Police v Maugatai [2025] WSSC 40 (8 May 2025)

IN THE SUPREME COURT OF SAMOA
Police v Maugatai [2025] WSSC 40 (8 May 2025)

Case name:	Police v Maugatai
Citation:	[2025] WSSC 40
Decision date:	8 May 2025
Parties:	SETU MAUGATAI, male of Vaiee, Safata and Maninoa, Siumu.
Hearing date(s):
File number(s):
Jurisdiction:	Supreme Court - CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	The defendant is convicted and sentenced to 4 years and 4 months’ imprisonment less any time in custody.
Representation:	J Leung Wai for Prosecution T Toailoa for the Defendant
Catchwords:	Attempted murder
Words and phrases:	“sentencing bands for grievous bodily harm”
Legislation cited:	Crimes Act 2013, s. 104.
Cases cited:	Attorney General v Ropati [2019] WSCA 2; Bragovits v National Prosecution Office [2017] WSCA 2; Faleao v Police [2024] WSCA 3; Hamidzadeh v R [2012] NZCA 550; Police v Fotualii [2016] WSSC 89; Police v Gisi [2023] WSSC 4; Police v Mautagata [2021] WSSC 42; [2021] WSCA 12; Police v Samaeli [2009] WSSC 7; Police v Soi [2014] WSSC 191; R v Owens [2017] NZHC 319; R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

SETU MAUGATAI, male of Vaiee, Safata and Maninoa, Siumu.

Defendant

Counsel: J Leung Wai for Prosecution
T Toailoa for the Defendant

Sentence: 8 May 2025

SENTENCING OF TUATAGALOA J

1. The defendant appears for sentencing having pleaded guilty to the charge of attempted murder pursuant to section 104 of the Crimes Act 2013 with the maximum penalty of life imprisonment.

The offending

2. The summary of facts by the prosecution was made available and confirmed by the defendant which says:
   • The victim is the defendant’s brother-in-law, married to the victim’s sister.
   • On the Sunday morning, 15 October 2023 the defendant called out to his son who was in the umukuka (outside kitchen) to hurry up with the preparation of their Sunday to’onai (lunch) before church. The defendant again called out twice. The victim did not like it because he said that the defendant was too loud. The defendant’s younger son ran up to the defendant and said to him that the victim said to shut up as it was Sunday. The victim also called out to the defendant to shut up and the victim responded that he was talking to his son. This led to the victim walking over to the defendant in his house and grabbed the defendant by his chin and the defendant’s daughter who was present intervened and separated them. The victim then walked back to his house and lay down.
   • The defendant with a machete was said to have walked over to the victim who was lying down in his house and struck at him multiple times (7x) – four strikes on the left leg, two on the right leg and one on the right shoulder. A neighbour intervened and disarmed the defendant and the victim was rushed to the Poutasi District Hospital.

The injuries

3. The victim sustained the following injuries:
   • (i) Right shoulder - a linear laceration approximately 8cm deep into muscle layer with active bleeding;
   • (ii) Right leg with two injuries – on lateral side was a circular laceration down to muscle layer and a linear laceration approximately 6cm down to muscle layer;
   • (iii) Left leg with four injuries – (a) deep laceration on the thigh anterior approximately 14cm length with depth down to the bone with active bleeding, (b) a linear laceration on the inner thigh approximately 7 cm down to the muscle layer with active bleeding, (c) a linear laceration on the outside of the left leg approximately 10cm down to the bone with active bleeding, (d) a linear laceration on the outside of the left foot approximately 10 cm down to the bones and tendons actively bleeding.
4. According to the medical report from Poutasi District Hospital the victim was stabilised with acute treatment and referred to the Emergency Department at Moto’otua Hospital.^[1] There is no medical report from the Moto’otua Hospital of the treatments to the victim’s injuries that he would have to undergo due to the seriousness of some of these injuries.

Victim impact report[2]

5. The victim according to the victim impact report (VIR) was hospitalised for a week and continued treatment as an outpatient for two months. The injuries, although healed, have nevertheless limited what he can do and can now only walk slowly.
6. The victim also says that the defendant was not only banished from his family but also from the village.

Pre-sentence report[3]

7. It is obvious from the pre-sentence report (PSR) that the defendant and his brother-in-law (victim) have a lot of issues which culminated in the defendant doing what he did to his brother-in-law. The defendant says in the PSR that he was irritated with the victim’s behaviour and what he (victim) said to him and his son. He said that his anger got the best of him.
8. The PSR confirms that the defendant has not personally apologised to the victim due to his bail conditions imposed by the court of not to contact the victim.
9. There are written testimonials from the Pulenuu of Siumu, his Faifeau of the Methodist Church in Siumu where the defendant lived and the offending took place, his family Sa’o or chief and his wife (reported in the PSR). All speak of the defendant being a dedicated individual, reliable and committed church member, a humble and kind man. The wife says that he is a loving husband who has never hurt her or caused trouble within their family. I find it hard to reconcile the person these testimonials speak highly of and the defendant who was capable of such harm. The circumstances of the offending depict a man with anger issues and of a violent nature.

Aggravating factors

10. The following are aggravating factors of the offending:
    • (a) Pre-meditation: The defendant deliberately got hold of the machete and walked over to the victim. It was clear that he intended to use the machete which he did.
    • (b) The use of a lethal or dangerous weapon (machete).
    • (c) Vulnerability of the victim: The victim was lying down and was not aware of the defendant approaching. The defendant continued to strike at the victim even when he was on the ground.
    • (d) Multiple strikes using the machete: The defendant struck the victim eight times while the victim was lying down.
    • (e) The force used: Some of the injuries were deep as it went to the bone medical report and photos). This would take a lot of force to sustain those injuries.
    • (f) The severity of injuries sustained: These injuries were bleeding profusely and were deep wounds. The victim was in my view lucky to have been rushed to the district hospital and then transferred the next day to the main hospital at Moto’otua.
    • (g) Impact of the injuries to the victim: As mentioned in the VIR, the victim can no longer perform some of his chores properly and the injuries has also affected his walking.

Mitigating factors

11. Prosecution acknowledged as mitigating factors the defendant being a first offender of prior good character and his early guilty plea.
12. Counsel for the defendant in her submissions asks the Court to consider provocation as a mitigating factor. Counsel refers to the following as provocation – there was an exchange of words between the defendant and the victim which led to the victim walking over to the defendant’s house and grabbing the defendant by the chin. Counsel also refers to a separate incident where the victim is said to have slashed the defendant’s wife’s face with a machete. I do not accept this previous incident as part of provocation of this offending as advanced by Counsel. I will only accept as provocation what took place immediately before the offending.
13. There was a disputed facts hearing sought by the defendant as to a ‘heated argument’ between the defendant and the victim immediately before the offending. The defendant alleged that the summary of facts by the prosecution left out the victim’s conduct and threats to kill made towards the defendant prior to the offending. At the disputed facts hearing there was no evidence of any threats to kill or any evidence of the matter referred to by Counsel to be part of provocation.
14. The Court of Appeal in Faleao v Police^[4] said of provocation:
    • “The New Zealand Courts have considered provocation in sentencing decisions as a mitigating factor of the offending. Recognising that there is no defence of provocation in New Zealand, the observations in that case are useful. The Court of Appeal has found that “the evaluation in provocation sentencing is fact dependent” and suggested relevant factors may include:^[5]
      • ...the nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender’s response; and whether the provocative conduct was such as to reduce the offender’s culpability in all the circumstances.”
15. The intensity, extent and nature of the loss of control must be assessed in the context of the provocation that preceded it. The offending was purely out of anger and not of fear. The defendant’s reaction was immediately after the altercation with the victim.
16. I will also consider in mitigation the village penalty confirmed to have been carried out by the defendant and his family, the apology offered by the defendant’s wife to the victim although not accepted and any remorse.

Discussion

17. Those who resort to unnecessary, severe violence when they are angry must expect correspondingly severe sentences, particularly when the lives of victims are put at risk. Violence of this level, the sentencing principles to the forefront must be those of deterrence and denunciation. A strong message needs to be sent that such behaviour or offending is not tolerated.
18. Too often we see the use of a knife in inflicting brutal injuries and even death. It is frightening to see the ease with which it is used in our community to harm and kill people, often without thinking of the consequences. The use of knives on people will be met with custodial sentences. The only question is how long?
19. The prosecution recommends a starting point of 10 years' imprisonment having referred to various cases of similar nature. The prosecution also submits that the sentencing bands or tariffs in R v Taueki^[6] are relevant and applicable to the setting of a starting point in the circumstances of the present offending.
20. Counsel for the defendant disagrees and submits that a lower starting point than 8 years is appropriate having distinguish the cases referred to by the prosecution as follows:
    • Police v Fotualii^[7] - there was very little provocation and the seriousness of the injuries was much higher. In other words, Counsel for the defendant says that the injuries sustained in the present offending were not life threatening.
    • Police v Mautagata^[8] was appealed whereby the Court of Appeal found the starting point of 14 years to be excessive and found 9 years starting point appropriate. The Court of Appeal in assessing the aggravating factors resulting in the 9 years starting point said that the knife used was small although a knife of any kind is potentially lethal and the injuries inflicted were relatively mild, certainly when compared to those generally encountered in cases of grievous bodily harm or attempted murder.
    • Police v Gisi^[9] no provocation, the injuries sustained were much serious and the attack was to the neck with a starting point of 11 years. The victim was young at 11 years old.
    • Police v Soi^[10] a starting point of 10 years plus 3 years uplift for previous convictions of assault on his wife, significant injuries to the head.
    • Police v Samaeli^[11]premeditated, use of a knife, 3 stabs, injury to the neck, collar bone area and left shoulder with a starting point of 8 years.
21. Analogous cases may be helpful, but each case must be considered on its own facts. The penalty for the offending the defendant is charged with of attempted murder is maximum life imprisonment. The starting points in cases of attempted murder where machete is used ranged from 9-15 years depending on the level of culpability or the circumstances of each case.
22. It follows that in relation to the most serious of cases the starting point maximum must reflect the statutory maximum, here it is 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.
23. Referring to the aggravating factors (paragraph [11]) it is with no doubt that the level of violence in the commission of this offending was quite substantial. This was a premeditated attack with a weapon (machete) used to strike at a defenceless and vulnerable victim multiple times inside his home, who now suffers some long-term physical impacts.
24. The sentencing tariffs in Taueki as to whether it should apply to attempted murder cases was considered by the Court of Appeal in Bragovits v National Prosecution Office^[12] made the following observations:
    • “...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 sentencing 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 involve 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 an earlier example, the GBH bands in Taueki are often used.
    • ............
    • 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^[13] where the judge used the Taueki guidelines for GBH to good effect.”

And Mautagata v Police^[14] shared the same view:

“Sentencing in cases of attempted murder has its challenges. The maximum sentence is life imprisonment but, as the Court observed in Bragovits in Samoa, as in most countries, there is no guideline judgment as the circumstances of the offending can vary so widely. It is therefore helpful, as counsel for the appellant submitted, to look for guidance in cases such as Taueki which provide a framework for analysing offending involving violence for the purpose of inflicting serious harm. Only the intention to kill present in a case of attempted murder is absent.”

25. I find the sentencing bands and guidelines in Taueki for Grievous Bodily Harm, bearing in mind that New Zealand has a lower maximum penalty for attempted murder (14 years), to be helpful here:
    • (i) Band one:3-6 years; (violence at the lower end of the spectrum)
    • (ii) Band two: 5-10 years;(two or three aggravating factors)
    • (iii) Band three: 9-14 years (serious offending)
26. The factors identified in Taueki that has bearing on assessment of culpability, of relevance are:
    • The level of violence/Multiple strikes.
    • Premeditation.
    • The injuries inflicted.
    • The use of a weapon.
27. I take into account when sentencing the need to hold the defendant accountable for the harm done to the victim, to promote in him a sense of responsibility for and an acknowledgment of that harm, to provide for the interests of the victim, to denounce his behaviour, to deter others from similar offending and to protect the community.
28. The defendant’s actions are, even though provoked, are blame-worthy and culpable. Even if there was a degree of provocation the response by the defendant was way out of proportion. I bear in mind what the Court of Appeal said in Attorney General v Ropati:^[15]
    • “Provocation is relevant solely for the purpose of assessing the reasonableness of the defendant’s reaction to the situation he or she faced.”
29. The only mitigating factors personal to the defendant are his previous good character and early guilty plea. I will also take into account the village penalty confirmed to have been carried out by the defendant and his family, the apology offered by the defendant’s wife to the victim although not accepted. I also accept that he is remorseful of his actions and will also consider provocation as mitigating factors of the offending.

Sentence Imposed

30. I place this offending in the higher end of band 3 of Taueki and take 10 years' imprisonment as a starting point for sentence and make the following deductions - I deduct 2 years for prior good character; 12 months for the apology by the wife although was not accepted and defendant’s remorse; 2 months for the village fine paid by the defendant’s family; and 12 months for provocation. This leaves 70 months. I then give 25% discount of 18 months for the early guilty plea. The end sentence is 4 years and 4 months.
31. The defendant is convicted and sentenced to 4 years and 4 months’ imprisonment less any time in custody.
    

JUSTICE TUATAGALOA

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^[1] Medical Report by registered nurse Saivaega Naumati, dated 17 October 2023.
^[2] Victim Impact Report dated 3 July 2024
^[3] Pre-Sentence Report dated 18 July 2024
^[4] Faleao v Police [2024] WSCA 3 (29 august 2024)
^[5] Hamidzadeh v R [2012] NZCA 550 at [26]
^[6] R v Taueki [2005] 3 NZLR 372 (CA)
^[7] Police v Fotualii [2016] WSSC 89
^[8] Police v Mautagata [2021] WSSC 42; [2021] WSCA 12 (14 December 2021]
^[9] Police v Gisi [2023] WSSC 4 (30 January 2023)
^[10] Police v Soi [2014] WSSC 191 (12 November 2014)
^[11] Police v Samaeli [2009] WSSC 7 (9 February 2009)
^[12] Bragovits v National Prosecution Office [2017] WSCA 2
^[13] R v Owens [2017] NZHC 319 (2 March 2017).
^[14] Mautagata v Police [2021] WSCA 12 (14 December 2021).
^[15] Attorney General v Ropati [2019] WSCA 2 (15 April 2019).