Police v Gisi [2023] WSSC 4 (30 January 2023)

IN THE SUPREME COURT OF SAMOA
Police v Gisi [2023] WSSC 4 (30 January 2023)

Case name:	Police v Gisi
Citation:	[2023] WSSC 4
Decision date:	30 January 2023
Parties:	POLICE v ETEUATI TOELEIU GISI male of Salelologa
Sentencing date(s):	30 January 2023
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE TUALA-WARREN
On appeal from:
Order:	- The accused is convicted of attempted murder and sentenced to 1 year and 4 months imprisonment. - He is convicted of indecent assault and sentenced to 6 months imprisonment, to be served concurrently. - I ask Corrections that while he is serving his sentence he undergoes anger management an alcohol counselling. - Any time spent in custody to be deducted.
Representation:	V Faasii for Prosecution L Su’a-Mailo for the Accused
Catchwords:	Attempted murder – indecent assault – two victims – victim intoxicated – accused suffers anger issues – pre-meditation – use of machete – sentencing bands for grievous bodily harm.
Words and phrases:
Legislation cited:	Crimes Act 2013.
Cases cited:	Bragovits v National Prosecution Office [2017] WSCA 2; R v Taueki [2005] NZCA 174.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ETEUATI TOELEIU GISI male of Salelologa.
Accused

Counsel: V Faasii for Prosecution

L Su’a-Mailo for the Accused

Sentence: 30 January 2023

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of attempted murder, pursuant to s.104 of the Crimes Act 2013, which carries a maximum penalty of life imprisonment, and one charge of indecent assault pursuant to section 60 of the Crimes Act 2013 which carries a maximum penalty of 5 years imprisonment.
2. He entered guilty pleas to the charges through Counsel on 11 October 2022.

The offending

3. According to the summary of facts accepted by the accused, there are two victims of his offending. The first is Agnes, 22 years old and the second is Elisara, 11 years old. They all lived together at the home of the victim Elisara as Elisara’s father is the uncle of the accused.

Agnes

4. On 29 November 2021, the accused drank 5 big bottles of taula strong between 6-10pm. At around 10pm, the accused went to where Agnes was sleeping (on a grave inside the house) and got into her mosquito net. He pulled down her pants and touched her vagina. She woke up and chased him away. Agnes went into her bedroom and locked the door. The accused tried opening her bedroom door but it was locked so he got angry. His mother made his bed and once he got into the mosquito net she left to go to sleep.

Elisara

5. About 20 minutes later, the accused got up, he got a machete and walked into the room where Elisara was on his bed, lying on his stomach and playing games on his ipad. The accused hit Elisara with the machete and it hit the back of his neck. The accused then put his hand over Elisara’s mouth. Meanwhile Elisara was experiencing blurry vision and saw blood on his hand after touching his wound. Elisara pinched the accused’s arm causing the accused to loosen his hand over Elisara’s mouth then Elisara screamed. The accused left and hid the machete. Family members went to Elisara’s aid and saw blood dripping on his body and around where he was lying. They rushed Elisara to hospital.
6. The accused left in his father’s car which he then proceeded to drive erratically on the road, reverse into a police car and crash at the market. When he arrived home his father called the Police.
7. Elisara had a cut on the back of the neck (12cm x 5 cm), cut muscles on the back of the neck, and cut down to the neck bone. His wound was washed and sutured and he was given intravenous antibiotics to prevent infection. He was discharged from hospital 5 days later.

The accused

8. According to the pre-sentence report, the accused is 19 years old and was studying at Congregational Christian Church of Samoa Vocational School when this offending occurred.
9. His parents say that the accused has mental issues and should not be given alcohol. They say he needs professional help as he has always had issues with other children, even at school. Dr Tuitama carried out a mental health assessment and confirms that the accused suffers from anger issues and needs both anger management and alcohol rehabilitation therapy. He does not have any mental disorders.
10. The accused is a first offender.

The victims

Agnes

11. Agnes says she felt disgust and anger at the accused. She says that she is fearful because if she had not locked her door that night, she may have been the one attacked with the machete.
12. She says he has not apologised to her.

Elisara

13. Elisara was in bed and unable to go to school for a month. He continues to feel pain at the back of his neck when someone touches it or he bends down. He now avoids and is afraid of playing sports in case his injury gets affected. He says he no longer has the same strength or the same happiness which he used to get from playing with other children.
14. He says he was terrified when the machete hit the back of his neck and he felt blood pour down. He says he cried for his mother and said “I don’t want to die Jesus please help me”
15. The parents of the accused apologised to Elisara and his family. Elisara’s parents say they have forgiven the accused. Elisara says his anger at the accused has subsided but not totally as it is very hard for him to forget what happened.

Aggravating features of the offending (attempted murder)

16. It is aggravating that the accused used a weapon, namely a knife to inflict injury. This is a lethal and extremely dangerous weapon, potentially life threatening.
17. The victim of this offending was a child, 11 years old, extremely vulnerable and defenceless;
18. The victim was attacked in his home, where he was in bed, watching his ipad;
19. The victim was attacked by an older member of his household, breaching the trust the victim had in him;
20. The injury to the victim is very serious. It was a cut which required suturing and cut down to the neck bone and muscle.
21. The impact on the victim –he is a child who can no longer play with his friends and participate in sports because he is afraid of his injury being touched. He still feels pain a year after he was injured. No doubt this injury will affect him into the future, impacting on his quality of life.
22. The attack was premeditated as the accused got a machete, turned off the light of the bedroom before attacking the victim;
23. After the accused hit the victim, he then covered his mouth so that he would not scream instead of assisting him. He took active steps to prevent the victim from getting assistance immediately.

Aggravating features of the offending (indecent assault)

24. The victim was the aunty of the accused. This familial relationship aggravates this offending.

Mitigating Factors

25. I consider the following as mitigating factors;
    1. His age of 18 years at the time of the offending;
    2. His remorse;
    3. His previous good character;
    4. His personal circumstances;
    5. Reconciliation;
    6. Village penalty;
    7. His belated guilty plea.

Discussion

26. The Court of Appeal in Bragovits v National Prosecution Office [2017] WSCA 2, stated that;

“...in as in other countries, there is no guideline judgment for attempted murder in Samoa. This is because cases of this kind vary enormously, particularly in relation to the harm caused to the victim. This can vary from nothing (where for example the attempt involves a firearm but the bullet misses its target), to life threatening injuries as in this case. End sentences can also vary markedly, so that drafting a guideline for attempted murder sentencings can be problematic. Instead, particularly in the more serious cases it can be helpful to use a guideline for grievous bodily harm (GBH) offending, since attempted murder frequently involves the infliction of gross injuries, but with the added aggravating feature of an intent to kill which will necessitate an uplift to the starting point. In New Zealand, for example, the GBH bands in Taueki [3] are often used.

27. The Court of Appeal went onto say;

We note that in Police v Toli [4] and again in Police v Atonio, [5] the Chief Justice discussed whether the starting point for attempted murder should go up to at least 12 years and whether a range was required. While we generally agree with the Chief Justice’s comments in these cases, we are doubtful that an attempted murder sentencing guideline specific to Samoa is appropriate.

Were there to be one, it would need to recognise and accommodate the Sentencing Act 2016 passed in November 2016. It contains principles of sentencing, including:

6. Principles of sentencing or otherwise dealing with defendants - In sentencing or otherwise dealing with a defendant, the court must:

(a) ......

(b) ......

(c) impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the defendant make that inappropriate; and

(d) impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the defendant make that inappropriate.

It follows that in relation to the most serious of cases the starting point maximum must reflect the statutory maximum, here life imprisonment. Hence a range, as opposed to a single figure starting point, or more likely multiple bands of seriousness, would be required given that the crime of attempted murder can vary so significantly in terms of seriousness.

A Samoa specific guideline would also represent a departure from the approach taken in other jurisdictions. Moreover, it would require proper consideration and argument in the context of an appropriate appeal. For now, at least, we are satisfied that the use of an analogous GBH guideline is the better approach. We refer, by way of example, to a recent attempted murder sentencing decision in New Zealand (R v Owens [2017] NZHC 319) where the judge used the Taueki guidelines for GBH to good effect.

28. It is appropriate to consider the Taueki guidelines, bearing in mind that New Zealand has a lower maximum penalty for attempted murder (14 years).
29. In The Queen v Taueki [2005] NZCA 174, the Court of Appeal laid out the following guidelines;

Matters contributing to the seriousness of GBH offending

[31] We now turn to the features of offending which will be seen to contribute to the seriousness of the conduct and criminality involved in a GBH offence. We reiterate that the sentencing Judge will need to consider the combination of factors applying in a particular case, when assessing the appropriate sentencing band and the starting point within that band. The factors which we highlight are:

(a) Extreme violence: The extent of the violence involved in the offending will have an obvious impact on the level of criminality. Where any violent conduct is prolonged that will also be relevant, as will violence which is unprovoked or gratuitous. This reflects s 9(1)(a) and (e) of the Sentencing Act.

(b) Premeditation: The degree of premeditation and planning will also reflect criminality. Serious violence which can properly be classified as impulsive or a reaction to an unexpected event will generally be seen as less culpable than premeditated violence. This reflects s 9(1)(i) of the Sentencing Act.

(c) Serious injury: Where the injuries suffered by the victim or victims are very serious, a higher starting point than in cases of minor injury will be called for. Section 9(1)(d) of the Sentencing Act applies. This is particularly the case where the injuries are potentially fatal or are such as to cause long term or permanent disability impacting on the victim’s quality of life. Counsel for Mr Taueki , Mr Snell, argued that the assessment of criminality should focus on the conduct of the attacker, not the consequences for the victim. He said that it can sometimes be a matter of luck how bad resulting injuries are. While that is true as far as it goes, it must be remembered that the offending to which this decision refers is the intentional inflicting of serious injury. An offender who acts with intent to cause grievous bodily harm and does, in fact, cause such harm cannot escape responsibility for the consequences of his or her actions. However, care has to be taken not to double count the level of violence inflicted and the seriousness of the injuries which result from it.

(d) Use of weapons: The use of a lethal weapon such as a firearm or a knife will be a serious aggravating factor. In short, the more lethal the weapon that is used, the greater the aggravating factor will be. Where offenders use a broken bottle, the likelihood of very serious injury is high and this will also be a serious aggravating factor. Other examples are use of clubs, baseball bats and similar weapons which, particularly when aimed at the head, can cause significant and permanent injury. The use of a syringe with infected blood or an accelerant to set fire to the victim raise similar concerns to the use of a weapon. Where the use of a weapon is premeditated, the criminality will be worse. In particular, if the offender brings a weapon to the scene with the intent of its being used, that will be severely aggravating. Similar considerations arise if the weapon is brought to the scene for use as intimidation, because it can be anticipated that a weapon brought to the scene in such circumstances will, in fact, be used by the offender. Another relevant factor will be the potential for danger to the public, where, for example, a firearm is fired indiscriminately in a public place.

(e) Attacking the head: Even where weapons are not used, attacks on the head of a victim can have particularly serious consequences. Thus, where a victim is subjected to a severe beating or kicking causing head injuries, the offender’s conduct will be treated similarly to offending involving the use of a weapon.

(f) Facilitation of crime: Where a GBH offence involves the use of violence to facilitate the commission of another offence (for example rape) that will also be seen as an aggravating factor. That would not apply in the case of an offence under s 191(1), where this factor is an ingredient of the offence.

(g) Perverting the course of justice: Similarly, where violence is used in an attempt to pervert the course of justice (for example stopping a person from making a complaint or testifying, or punishing a person for doing so), that will be an aggravating factor.

(h) Multiple attackers: The greater the number of attackers and the greater the disparity between the number of the attacking group and the victim group, the greater the culpability will be.

(i) Vulnerability of victim: Where the victim is particularly vulnerable (for example a child or where there is a disparity in size or strength between the attacker and the victim), that will also be a significant factor in the assessment of culpability. Section 9(1)(g) of the Sentencing Act applies. Breach of a protection order in favour of the victim will also be an aggravating factor. Where the victim is a child in the offender’s care, there will be the additional factor of breach of trust. Section 9(1)(f) of the Sentencing Act applies. Similar considerations arise with victims who are disabled in some way or otherwise defenceless.

(j) Home invasion: Where the offending involves the invasion of the sanctity of the home, this will be a particularly important factor. Section 9(1)(b) of the Sentencing Act applies. As this Court noted in R v McLean [1999] 2 NZLR 263 at 266, the Courts have repeatedly emphasised the importance of recognising the sanctity of the home and insisted that violence occurring in a person's house is to be treated as an aggravating factor calling for a higher sentence.

(k) Gang warfare: This factor was specifically identified in Hereora at 170 and in Mako at [49]. Where serious violence is perpetrated by members of a criminal gang or organised crime cartel, that would be a further aggravating feature.

(l) Public official: Where the victim is a law enforcement officer or other public official (such as an ambulance officer or fire fighter) carrying out his or her duties, that will be a serious additional aggravating factor.

(m) Vigilante action: Where the serious violence results from the actions of one or more persons taking the law into their own hands, acting out of revenge or using stand-over tactics for the enforcement of other obligations, that will also be an aggravating feature.

(n) Hate crime: Where the attack is inspired by racism, homophobia or hostility to any other group, that may also constitute an additional aggravating factor. Section 9(1)(h) of the Sentencing Act applies.

Matters reducing the seriousness of GBH offending

[32] Matters which may be seen as leading to lower starting points are:

(a) Provocation: Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

(b) Excessive self-defence: Similarly, where a party has acted out of self-defence but has gone too far, the fact that the attack initially commenced as an effort to defend himself or herself (or another) may be seen as reducing the seriousness of the offending.

Matters which should not be seen as reducing the seriousness of GBH offending

[33] To avoid any doubt, we mention that there are some factors which are sometimes said to reduce the seriousness of conduct, but which, in our view, should not be seen in that light. We place the following factors in this category:

(a) Domestic situation: The fact that violence occurs in a domestic situation should not be seen as reducing its seriousness. Indeed, domestic violence is a major problem in New Zealand society and, by its very nature, one which is difficult to detect. It frequently involves violence by a man against a women or child, where the vulnerability of the victim is a significant factor.

b) Victim’s plea: Sometimes the victim of a serious assault, particularly in a domestic situation, will ask the Court to impose a lenient sentence. This provides something of a dilemma for a Court, but in our view the position is now clear that the Court should not condone violent conduct even if the victim does so: there is a public interest at stake as well as the interest of the victim: Clotworthy at 659. That is not, however, to say that the views of the victim are to be ignored: rather it is simply to emphasise that the views of the victim do not outweigh the public interest.

(c) Intoxication: The fact that an offender is under the influence of alcohol or drugs at the time of the offending will not be a mitigating factor: s 9(3) of the Sentencing Act.

Bands

[34] Bearing in mind those factors, we now describe the proposed sentencing bands for GBH offending. We emphasise again that these are ranges of starting points, not final sentences. The bands are:

(a) Band one: 3-6 years;

(b) Band two: 5-10 years;

(c) Band three: 9-14 years.

[35] While these are similar to the Hereora categories, there are some differences. In particular:

(a) The need to reflect the legislative policy in s 8(c) and (d) of the Sentencing Act requires that the highest band provide for a starting point of 14 years for the most serious of cases;

(b) We have provided for some overlap in the margins of the bands, to reflect the fact that categorising GBH offending is an evaluative exercise involving the exercise of judgement, rather than a formulaic categorisation of criteria. We are endeavouring to maintain a degree of flexibility which appears to be missing from the Hereora categories.

(c) We have extended the upper limits of each of the bands, reflecting the extension of the upper limit of the highest band to 14 years, and the need to accommodate the overlapping between the bands. This is not, however, intended to indicate a desire to increase sentencing levels for lower level offending. Rather, it broadens the sentencing discretion within each of the bands, allows for the application of ss 8(c) and 8(d) for the most serious offending and broadens the range of sentencing options for offending involving very serious violence or injury or where other factors require that the offending be regarded as at the serious end of the spectrum of GBH offences.

Band one

[36] This band will be appropriate for offending involving violence at the lower end of the spectrum of GBH offences. It is not an appropriate band for offences of extreme violence or violence which is actually life threatening. We have set the lowest starting point in this band at three years for the reasons (and subject to the qualification) set out at [27] above. Where none of the aggravating factors referred to in [31] are present, a starting point at the bottom end of this band would normally be called for. Where one or more of those factors is present, a higher starting point would be required.

[37] The following examples may assist with the application of the above principles:

(a) Street attack: Where an offender has engaged in an attack on a person in a public street, in circumstances where the attack is impulsive (perhaps reacting to some perceived slight), no weapons are involved, and the grievous bodily harm caused to the victim does not have a lasting effect, a starting point at the lower end of this range would be indicated. On the other hand, where the attack features the use of a weapon (such as a fence paling found at the scene) or there are a number of attackers against a single victim, then a starting point of around five years may well be appropriate, again assuming that the grievous bodily harm does not have a lasting effect on the victim;

(b) Domestic assault: A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.

Band two

[38] This band will be appropriate for GBH offending which features two or three of the aggravating factors referred to in [31] above.

[39] The following examples may assist in the application of that principle:

(a) Concerted street attack: For a street attack in which a victim is set upon by a group of attackers in an attack involving the use of weapons found at the scene, a starting point at the lower end of band two would be indicated. If the attack involves blows to the head or other serious injuries are caused, or there is premeditation, then a starting point higher in the band two spectrum would be required;

(b) Assault on Police officer: A GBH offence involving an attack on a Police officer in the course of his duty by a single attacker with the use of a weapon, where the attack is designed to avoid apprehension for other offending, but the injuries are not life threatening or lasting, would require a starting point at the lower end of band two. Where the attack involves multiple attackers or the use of lethal weapons, a starting point at the higher end of band two would be required;

(c) Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

Band three

[40] Band three would normally encompass serious offending which has three or more of the aggravating features referred to in [31] above, where the combination of aggravating features is particularly grave.

[41] The following examples may assist:

(a) Serious concerted street attack: An episode of street violence where multiple attackers set upon a victim in a premeditated attack, using weapons which they have brought to the scene for the purpose, and where serious and lasting injuries are inflicted on the victim will call for a starting point in the lower to middle range of Band 3. Where the victim is particularly vulnerable, or the attack has “hate crime” aspects to it, a higher starting point would be required. Where the victim is left with injuries which will have an ongoing impact on his or her enjoyment of life, a starting point at the top end of Band 3 will be called for.

(b) Serious domestic assault: In a domestic attack situation, where the attack involves a premeditated home invasion with the use of a weapon brought to the scene, the victim is vulnerable and the injuries caused have a lasting effect on the victim, a starting point at the top of the Band 3 range may well be required;

(c) Serious attack on Police: Where an assault on a Police officer by multiple attackers with weapons leading to a life-threatening injury, a starting point at or near the 14 year maximum may be called for.

Flexibility

[42] As the Court noted in Mako, these illustrations are intended for guidance only, and to minimise the need to refer to the large number of earlier sentencing decisions. But the suggested bands and starting points should be used flexibly, and where any particular feature or combination of features has some unusual character, the starting point should be adjusted to reflect that. As indicated at [30] above, sentencing Judges will also need to exercise judgement in assessing the gravity of each aggravating feature. The features of the offending in each case must be carefully assessed in order to establish a starting point which properly reflects the culpability inherent in the offending. Where there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed. However, there is no requirement to draw fine distinctions: Solicitor-General v Lam (1997) 15 CRNZ18at25.

[43] To achieve the objective of greater consistency, it will be necessary for sentencing Judges to articulate in a transparent way the basis on which they have determined the appropriate band, and the factors which have guided their assessment of the starting point. It will be important that the starting point is identified before attention is turned to the personal circumstances of the offender, because the starting point will provide the basis for assessing the consistency of one case with another.

Attempted Murder

30. Prosecution submits a starting point of 13 years imprisonment (band 3 of Taueki) is appropriate.
31. Defence Counsel submits that a non-custodial sentence is appropriate, undertaking a program with judicial monitoring similar to what occurs in the Youth Court.
32. This is an extremely cowardly and despicable act of violence towards a child of 11 years. Prosecution has rightly reminded the Court that Samoa ratified the Convention on the Rights of the Child in 1994. Children are to be protected and as a country we must continue to protect our children and remind ourselves that violence against children will not be tolerated, and will be met with harsh penalties.
33. It is fortunate in this case that this child did not die as the accused has pleaded guilty to an intent to commit murder. This child thought he was going to die and he yelled out

“I don’t want to die Jesus please help me”. This would have been terrifying for this child. He now suffers long term mental and physical effects that have affected his ability to enjoy life as a child. No doubt these effects will continue in the future.

34. In considering the culpability of the offending to determine a starting point, I take into account the aggravating factors of the offending, and determine his culpability to be high.
35. Authorities provided by Prosecution relate to adult victims. The distinguishing factor here is that this victim was 11 years old. This is a serious, premeditated attack with a weapon, inside a home, on a defenceless and vulnerable child, who now suffers from long term physical and emotional impacts.
36. I place this offending in the higher end of band 3 of Taueki and take 11 years imprisonment as a starting point for sentence. I deduct 4 years for his age as he was 18 years old at the time of the offending. His intoxication is not a mitigating factor. I deduct 12 months for his remorse, 12 months for his previous good character as he is 18 years old and not expected to have offended before, 12 months for his personal circumstances in that he aims to go back to school, 12 months for the reconciliation, 12 months for the village penalty, and I will give him the full benefit of a guilty plea, although late of 8 months deduction.

The result

37. The accused is convicted of attempted murder and sentenced to 1 year and 4 months imprisonment.
38. He is convicted of indecent assault and sentenced to 6 months imprisonment, to be served concurrently.
39. I ask Corrections that while he is serving his sentence he undergoes anger management an alcohol counselling.
40. Any time spent in custody to be deducted.

JUSTICE TUALA-WARREN