supreme court of samoa
Police v Magalo [2013] WSSC 119

Case name: Police v Magalo
Citation: [2013] WSSC 119
Decision date: 15 August 2013
Parties: police (prosecution) and Tauiai Magalo male of Saleapaga
Hearing date(s): 18 June 2013 and 8 August 2013
File number(s): 
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): justice slicer
On appeal from:
Order:
Representation: 
E Niumata for prosecution
T S Toailoa for defendant
Catchwords: 
Words and phrases:
Legislation cited:
Crimes Ordinance 1961, s79
Young Offenders Act 2007
Criminal Procedure Act 1972, s.113
Cases cited:
Police v Taueu [2007] WSSC 93
Police v Leotele [2008] WSSC 33
Police v Laulu [2008] WSSC 29
Police v Teveseu [2010] WSSC 147
Police v Alofa’e [2012] WSSC 68
Summary of decision:

in the supreme court of samoa
held at mulinuu
between
police
Prosecution
and
Tauiai Magalo male of Saleapaga
Defendant

Counsel:	E Niumata for prosecution
T S Toailoa for defendant
Hearing:	18 June 2013 and 8 August 2013
Sentence:	15 August 2013
Charge:	Grievous Bodily Harm

sentence OF slicer J
1.	Tauiai Magalo has pleaded guilty to the crime of wilfully causing grievous bodily harm to another contrary to the Crimes Ordinance 1961 section 79.  A more serious crime of attempted murder was withdrawn and dismissed.  The harm was inflicted by the defendant aged seventeen on an associate aged nineteen.
2.	Both boys lived in the same village and their fales were close to each other.
3.	On 23 August 2012 Magalo went to the victim’s home and struck Petelo Sia, who was asleep, to his right shoulder with a machete.  He then attempted a second blow to the face which Sia blocked and repeated the attempt only to he blocked a second time.  Sia tried to disarm the attacker but was unsuccessful and was pushed into a corner.
4.	Magalo took advantage of the weakness of his victim and again struck Sia to the left shoulder with the machete and repeated the action to Sia’s head.
5.	Sia fled to obtain help and was taken to the nearby medical post and then to the Motootua Hospital.  Medical examination showed:
-	multiple lacerations to his right shoulder and left hand;
-	two lacerations to the fingers;
-	a fracture to the left hand; and
-	three lacerations to the head.
6.	He was treated and released some five days later.
7.	It would appear that the two had been friends but that Sia had got married and Magalo objected to Sia’s continued phone contact with a different girl.  The two had sent or received offensive and insulting text messages, which had resulted in the attack.  It was the victim who had sent the messages.  Others attempted to clear the matter up but were unsuccessful and the victim sent some of the text messages to the offender’s uncle for advice.  The attack was a result.  The Court accepts that the text messages were deeply hurtful, provocative and offensive.
8.	The defendant, to his credit, tried to solve the problem by meeting with his former friend at a gathering of the young untitled men and older boys shortly after the text messages had been sent.  He approached the victim who refused to discuss the matter and avoided any discussion or attempts of settlement.  The defendant sought the advice of his uncle who contacted Magalo’s parents.  Counsel for the defendant told the Court that the parents scolded Magalo for failing to protect the honour of his sister and family who had been spoken about in the text messages.  It was then that the defendant decided to personally seek retribution.  It would have been better if he had brought his fists rather than a machete.
Ifoga and Restitution
9.	The victim’s sister affirmed that there had been reconciliation between the families and a fine mat presented as an ifoga.
10.	The offender offered $1,000, a cattle beast and twenty boxes of tinned fish to the fono as a form of punishment.  They were significant forms of punishment and relevant to this sentencing determination.
11.	The prosecution submits four years imprisonment as an appropriate starting point and relies on cases such as Police v Taueu [2007] WSSC 93, Leotele [2008] WSSC 33, Laulu [2008] WSSC 29, Teveseu [2010] WSSC 147 and Alofa’e [2012] WSSC 68 as relevant comparable examples.
12.	The commencing point is accepted as being four years, but takes into account the matter of aggravation, referred to in paragraph 13.
Aggravation
13.	The injuries were serious and the weapon dangerous.  The victim, being asleep was vulnerable and the attack totally inappropriate to the claimed cause.  The form of the attack is prevalent and the need for deterrence high.
Mitigation
14.	The defendant is young and left school at an early age at Grade 8 to help his family.  He is said to neither drink nor smoke.  He helps with the support of his family.  He has been of good character and no previous convictions.  There has been some punishment already imposed but it has in all probability been paid by his family.  He has performed ifoga, and his sister told the probation officer that ifoga had been accepted and there had been reconciliation between the two families.  The Court accepts the contents of the pre-sentence report.  It accepts that the conduct of the victim referred to in paragraphs 7 and 8 was strongly provocative and brought about the attack.  Nevertheless, he was not entitled to react outside of the law and take the form of retribution which he did.
Disposition
15.	There remains the question of disposition.  He was born in 30 April 1995.  He was born on 30 April 1995.  The current prison population is high and the facilities insufficient for the number of prisoners.  This youth is likely to be harmed and probably become corrupted by older and hardened prisoners.
16.	The Court is aware of the provisions of the Young Offenders Act 2007, and that the defendant is aged seventeen.  The defendant was born on 30 April 1995 and the crime committed in 23 August 2012.  He was aged seventeen years, three months and three weeks at the relevant time.
17.	The use of the machete and the attempted repeat of force require some form of confinement rather than a community service order.
18.	The Court was advised that at least one other Judge of this Court has directed that a confinement order be served at the Youth Centre at Oloamanu.  It may be possible in law to make a section 113 order (Criminal Procedure Act 1972) and impose a condition that he report to the officer in charge of the Youth Centre and consent to his direction to remain in confinement.  That course may be beyond power and remain the province of the Court of Appeal.  I will not take that course.
19.	The prosecution has advised that if directed or recommended it and the responsible authority will give effect to a direction or recommendation of the Court in matters such as this.  I will follow that course.  The appropriate period of confinement is that of twelve months.
ORDERS:
(1)	Tauiai Magalo be convicted of the crime of causing grievous bodily harm.
(2)	Tauiai Magalo be sentenced to a term of confinement of twelve (12) months, such sentence to be served at the Oloamanu Juvenile Centre.  In the alternative the Court strongly recommends that he be immediately transferred from prison to the Oloamanu Juvenile Centre.  The sentence is to commence as and from 15 August 2013.
(3)	Upon release he is subject to a further period twelve months probation.

…………………………
    (JUSTICE SLICER)