Police v Muta [2023] WSSC 88 (20 December 2023)

IN THE SUPREME COURT OF SAMOA
Police v Muta [2023] WSSC 88 (20 December 2023)

Case name:	Police v Muta
Citation:	[2023] WSSC 88
Decision date:	20 December 2023
Parties:	POLICE (Prosecution) v IOSUA MUTA, male of Malie
Hearing date(s):	02 October 2023
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Niavā Mata Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced as follows: • Grievous bodily harm – 3 years’ imprisonment • Armed with a machete – convicted and discharged. The end sentence to be served less any time in custody in relation to this matter.
Representation:	DJ Fong for Prosecution S Ainuu for the Defendant
Catchwords:	Causing grievous bodily injury – armed with a dangerous weapon – custodial sentence – tariffs for grievous bodily harm – sentencing bands.
Words and phrases:
Legislation cited:	Crimes Act 2013, s. 118(1); Police Offences Ordinance 1961, s. 25.
Cases cited:	R v Taueki [2005] NZCA 174; 3 NZLR 372 as applied in Telea v National Prosecution Office [2017] WSCA 4 (31 March 2017).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

IOSUA MUTA, male of Malie

Defendant

Counsel: DJ Fong for Prosecution
S Ainuu for the Defendant

Sentence: 20 December 2023

SENTENCING OF TUATAGALOA J

1. The defendant appears for sentence after having been found guilty on the charges of causing grievous bodily injury^[1] which charge carries a maximum penalty of 10 years’ imprisonment; and the charge of being armed with a machete, a dangerous weapon^[2] which carries a maximum penalty of 12 months’ imprisonment.
2. The facts of the case have been traversed at trial and are referred to in the court’s decision of 7^th October 2023. In summary, the following took place:
   • On the evening of 30^th July 2022 the defendant, the victim and two friends had a drinking session. During the drinking session the victim went to pee and the defendant followed and deliberately bumped into the victim causing the victim to almost fall over. He also said to the victim “pe fia ulavale”. The victim responded “ou ke ulavale” and threw a punch resulting in a fist fight between the defendant and the victim. Taina, the victim’s friend, intervened and broke up the fight. The defendant walked off towards the main road. On the main road is a shop and the victim went and sat on the far left side of the shop’s veranda while his friend Taina was standing on the main road. Not long after the defendant also came to the main road and challenged both the victim and his friend to a fight but Taina managed to calm him down and told him to go and sleep as he was too drunk. The defendant left but returned with a machete. Taina saw the defendant approached the victim from behind with a machete and he called out to warn the victim. The victim was late getting up to run away and the defendant slashed the victim from behind wounding the victim on his right shoulder. The defendant did not stop there, instead he chased the victim around a parked vehicle next to the shop.

The injury

3. The victim sustained an injury 10-12cm in length and 3-5cm in depth that required 11 stitches. Dr. Pa’i Enosa who treated the victim rated the injury to be of moderate to severe and said that had it been any deeper, it would have proven fatal for the victim. The Victim Impact Report (VIR)^[3] provided that the victim was admitted for two (2) days then he requested to be discharged.

Prosecution submissions

4. The prosecution refers the Court to various sentencing authorities of the Court where a machete or knife is used and where alcohol is involved. The prosecution identified the following as aggravating factors of the offending:
   • (a) Severity of the injury;
   • (b) Use of a weapon;
   • (c) Impact of the offending; and
   • (d) Pre-meditation.
5. The prosecution seeks a custodial sentence with a starting point of five (5) years on the Taueki^[4] tariffs for grievous bodily harm. The recommended five year starting point falls between the higher end of Band one or the lower end of Band two.

Defense Counsel’s Submissions

6. Defense Counsel on the other hand submits for a non-custodial sentence highlighting the following mitigating factors in favour of the defendant:
   • (i) Apology;
   • (ii) Genuine Remorse;
   • (iii) Personal circumstances – 28 years’ old and his mother and two younger siblings depend on his job as a carpenter to pay for his younger siblings’ school fees;
   • (iv) Generally, a person of good character – written testimonials from his mother, pulenuu and employer; and
   • (v) Compliance with bail conditions throughout this whole time.
7. Counsel further submits for a non-custodial sentence to be appropriate as a non-custodial would:
   • (a) Contribute to developing the defendant’s skills as a carpenter. That the defendant will continue to hone his skills as a carpenter to provide for himself and his family; and
   • (b) Lower the possibility of re-offending

The Pre-Sentence Report (“PSR”)

8. The PSR dated 25^th October 2023 provided for the defendant gives the defendant’s personal background including his educational background. He is the eldest of three children and he reached tertiary level having studied at the National University of Samoa but did not complete his bachelor’s degree in education due to financial constraints. He has had several jobs since dropping out of University and was the only one in his family that is employed and providing for his mother and two younger siblings. Attached to the PSR are written testimonials from his mother, employer and village pulenuu who all attested to the defendant being hardworking and trustworthy. His mother says that he is a changed man since this matter and that he no longer consumes alcohol.
9. The PSR also provides that the defendant was in 2019 charged with robbery which offence he admitted was committed under the influence of alcohol. He was given the opportunity to attend the Alcohol and Drugs Court (“ADC”) and had completed the three (3) months ADC programs and was sentenced to a six (6) months’ supervision term on 19^th November 2019. However, the defendant breached his supervision term when he re-offended and was sentenced before the Family Violence Court on 2^nd September 2020 for intentional damage and being armed with a dangerous weapon. It did not stop there, the defendant again re-offended on 20^th October 2021 with theft, armed with dangerous weapon intentional damage, throwing stones and threatening words to which he pleaded guilty. The defendant failed to appear for sentence before the Family Violence Court on 6^th December 2021 and a warrant of arrest was issued. Accordingly, this warrant remains outstanding.

Discussion

10. The submissions and recommendations by counsels for the prosecution and the defendant are at polar ends. Prosecution submits that a custodial sentence is appropriate while counsel for the defendant says that a non-custodial sentence is appropriate. The authorities provided by counsel for the defendant focused on cases with circumstances of offending completely different from the present case where a knife or machete was used, or that alcohol was involved. The authorities cited by counsel for the defendant focused on different offending where the Court has imposed non-custodial sentences. The authorities referred to by the Prosecution are those of similar offending where a machete was used and alcohol was involved.
11. Counsel for the defendant strongly recommends for a non-custodial sentence focusing on rehabilitation to lower the possibility of re-offending. The defendant does not seem to have alerted Counsel of the opportunity he was given in 2019 to attend the ADC programs whose main purpose is to address the causes of offending which in his case was alcohol with the aim for the defendant not to re-offend. The defendant accordingly re-offended as soon as he was no longer in ADC. The current offending that he is to be sentenced also involves alcohol as was his previous offending in 2019.
12. The Prosecutions advocates that a custodial sentence is appropriate and where a machete is used causing grievous bodily injury the Taueki tariff bands to apply:^[5]
    • (a) Band one: 3-6 years
    • (b) Band two: 5-10 years
    • (c) Band three: 9-14 years
13. Guidelines of this kind are never intended as a straitjacket to preclude the application of flexible justice to the individual case. That is, no circumstances of any two cases are the same therefore the defendant person is to be sentenced according to the particular circumstances of his or her offending. In any event, a custodial sentence is appropriate in the circumstances of this offending.
14. In Telea v National Prosecutions Office^[6] where the Taueki tariffs were adopted the Court of Appeal at [33] where a machete is used – “Broadly speaking and with the odd outlier, grievous bodily harm attacks with a machete have tended to result in starting point of four to six years’ imprisonment.” Furthermore, the increase in penalty for grievous bodily harm in Samoa from seven to 10 years suggests a Parliamentary intention for a firmer stance to be taken by the Court to sentencing for grievous bodily harm in Samoa.^[7]
15. The use of a knife or a machete to cause injury is becoming prevalent if not already. A combination of alcohol and anger always leads to violence resulting in serious injury or injuries. This case is no exception. The circumstances of this particular offending has the defendant heavily intoxicated with no self- control whatsoever while consuming alcohol evident in his behaviour on this night. This is no excuse for the offending behaviour. The defendant’s behaviour prior to the offending was challenging towards the victim and the victim’s friend Taina. The fight between him and the victim prior to the offending was provoked by the defendant’s behaviour and words said to the victim. The defendant’s offending was pre-meditated for he went home and came back with the machete and went straight to where the victim was sitting with his back to where he was coming from. The defendant is not a person of prior good character for he has prior offending where there was also the use of a weapon, a stone to facilitate his offending and the use of threatening words. Such prior offending is similar to the present but its seriousness has now escalated.
16. I accept the following to be the aggravating features of this offending:
    • (i) The use of a weapon, a machete;
    • (ii) The offending was pre-meditated - the defendant went home and returned with a machete and walked straight to where the victim was sitting and slashed at him from behind;
    • (iii) The victim was in a vulnerable position for he was sitting down and had his back towards the direction of where the defendant was approaching from and the defendant slashed at him from a vantage point standing up;
    • (iv) Aggravating as well is the fact that the defendant did not leave after having slashed at the victim but that the defendant chased after the victim with the machete in his hand. The victim was lucky that he ran off before the defendant could have slashed at him the second time; and
    • (v) The defendant was the aggressor.
17. I find the following features in mitigation personal to the offender: I accept the reasons given for the late apology because of Court conditions of his bail not to be in contact with potential police witnesses to which the victim is a main witness. However, I question the genuineness of the defendant’s remorse. I do not accept his sworn statement for the reason that he pleaded not guilty for he did not remember anything. The inference from the evidence in Court is the defendant was too drunk. Alcohol or being drunk is not a defence under the law. He also said in his sworn affidavit that he did not really accept the finding of guilt by the Court until he had watched the video. This is unacceptable to the Court. The video was not evidence in court. In the PSR^[8] (pre-sentence report) the defendant says that he maintains his innocence but accepted the Court’s decision. This is not a sign of genuine remorse.
18. The injury sustained by the victim required eleven (11) stitches and was serious. The Doctor in evidence said that any deeper and would have proven fatal. Accordingly, the injury has healed well. Nevertheless, the victim was off work for a whole month during which time he continued to go in to the hospital. The month he was off work had a financial impact on his young family. According to the VIR the apology has been accepted by the victim and his family but still leaves the matter to the Court for appropriate sentence.
19. In the circumstances of this offending I find appropriate the starting point of four (4) years mid-range of Band one in Taueki and deduct twelve (12) months for the mitigating factors in [13] above. The end sentence is three (3) years.
20. The defendant is convicted and sentenced as follows:
    • Grievous bodily harm – 3 years’ imprisonment
    • Armed with a machete – convicted and discharged.
21. The end sentence to be served less any time in custody in relation to this matter.

JUSTICE NIAVĀ MATA TUATAGALOA

---

^[1]Crimes Act 2013, s. 118(1).
^[2]Police Offences Ordinance 1961, s. 25.
^[3] Victim Impact Report, dated 3 November 2023
^[4] The R v Taueki [2005] NZCA 174; 3 NZLR 372 as applied in Telea v National Prosecution Office [2017] WSCA 4 (31 March 2017).
^[5] R v Taueki [2005] NZCA 174; 3 NZLR 372
^[6] Telea v National Prosecution Office [2017] WSCA 4 (31 March 2017).
^[7] ibid., at [31].
^[8] Pre-Sentence Report dated 6^th November 2023