Police v Toma [2023] WSSC 52 (28 August 2023)

SUPREME COURT OF SAMOA
Police v Toma [2023] WSSC 52

Case name:	Police v Toma
Citation:	[2023] WSSC 52
Decision date:	28 August 2023
Parties:	POLICE v TOM MULIVAI TOMA
Hearing date(s):
File number(s):	SC/CR/UP 2023-00892#1; 2023-00892#2; 2023-00893#3; 2003-00893#10; 2003-00893#11
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE PERESE
On appeal from:
Order:	(a) In relation to the charge involving possession of methamphetamine he is sentenced to time served in custody; (b) In relation to the two other narcotics charges (possession of marijuana and possession of instruments) he is sentenced to supervision for 8 months; (c) In relation to the charge of grievous bodily harm and being armed with a dangerous weapon, the defendant is sentenced to 12 months’ supervision. (d) The sentences of supervision are to be served concurrently. (e) The defendant is sentenced to carry out 100 hours of community work. (f) The defendant is required to attend counselling for drug and alcohol abuse, and for anger management, and any other course he is directed by Probation services to attend for the purposes of his rehabilitation. (g) For the period of the supervision, the defendant is required to attend on the mental health services at the national hospital for 3 monthly follow ups, and undertake any treatment or rehabilitation plan he is directed to follow by mental health services. A copy of these sentencing notes is to be sent to Dr Tuitama.
Representation:	M T Fesili for prosecution L T Strickland for defendant
Catchwords:	aggravating features – being armed with a dangerous weapon– grievous bodily harm –guilty plea – mitigating features – possession of narcotics namely methamphetamine – possession of narcotics namely marijuana leaves – possession of a utensil namely a glass pipe –maximum penalty – starting point for sentence –counselling for drug and alcohol abuse - anger management program – mental impairment – an unpleasant experience – feeling unhappy- depressed- regretful – remorseful – psychosis
Words and phrases:	Taueki methodology
	“To Manatu” Men’s Advocacy Group with Samoa Victim Support.
Legislation cited:	Narcotics Act 1967 New Zealand Sentencing Act 2002 in Adams on Criminal Law Police Offences Ordinance 1961
	Sentencing Act s.6(g) and 7(2)(d)
Cases cited:	De La Hunt v R [2014] NZHC 1144 E v R [2010] NZCA 13, (2011) 25 CRNZ 411 Police v Chong Nee [2018] WSSC 43 Police v Tuifao [2023] WSSC 19
	Police v Pelepesite [2015] WSSC 202 Police v Vaisola [2017] WSSC 131 Nuku v R [2019] NZCA 319
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TOM MULIVAI TOMA
Defendant

Counsel:
M T Fesili for prosecution
L T Strickland for defendant

Sentence: 28 August 2023

SENTENCING NOTES OF PERESE CJ

1. Tom Mulivai Toma, a 23-year-old male of Falefa and Falelauniu appears for sentencing in relation to 5 charges to which he has pleaded:
   • (h) Possession of narcotics namely methamphetamine weighing 0.03 grams; an offence punishable under the Narcotics Act 1967 carrying a maximum penalty of life imprisonment;
   • (i) Possession of narcotics namely marijuana leaves weighing 5.8 grams; an offence punishable under the Narcotics Act 1967 carrying a maximum penalty of 14 years’ imprisonment;
   • (j) Possession of a utensil namely a glass pipe, an offence punishable under the Narcotics Act 1967 carrying a maximum penalty of 7 years’ imprisonment or a fine of 200 penalty units, or both;
   • (k) A charge of grievous bodily harm; an offence punishable under the Crimes Act 2013 carrying a maximum penalty of 10 years’ imprisonment; and
   • (l) A charge of being armed with a dangerous weapon namely a butcher’s knife; an offence punishable under the Police Offences Ordinance 1961 carrying a maximum penalty of 1-year imprisonment.
2. The most serious charge in terms of penalty is the offence of possession of methamphetamine which carries a maximum penalty of life imprisonment. However, in terms of culpability, I consider the most serious charge is the Crimes Act charge of causing grievous bodily harm which carries a maximum of 10 years’ imprisonment.
3. Documents before me are the Police Summary of Facts dated 28 June 2023, the Probation Service Pre-sentence Report dated 22 June 2023 and the Prosecution’s sentencing memorandum, dated 31 July 2023.
4. The defendant is represented by Ms Taimalelagi, and counsel has placed before the court her plea in mitigation, together with three affidavits, all dated 17 August 2023, from the defendant, his mother Shirley Susana Toma, and his partner Rosalina Agnes Silva. Counsel for the Police advised the Court when this matter was last called that the Police did not wish to cross examine the deponents.
5. The summary of facts provides that on 9 March 2023 at around 7am to 8am at Falelauniu, the defendant and another, Mr Felise Ilalio Tanielu a co-offender in relation to the narcotics charges and victim in relation to the grievous bodily harm charge, were in the defendant’s room at his mother’s home. They were there together with a woman who was a friend of the defendant. They had been smoking narcotics. The woman wanted to go to the bathroom, but the defendant did not want her to use the bathroom. Mr Tanielu then offered to take the woman to the bathroom and this angered the defendant. The two of them – the defendant and Mr Tanielu had a dispute, and the defendant went to the kitchen and grabbed a butcher’s knife and returned to the room. When the defendant arrived at the room, Mr Tanielu’s hand was on the door and he tried to shut the door. The defendant hit the victim’s finger with the cleaver causing a laceration of 5cm in length and 0.5cm in depth. The commotion woke the defendant’s mother and the defendant left the scene. The mother called the Police.
6. In his affidavit, the defendant accepts the Police summary of facts but says the woman was not his girlfriend but a girl who was his friend - that they were not in any type of relationship. He says Mr Tanielu was not a close friend but someone he had met at the Savalalo market where he had been selling buckets of paint to the general public. Mr Tanielu wanted a few paint buckets but was unable to pay with money. The Pre-sentence report records that Mr Tanielu said he would bring the money around to the defendant’s house later that day. However, instead, Mr Tanielu brought to the defendant’s house on the evening of the 8^th March 2023, methamphetamine and marijuana as payment for the buckets of paint. That is how the narcotics came to be at the defendant’s house – Mr Tanielu brought them over.
7. The Police took the defendant into custody for approximately 2 weeks. The defendant says that this was his first experience of prison life, which he described as “an unpleasant experience” which left him “feeling unhappy, depressed, regretful and remorseful” of his actions and the consequences it had on his family.
8. The defendant continued to feel the same way after he was granted bail. His mother took him to the mental health clinic at Moto’otua where he was placed under supervision for two weeks, and given medication. The defendant was unable to see his family during the period he was with the mental health services.
9. There is no evidence concerning the basis of the defendant’s stay with mental health services under the terms of the Mental Health Act 2007. However, Seiuliali’i Dr George Tuitama, the acting head of Mental Health services for the Ministry of Health of Samoa, provided a letter dated 22 June 2023, produced in the Probation report saying –
   • This letter serves to inform that the [defendant] was previously admitted into the Mental Health Unit in March 2023 with a drug induced psychosis. During his psychotic episode, he got into an altercation which has resulted in a court case. He received treatment successfully and has made a good recovery.
   • I assessed Tom today and found him to be in good health with good rapport, well dressed and free from psychosis. Since his discharge from the Mental Health Unit, he has secured a full time job and is the only income earner to support his family consisting of his wife, two children and his mother who lives with them. He has not touched drugs or alcohol since his incident and is remorseful about the event which displays good insight and logical thinking.
10. The Probation report also attached a letter from the defendant’s employer to confirm the defendant’s employment status, as a full-time employee working 60 hours per week for $180.

The Legal principles in the Sentencing Act 2016 (“the Act”)

11. The principles and purposes of sentencing are set out in sections 5 and 6 of the Act, and whilst all the principles referred to in those sections are relevant, some take on more importance in certain cases. In this case, the psychosis at the time of the offending is a material factor. It suggests the relevant sentencing principles which the court needs to give greater weight revolve around holding the defendant accountable and deterring him or others like him from committing the same or similar offences, perhaps through rehabilitation. Further, the court needs to consider the culpability of the defendant and to take into account any circumstances of the defendant that would mean that a sentence that would be otherwise appropriate would, in the instance, be disproportionately severe.
12. The Police submit that the offending in this case involves two aggravating factors, and that the matter therefore falls within Band 2 of the Taueki methodology.
    • (a) Use of a weapon;
    • (b) Vulnerability of the victim.
13. The Police rightly say that the Court has imposed custodial sentences of between 12 months to 3 years on defendants who have used weapons such as knives and machetes to inflict injuries on their victims. The principle of consistency suggests that a sentence of imprisonment should be the appropriate sentence, if not starting point.
14. The Police submit that a starting point of two years’ imprisonment is appropriate.
15. Although the most serious offence in terms of possible penalty is the methamphetamine charge, there was such a small amount involved that no one has found a case involving the sentencing of an offender for 0.03 grams. The closest the Police found was the sentencing in Police v Tuifao [2023] WSSC 19, where the defendant was sentenced to 3 months’ imprisonment for possession of 0.07 grams of methamphetamine and 2 months for possession of utensil. In this case, the amount found to be in the defendant’s possession of 0.03 grams, is less than half of the amount involved in Police v Tuifao, which would therefore suggest that an appropriate sentence for the criminality involved might be mathematically calculated as being half of the sentences imposed in Police v Tuifao.
16. In my view the most serious charge in this sentencing, in terms of criminal culpability, is the grievous bodily harm charge because of the fact of the wounding. I have seen a picture of the wound. The cut is deep. The only mitigation I can see is that the cut is along the finger and not across the finger. Had it been the latter, the victim may well have lost his finger.
17. The authorities referred to in the Police sentencing submissions generally refer to starting points of between 3 to 4 years’ imprisonment for grievous bodily harm offences. One of the cases Police refer of Police v Alofa’e [2012] WSSC 68, a starting point of 5 years was adopted for offending involving more than one strike with a sharp machete, which caused the victim’s muscles and veins to be severed, and there were other deep wounds; in Police v Ulaula (unreported, 23 July 2012, Justice Nelson), a starting point of 4 years was adopted when the defendant used a machete; the victim sustained injuries when he used his arms to protect himself; he ended up losing three fingers and a large cut to his wrist. Finally, in Police v Iosua (unreported 17 November 2016, Justice Tuala), a starting point of 3 years was adopted for an offence involving a machete where the victim was struck on the forearm; his injuries were relatively complex and required surgery – a deep laceration to his forearm and compound fractures of his elbow bone.
18. Ms Taimalelagi correctly describes the injury in this case as one that is less severe than the those noted above, and, further, the injury does not necessarily lead to permanent damage nor did it need surgical treatment.
19. I would normally have regard to the victim’s views at this point in the sentencing process, however, that cannot be done in this case. Mr Tanielu, the co-offender in the narcotics charges, has breached his bail terms and cannot be located, and he has not given a victim impact statement to the Police.
20. Ms Taimalelagi submits that not all sentencing in grievous bodily harm matters end with a prison sentence. Counsel referred to the relatively more recent case of Police v Pelepesite [2015] WSSC 202 a case which involved injuries to the victim of a crack to his forehead requiring 4 stiches, a slash on the right side of his cheek which required 8 stitches and a slash under the victim’s right eye. In Pelepesite the court recognised amongst other factors that the defendant was a first-time offender, as is the case with Mr Toma. The defendant in Pelepesite was convicted and sentenced to 100 hours of community service and 12 months’ supervision, directed to attend “To Manatu” and a Men’s Advocacy Group with Samoa Victim Support. Ms Taimalelagi also referred to Police v Vaisola [2017] WSSC 131 where the defendant’s arm was fractured and lacerated requiring stitches. The victim was hospitalised for 11 days following surgery. The weapon was a piece of timber. The sentencing judge took into account that the defendant was a first offender and of general good character and that his offending was out of character. The defendant was sentenced to 12 months’ supervision and directed to complete an anger management program and pay court costs of $300.
21. Ms Taimalelagi invites the court to consider a sentence of supervision coupled with community work as being a suitable sentence in this matter.

DISCUSSION

22. I must admit that when I first looked at this matter there were important features that immediately caught my attention, such as the defendant’s mental health at the time of the offending and the role of the Mental Health Service of the Ministry of Health. In the interests of justice, I directed the appointment of a legally aided advocate to assist the defendant with these matters, which, respectfully would not be adequately addressed by an unrepresented defendant. I am indebted to Ms Taimalelagi for her work for the defendant.
23. This is a case which involves a person who through his own efforts suffered a drug induced psychosis. This psychosis was evident two weeks after the event, as recounted by the acting head of Mental Health Services. The ongoing effects of the psychosis were evident to the extent that the defendant received treatment over a two-week period. In that time, he was not allowed to receive visits from his family.
24. There have been other cases before the court involving mental health issues at the sentencing phase. The leading case is Police v Chong Nee [2018] WSSC 43, a decision of the late Chief Justice Patu Falefatu. In this case the defendant was found guilty of charges of theft, intentional damage to property and endangering transport. The charges carried maximum penalties of between 7 and 14 years. The defendant Chong Nee had pleaded not guilty on account of a mental illness of bipolar disorder. The court considered sections 6(g) and 7(2)(d) of the Sentencing Act most relevant, and then referred to New Zealand authorities that had considered the New Zealand equivalents of these Samoan provisions. Reference was made to De La Hunt v R [2014] NZHC 1144, where his Honour Justice Gendall found that in relation to s. 9(2)(e) of the New Zealand Sentencing Act 2002 (equivalent to our s.7(2)(d)), that in order to be satisfied that an offender’s diminished intellectual capacity or understanding may be a mitigating factor, the court needed to be satisfied there was a causative link between the lack of capacity or understanding of the offence and the offending.
25. Justice Gendall also found that under s. 8(h) of the New Zealand Sentencing Act (equivalent to our s. 6(g)), the court may also take into account as a mitigating factor the situation where a sentence will weigh more heavily on the defendant than on others because of his/her intellectual function or mental impairment, or where the otherwise appropriate sentence will exacerbate the mental impairment.
26. This court in Police v Chong Nee also referred to a decision of the New Zealand Court of Appeal in E v R [2010] NZCA 13, (2011) 25 CRNZ 411, as relevant. In my view, I respectfully adopt the principles set out in E v R as being relevant in sentencing matters involving defendants with mental illnesses or intellectual disabilities. The court in E v R observed the following important principles:
    • A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. The moderation of culpability follows from the principle that any general criminal liability is founded on conduct performed rationally by one who exercises a willed choice to offend.
27. Later decisions of the New Zealand Court of Appeal such as in Nuku v R [2019] NZCA 319 have summarised the mitigation of sentence inquiry as follows:
    • (a) Is there evidence of a causal relationship between the defendant’s mental impairment and his or her offending?
    • (b) Or, will the effects of the defendant’s mental impairment make a prison sentence more severe?
    • (c) Or is there a real risk of a prison sentence having a significant adverse effect on the defendant’s mental health?
28. The court in E v R gave a discount of 25%.
29. Finally, the court in Police v Chong Nee referred to the commentary on the New Zealand Sentencing Act 2002 in Adams on Criminal Law – Sentencing citing with apparent approval the following observation:
    • “The extent of the discount depends upon the extent to which the mental impairment has caused the offending and whether it poses a heightened risk of further offending. Subject to these considerations, the discount ordinarily considered as appropriate has been in the range of 20 to 30 per cent... In some exceptional circumstances, the discount may be even higher...”
30. The court in Chong Nee accepted the evidence of Dr Tuitama and held that there was a causative link between the accused’s bipolar disorder and his offending, and that this therefore made the accused’s bipolar disorder a mitigating factor. After taking into account the aggravating and mitigating circumstances court accepted the defendant’s submission that a non-custodial sentence was appropriate.
31. I am inclined to the same approach in this case.

Aggravating circumstances of the offending

32. The police submit there are two aggravating circumstances in the grievous bodily harm offending;
    • (a) Use of a weapon; and
    • (b) Vulnerability of the victim. The Police submit that the victim was in a vulnerable position not only because he was unarmed but also because he was unaware of the defendant’s intentions, it was a surprise attack.
33. The Police submit that in terms of the Taueki methodology the two aggravating factors place the matter within Band 2. I have my doubts about the vulnerability of the victim as a aggravating feature.
34. Police also submit the discovery of Class A and B narcotics amounts to an aggravating feature of the offending. I do not accept this submission; the defendant faces separate charges in relation to the narcotics, and to use it as an aggravating feature for other offending amounts to double dipping.

Mitigating features of the offending and the offender

35. Ms Taimalelagi submits the mitigating features in this matter are:
    • (a) Guilty pleas entered at the first opportunity;
    • (b) No previous convictions and his previous good character;
    • (c) Age of the defendant, that he is still relatively young at age 23;
    • (d) The defendant’s personal circumstances as set out in his affidavit, and those of his mother and partner. Those factors include the effect of the defendant’s father’s death in 2020, which his mother described as a significant on the family, particularly Tom, whose bad behaviour before his father’s death got worse after he lost both his father and his job through redundancy.
36. There are two further mitigating factors which the court identifies:
    • (a) First, the defendant, with the help of his mother, sought the assistance of mental health services as soon as he had been granted bail. I equate these actions as similar in effect to offenders who voluntarily seek counselling to address drug and alcohol related issues.
    • (b) The second further mitigating factor as it relates to the offender is that he was held in custody at a time when he was suffering from the effects of psychosis. The defendant describes in his evidence that he was unhappy and depressed, regretful and remorseful. In other words, I consider he has suffered, unaided, more than would ordinarily be expected of defendants being held in remand. As Mrs Toma explains in her affidavit:
      • 15. When Tom was released on bail, I noticed that he was uneasy and visibly unstable. I was genuinely concerned for Tom’s mental health and wellbeing as he was noticeably distant and withdrawn and was muttering to himself which was unusual and concerning.
37. I draw from Mrs Toma’s assertions that Mr Toma had not before behaved as he had after being granted bail. I draw from that the inference that it is unlikely, from Mrs Toma’s perspective, that Mr Toma had previously shown signs of mental health distress.
38. I adopt the Police submission that a starting point of two-years or 24-months imprisonment is appropriate in this case. From this I make the following deductions
    • (a) 30% on account of the defendant’s guilty plea;
    • (b) 15% on account of his previous good character and to recognise that he is still a relatively young man;
    • (c) 10 % discount on account of the defendant’s personal circumstances, which appear to me to have led to the spiral of his life evidenced by his escalating alcohol and drug use, ultimately leading to the offending in this case.
39. The defendant suffered psychosis at the time of his offending, which Dr Tuitama’s letter refers to as drug induced. There is a direct link between the offending and the onset of the defendant’s psychosis. In other words, the consumption of narcotics brought on the mania which led to the use of a butcher’s knife to resolve a muddled dispute between the co-defendants. The psychosis seems to have been a relatively short-lived event lasting about a month (two weeks in custody and two weeks in the mental health unit). Though short lived, it was nevertheless lived, and had very real consequences. I am satisfied that but for the psychosis, the defendant would not have reacted to an argument with someone whom he had been consuming narcotics with in the previous few hours, by heading off to the kitchen to get a butcher’s knife. That behaviour can only be described as bizarre. I allow the defendant a further, and modest discount of 20%.
40. Taking all the discounts into account (75%), the defendant would liable to an end sentence of 6 months’ imprisonment.

Culpability

41. This matter involves the causative influence of a mental health disorder. In addition to giving a discount on account of the direct influence of the mental disorder, I am also obliged to consider whether the effect of the mental disorder is such that it moderates the defendant’s culpability to the extent that it renders less appropriate a punitive sentence of imprisonment.
42. After careful consideration, I consider a sentence of 6 months’ imprisonment is “less appropriate” and a “punitive” sentence. The appropriate sentence is a community-based sentence focused on rehabilitation whilst holding the defendant to account. I am satisfied that the onset and role of the psychosis was so prevalent in the offending that what is really required for this defendant is that he be directed to engage in on-going monitoring by Mental Health services, even though this appears to be his first experience with psychosis, and that he undertakes appropriate counselling for drug and alcohol abuse, and for anger management, so that he does not suffer the same fate again.
43. A finding of drug induced psychosis is not a licence to commit crime. On the contrary, the focus in this part of sentencing involves the balancing of competing interests. For instance, had the victim in this case lost a finger in the attack, then it would have been appropriate to start at a higher starting point, and ended up at a higher end point. Given the permanence of that type of injury, the court would be more inclined to sentence the offender to imprisonment. Each case must be decided on its own merits. What this sentencing achieves is to ensure that mental health issues are taken into account at sentencing, by following established principles followed in New Zealand for laws which have their equivalents in Samoa.
44. It appears the defendant works a 60-hour week, and so the prospect of community work is extremely limited. However, I sentence him to complete 100 hours of community work.

SENTENCE

45. The defendant is sentenced as follows;
    • (d) In relation to the charge involving possession of methamphetamine he is sentenced to time served in custody;
    • (e) In relation to the two other narcotics charges (possession of marijuana and possession of instruments) he is sentenced to supervision for 8 months;
    • (f) In relation to the charge of grievous bodily harm and being armed with a dangerous weapon, the defendant is sentenced to 12 months supervision.
    • (g) The sentences of supervision are to be served concurrently.
    • (h) The defendant is sentenced to carry out 100 hours of community work.
    • (i) The defendant is required to attend counselling for drug and alcohol abuse, and for anger management, and any other course he is directed by Probation services to attend for the purposes of his rehabilitation.
    • (j) For the period of the supervision, the defendant is required to attend on the mental health services at the national hospital for 3 monthly follow ups, and undertake any treatment or rehabilitation plan he is directed to follow by mental health services. A copy of these sentencing notes is to be sent to Dr Tuitama.

Stand down.

CHIEF JUSTICE