries as he was very drunk at the time. He said he was drinking that very popular alcohol called ‘Rover Vodka’ and when the victim confronted him it made him angry and he reached for his sapelu. He also says the victim swore at him but no evidence has been adduced or is contained in the Police summary of facts to support this contention. He is deeply remorseful for what he has done and he promises the court he will never do it again.
9. I accept Tomi that you are indeed remorseful. And that chances are you will not repeat this kind of conduct. But it does not alter the fact that you used a lethal weapon to twice strike the head of an unarmed man. Because there were two separate injuries that means two separate strikes. It is miraculous the victim did not suffer worse injuries.
10. I must also tell you that self-induced drunkenness and intoxication is never an excuse for breaking the law. The courts have warned the public time and time again on the dangerous of consuming ‘Rover Vodka’ and other seemingly unregulated spirits being mass produced and sold cheaply in this country. Alcohol which is so strong that we believe it belongs in the category of “jet fuel” because you do not need much of it to send you soaring to thirty-five thousand feet.
11. It is comforting however to note that after years of such warnings the Government has now finally passed the Alcohol Control Act 2020. Which has in section 2(1) objectives such as (a) regulating the sale and supply of alcohol by controlling its availability; (b) reducing the demand and consumption of alcohol and to minimise the harmful effects from abuse of alcohol; and in (e) to reduce alcohol-related problems of any nature; and in (f) to confirm the roles and responsibilities of parents and guardians, village councils and churches in applying the regulatory controls under this Act to achieve its objectives.
12. The court is obliged to observe that too many village councils are failing in their duties in this regard as seems to be the case here. Here the village council of Sataoa Safata seems to allow drunken men to freely wander around their village at 11:00 o’clock at night causing trouble and mayhem. Such conduct is completely unacceptable.
13. I am however certain my colleagues on the bench will join me in urging the newly established Alcohol Control Board under the new legislation in partnership with the Alii and Faipule and the Police to exercise the powers they have now been given under this new legislation. To help curb the unregulated manufacture and sale of these kinds of alcohol including their easy availability and access to the general public in village stores and elsewhere, at such ridiculously cheap prices which is their major appeal. In an effort to try and avoid the problems that the courts of this country regularly see coming before it.
14. The court has said before and it is worth repeating that the Covid pandemic is not here. The pandemic however that has long ago arrived in this country is the one involving alcohol. Which is an underlying cause of the majority of cases that come before the courts.
15. In respect of the defendant and this case I will deal firstly with the more serious of the two charges the charge of grievous bodily harm which carries a maximum penalty of ten (10) years imprisonment. The sentencing band for grievous bodily harm cases is well established by the Court of Appeal decision in Telea v National Prosecution Office [2017] WSCA 4 where the Court of Appeal says that save for the rare exception, grievous bodily harm attacks with a machete generally result in a start point of four (4) to six (6) years imprisonment.
16. The sentence in a particular case as is the case here must of course inter alia hold the defendant accountable for his actions and denounce his conduct as unacceptable to all Samoans. Must also send a deterrent message to all that if you do this kind of thing the court will not treat you leniently.
17. The attack here was particularly serious considering the nature of the attack and the fact that not one but two separate strikes were delivered to separate sides of the head. Both strikes causing severe and deep lacerations. The area of the body targeted by these strikes was not the body itself but the nerve center of the human body, the head its most vulnerable part. The use of a sharp and lethal weapon in the attack is also a relevant consideration as is the fact that it was on an unarmed and drunk man. The court further notes the frequency of attacks by drunken men on other men using weapons whether it be a stone or as here a sapelu, is becoming common place usually as a result of drinking parties and sessions going wrong. Furthermore according to the summary of facts from the Police accepted by the defendant it was a witness intervening in the assault that caused the defendant to cease his attack otherwise he may have well carried on. In my view all these factors justify an upgrade from the usual start point to a start point of seven (7) years in prison. And that is the start point that I will adopt for sentence for you Tomi.
18. From that start point you are entitled to deductions for mitigation factors which I will now make on your behalf. Usually the first one is for a good background and clean police record but as you know you have a drug conviction for which you served a prison term in previous years. But you do have a good background according to the Probation Office pre-sentence report of service to your aiga, to your alalafaga and to your community. Your father also appeared at the last calling and made a petition for leniency for you. For these matters I will deduct three (3) months from the start point of your prison sentence.
19. It has also been confirmed Tomi that an apology and reconciliation has been made this was referred to by your father. As well a village council penalty has been imposed and paid. These are the things that must be properly done in accordance with our tu and aganuu fa’a-Samoa and for these customary processes a six (6) month mitigation deduction will apply.
20. For your guilty plea which has saved the courts time and limited resources and which also shows your remorse for your actions I will deduct a further one (1) year and three (3) months from your sentence. These deductions total up to two (2) years from the start point of your sentence. There are no other deductions that you are eligible for Tomi or required to be made and I am satisfied the end sentence is commensurate with your offending.
21. On the charge of grievous bodily harm convicted and sentenced to five (5) years in prison but any remand in custody time to be deducted.
22. On the second charge of armed with a dangerous weapon convicted and sentenced to nine (9) months in prison but that term to be served concurrent to your five (5) years.
    

JUSTICE NELSON