Police v Mamoe [2024] WSSC 35 (5 June 2024)

IN THE SUPREME COURT OF SAMOA
Police v Mamoe [2024] WSSC 35 (05 June 2024)

Case name:	Police v Mamoe
Citation:	[2024] WSSC 35
Decision date:	05 June 2024)
Parties:	POLICE (Informant) v FRANCIS MAMOE, male of Vaiusu (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	SUPREME – Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	Accordingly, you are convicted and sentenced as follows, less remanded in custody: Assault grievous bodily harm on a totality basis, 28 months’ imprisonment; Endangering transport, 4 months’ imprisonment concurrent; and Armed with a dangerous weapon, 3 months’ imprisonment concurrent.
Representation:	J Leung Wai for Prosecution V Afoa for the Accused
Catchwords:	Assault with intent to cause grievous bodily harm – endangering transport – armed with a dangerous weapon.
Words and phrases:
Legislation cited:
Cases cited:	R v Taueki [2005] NZCA 174; Tele’a v National Prosecution Office [2017] WSCA 4.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

A N D:

FRANCIS MAMOE, male of Vaiusu.

Accused

Counsel: J Leung Wai for Prosecution
V Afoa for the Accused

Sentence: 5 June 2024

ORAL SENTENCE

The Charges:

1. Francis, you appear for sentence on the following charges:
   • (i) Assault with intent to cause grievous bodily harm;
   • (ii) Endangering transport; and
   • (iii) Armed with a dangerous weapon.

The Offending:

2. I will not repeat the Summary of Facts in detail as this has been read to you. Briefly, according to the Prosecution Summary of Facts accepted by you through your lawyer, on the 26 August 2023 between 10am and 10.30am, you entered the victim Atonio’s taxi at the Fish Market. You told him that you wanted to go to Vaitele-Fou.
3. You then drove together to Vaitele-Fou and around Vaitele-Fou with Atonio. At some point with your travels with Atonio you told him to stop the taxi. You then confronted him about his alleged affair with your wife and about a phone call to your wife where he said inappropriate words to your wife which your children could hear. Atonio however refused to discuss the matter with you and kept driving. Atonio could then see you moving from one side of the passenger’s seat to the other and looking around as if to see if anyone was watching. Without warning, you then attack Atonio strangling him and then striking him with a round metal instrument. Atonio lost consciousness and control of the taxi. The taxi then swerved and struck another taxi coming on the other side of the road. Extensive damaged was caused to both taxis.
4. As a result of your assault and collision, Atonio was diagnosed with the following injuries:
   • (a) Traumatic Brain Injury secondary to the assault;
   • (b) Skull laceration and skull fracture;
   • (c) Contusion with bleeds that were noted on the CT scan; and
   • (d) He had suffered speech impairment as well as weakness of the right side of the body.

Background of the Accused:

5. You are a 38 year old male from Vaiusu and you are unemployed. You grew up in Vaiusu and you left school after year 12. You are the father of 4 children, 2 of who have been adopted and now live in New Zealand. You have worked in Australia under the RSE program and return to Samoa last year. You also work in your family handicraft business.
6. You are described by your wife as heaven sent (tofi mai le Atua) and have positive and supportive character references.

The Victim:

7. The first victim of your offending is Atonio who is a 45 year old male of Magiagi. He was self-employed as a taxi driver operating from Motootua. As a result of your assault, he suffered serious and lasting injuries. This included speech impairment and weakness to the right side of his body which was noted in his medical report from December last year. Since your assault, his left foot was amputated due to an unrelated injury but both the foot amputation and your assault means he can no longer drive a taxi.
8. The second victim is Hugo, the other taxi driver. As a result of your actions in December 2023, he had still not repaired his taxi because of the costs of doing so. He also suffered a sore chest for 3 weeks after the incident but is now fully recovered. No apology can be confirmed nor have you made any effort to repay the damage you caused.

Aggravating Features of the Offending:

9. The aggravating features of your offending are as follows:
   • (i) There was a clear element of premeditation to your assault on Atonio. You explained to the Probation Service that while you were in Australia, you learnt that your wife was allegedly having an affair with Atonio. When you returned to Samoa, you went in his taxi at the Fish Market in Apia and then only confronted him well into your drive when you reached Vaitele about the alleged affair. It was only there that you then attacked him;

(ii) Your use of a weapon;
(iii) Your strangulation of Atonio and use of a pipe to strike his head, a particularly vulnerable part of the body;
(iv) The serious injuries suffered by Atonio; and
(v) The damage to both taxis as a result of your offending.

10. There are no mitigation features to your offending.
11. There are also no aggravating features personal to you as an offender as you are a first offender.

Mitigating Features Personal to the Offender:

12. The mitigating factors I take into account personal to you are as follows:
    • (a) Your remorse reflected through the Pre-Sentence Report;
    • (b) Your prior good character;
    • (c) Completion of the Salvation Army program to address your anger management;
    • (d) I accept that there was an element of provocation; and
    • (e) Your early guilty pleas to the charges.
13. Although you have through counsel suggested that apologies had been extended and reconciliation had occurred, that is not confirmed by the victims and their families.

Discussion:

14. Francis, your offending is very serious and it has had a serious impact on both Atonio and Hugo. For Atonio, he has suffered long term injuries as a result of your assault and what is described as moderate to severe traumatic brain injury. It was at the end of the day a cowardly attack. You used a weapon to attack an unarmed man. Both Atonio and Hugo have also not repaired their taxis due to the extent of the damage you caused by your actions. This has had consequences not only to their income but their ability to transport their families.
15. In your Pre-Sentence Report you state that you take full responsibility for your actions. If that is correct, you would and should have made some effort to repair the damaged but you have made no such effort. You would have also reconciled and apologized but you have not done.
16. You are described by your wife as heaven sent. You however alleged she had an affair with Atonio and that’s what ended up causing you to attack Atonio. Whether she had an affair or not, your belief that she had been unfaithful is no basis for you or any other husband to then go confront an alleged boyfriend and assault him. It almost always ends up with you sitting where you sit and facing imprisonment for your actions.
17. Your counsel seeks leniency and a non-custodial sentence. A non-custodial sentence is completely out of the question. The injuries suffered by Atonio is very serious and long-lasting. You also strangled him and attacked him with a pipe with the aggravating factors I have outlined simply does not leave it open for me to impose a non-custodial sentence.
18. Prosecution seeks an imprisonment start point of 5 years. Having regard to the bands in R v Taueki [2005] NZCA 174; the Court of Appeal judgment in Tele’a v National Prosecution Office [2017] WSCA 4 and general sentencing authorities on grievous bodily harm offending, I view this offending as either the top end of band one or bottom range of band 2 in Taueki given in particular the use of a weapon striking Atonio’s head; strangulation; and the serious injuries suffered by Atonio. In this case, I adopt 4 ½ years start point. From that start point, I deduct 5 months for your remorse, 6 months for your prior good character and 2 months for your completion of the Salvation Army Program as well as 3 months for provocation. From the balance, 10 months for your guilty plea leaving an end sentence of 28 months’ imprisonment on a totality basis less time remanded in custody.

Result:

19. Accordingly, you are convicted and sentenced as follows, less remanded in custody:
    • (i) Assault grievous bodily harm on a totality basis, 28 months’ imprisonment;
    • (ii) Endangering transport, 4 months’ imprisonment concurrent; and
    • (iii) Armed with a dangerous weapon, 3 months’ imprisonment concurrent.
      

JUSTICE CLARKE