Police v Matagi [2022] WSSC 6 (8 March 2022)

SUPREME COURT OF SAMOA
Police v Matagi [2022] WSSC 6

Case name:	Police v Matagi
Citation:	[2022] WSSC 6
Decision date:	08 March 2022
Parties:	POLICE (Prosecution) AND MASUA MATAGI male of Aele-fou and Faleula. (Defendant)
Hearing date(s):
File number(s):	Charging document dated 01/11/21
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On the charge of causing intentional grievous bodily harm convicted and sentenced to four (4) years in prison. On the second charge of armed with a dangerous weapon convicted and sentenced to six (6) months in prison, concurrent term. That means a total term of four (4) years beginning today.
Representation:	E Tiitii for prosecution Defendant in person
Catchwords:	- Grievous bodily harm – armed with a dangerous weapon – Sentencing Bands – previous conviction
Words and phrases:
Legislation cited:
Cases cited:	R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 Tele’a v National Prosecution Office [2017] WSCA 4
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

MASUA MATAGI male of Aele-fou and Faleula.
Defendant

Counsel:
E Tiitii for the prosecution
Defendant in person
Sentence: 08 March 2022

S E N T E N C E

1. The defendant has entered a guilty plea to two charges: firstly that at Aele-fou on 10 July 2021 he did with intent to cause grievous bodily harm, cause grievous bodily harm to Logoitino Logoitino a male of the same village. The second is that same date same place he was armed with a dangerous weapon namely a glass cup not being so armed for a lawful purpose.
2. The Police Summary of Facts which the defendant has admitted says he is a 41-year-old male of Faleula and Aele-fou married with children, employed as a carpenter. The victim is his wifes cousin and is a 29-year-old male of Aele-fou also married with children and employed by the Ministry of Agriculture as a ‘teu fanua’ at Nuu.
3. On 10 July at Aele-fou around 10:00 o’clock at night the defendant and victim were drinking Rover Vodka on a concrete foundation in front of the defendants house. These two people have become two more victims of Rover. But the Court is encouraged to see that the Government is making efforts in response to its concerns to address the problems highlighted by the unregulated consumption of these jet-fuel mixtures.
4. During the drinking session the defendant walked to his house and returned a little time later and asked the victim for a cigarette as the victim had been smoking. The victim told him there were no more cigarettes and this angered the defendant. The defendant grabbed the Rover and the glass mug that they were using to drink the Rover with and walked to his house. The defendant held the glass mug in his right hand. The victim followed closely behind him and tried to take back the Rover from the defendant. The defendant turned around to face the victim and punched him in the left eye with his right hand which held the glass mug. The mug shattered injuring the defendants right hand and the victims left eye. The victims injury was catastrophic and has resulted in permanent loss/ blindness in his left eye.
5. The Victim Impact Report indicates the victim spent three (3) months in hospital recovering from the injury. And now suffers headaches when exposed too long to sunlight which has had a significant impact on his ability to work as a ‘teu fanua’.
6. The Victim Impact Report also records that the defendant and his family have made no effort to apologise to the victim or to help with his medical expenses. The Report says the following:

“O se vaega tupe sa a’afia ai, o lea sa fa’atupe uma e a’u ma lo’u aiga e aunoa ma se fesoasoani mai o le o loo molia nei. O se tupe a’afia fa’ata’ita’i e le mafai ona maua se tau manino. Ae a fua atu i le umi sa taofia ai ma tausavali mai i le falema’i e fai lava si telē o se tupe ua fa’aalu ai. E oo mai le taimi nei e le’i oo atu lava le ua molia e fa’atoese pe fesoasoani atu i se a’afiaga mo se itu tau seleni i le taimi a’o o’u fa’ataotolia i le falema’i. E leai foi se tasi o lona aiga na oo atu ma fa’atoese e tusa ma le manu’aga lea ua ou a’afia tumau ai. Ua ou malie e fa’ailoa atu lea tulaga mo le silafia e le Fa'amasinoga ma o le a tuuina atu pea mo se fa’aiuga, e tusa ai ma se a’afiaga tumau ua a’afia ai nei lo’u tagata.”

7. The defendant told me in his plea in mitigation last time this matter was called that in fact an apology had been made to the victims father and even submitted an unsigned undated letter on plain paper to the Probation Service purporting to be from the father confirming the apology. The defendant should know that the Probation Service visited the victims father who denied writing such a letter and denied that there was any apology. The defendant is not helping himself in trying to mislead the Court on such an important issue.
8. Sentencing of grievous bodily harm cases are carried out in accordance with the Sentencing Bands stipulated in the case of R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 as applied in this jurisdiction by cases such as the Court of Appeal decision in Tele’a v National Prosecution Office [2017] WSCA 4. There the three Bands approach is set out but subject to a scaling down to reflect the fact that in this country the maximum penalty for grievous bodily harm is ten (10) years in prison.
9. The Courts sentence must reflect those matters as well as what is specified in sections 5 to 7 of the Sentencing Act 2016. And in particular must hold the defendant accountable for his action and promote in him a sense of taking responsibility for what he did to the victim, must also denounce his conduct as unacceptable and serve as a deterrent for him personally and to all others generally. It must also provide for the interests of the victim who is now permanently maimed.
10. The aggravating factors of the offending are referred to in the prosecution submission and they include the seriousness of the injury caused, the degree of violence involved in that the blow delivered was sufficient to shatter the glass mug, the use of a weapon namely a glass mug and the targeting of the strike because the blow was directed to the victims face obviously designed to inflict maximum damage.
11. Taking into account all relevant factors and bearing in mind the maximum penalty of ten (10) years in prison. I consider the offending to be at the upper end of Band One sentence will start at five (5) years. I uplift that to six (6) years to reflect your recent and relevant previous convictions for assault and threatening words which you have also admitted. And to pay due regard to the horrific and permanent nature of the victims injury. From that six (6) years start point there are deductions you are eligible for that must be made as with all defendants.
12. Usually the first deduction for a defendant is for a clean record and previous good character. But you do not have a clean record and I am dubious about your previous good character. What I have read shows you have a history of family violence, you have appeared before the Family Violence Court and the Samoa Victim Support Group. I think you have a serious drinking problem. There will be no deduction for record/previous good character.
13. Had there been a proper apology there would have been a deduction to reflect that fact but the evidence before the Court is nothing was attended to by either you or your family. Had there been any real expression of remorse there would have also been room for leniency but your conduct shows no remorse; only an attempt to avoid the inevitable.
14. You did render an apology to the court at the last calling of this matter. But you are apologising to the wrong person and in view of your conduct and attempt to mislead this court I have no difficulty in concluding that your words are empty words.
15. The only two real factors in your favour Masua are the fact that you completed the Salvation Army six-week Psycho-education Alcohol and Drug Programme and the fact that you pleaded guilty. Your participation in the Programme tells me you are trying to rehabilitate yourself in an effort to control your problem. That is a good thing and when you have served your prison term I suggest you give up alcohol altogether. The fact that you have pleaded guilty is also in your favour because that has saved the courts limited time and precious resources investigating this matter.
16. For the first matter I will deduct six months from your start point leaves a balance of five and half (5½) years in prison. For the second matter of your guilty plea I will give you the usual deduction of twenty-five percent (25%) from the balance of your sentence, that works out to be around sixteen and half (16½) months, leaving a balance of forty-nine and a half (49½) months in prison. I will round that down to forty-eight (48) months.
17. On the charge of causing intentional grievous bodily harm convicted and sentenced to four (4) years in prison.
18. On the second charge of armed with a dangerous weapon convicted and sentenced to six (6) months in prison, concurrent term. That means a total term of four (4) years beginning today.
    

JUSTICE NELSON