SUPREME COURT OF SAMOA
Police v Alaovaoe [2015] WSSC 188

Case name: 	Police v Alaovaoe	
		
Citation: 	[2015] WSSC 188	
		
Decision date: 	27 November 2015	
		
Parties: 	POLICE v SEMUA TAUTAI ALAOVAOE male of Lepa, Aleipata.	
		
Hearing date(s): 		
		
File number(s): 	S2864/15, S2867/15	
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Chief Justice Sapolu	
		
On appeal from:		
		
Order:	-	Convicted and sentenced to 5 years and 11 months imprisonment.
-	Anytime the accused has already spent in custody is to be deducted from that sentence.	
		
Representation: 	P Chang for prosecution
R T Faaiuaso for accused

Catchwords: 		
		
Words and phrases:	Attempted murder – maximum penalty – guilty plea – aggravating features – mitigating features – provocation – starting point for sentence – sentence 	
		
Legislation cited:	Crimes Act 2013, s.104 of the 	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs:  S2864/15, S2867/15

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

SEMUA TAUTAI ALAOVAOE a male of Lepa Aleipata.
Accused

Counsel:	
P Chang for prosecution
R T Faaiuaso for accused

Sentence:	27 November 2015

S E N T E N C E 
The charge
1. 	The accused Semua Tautai Alaovaoe is a 47 year old male of Lepa.  He appears for sentence on the charge of attempted murder, contrary to s.104 of the Crimes Act 2013, which carries a maximum penalty of life imprisonment.
2. 	When this matter was first called for mention on 14 September 2015, the accused pleaded guilty to the attempted murder charge.  He was then unrepresented by counsel.  In previous unsuccessful proceedings for withdrawal of that guilty plea, defence counsel informed the Court that the Judge presiding at the mentions on 14 September 2015 advised the accused that he should seek legal advice because of the seriousness of the charge and granted him legal aid.
3. 	Following the assignment of Mr Faaiuaso to act for the accused on legal aid, an application was filed to withdraw the accused’s guilty plea.  One of the grounds of the application was that the accused was informed by the Judge presiding at the mentions that he should seek legal advice and was granted legal aid.  It therefore appears that the accused had pleaded guilty to the attempted murder charge at the earliest opportunity but after being granted legal aid and was assigned counsel, an application was filed on his behalf to withdraw his guilty plea.  I say all of this because of its potential bearing on the discount to be given for the accused’s early guilty plea.
 The offending
4. 	The victim is a 59 year old male of Lepa.  On 29 August 2015 in the morning, the accused was at his plantation.  While the accused was absent at his plantation, an argument took place between his son in law and the wife of the victim.  The accused’s son in law claimed that the victim’s wife had spread rumours within their village that he was not the father of his wife’s unborn child.  The victim’s son intervened and tried to stop the argument but ended up having a fist fight with the accused’s son in law.  The victim then joined in and together he and his son assaulted the accused’s son in law. 
5. 	When the accused arrived home from his plantation, he saw his son in law being assaulted by the victim and his son.  He then ran over with the bushknife he was carrying.  At that time, the victim’s back was facing where the accused was approaching from.  And just as the victim was turning around, the accused struck him with the bushknife.  The blow landed on the victim’s forehead creating a deep cut on his forehead.  The victim staggered from the impact of the blow.  The accused delivered a second blow with his bushknife to the top of the victim’s head creating a deep cut on the top of the victim’s head.  The victim then fell to the ground.
6. 	The accused then stood  over the victim and held up his hand to deliver a third blow at the victim’s head when the victim’s wife came up from behind and tried to wrestle the bushknife away from the accused but the accused was too strong for her.  The victim’s wife then hit the back of the accused’s head with a rock which made the accused swung the bushknife at her.  The victim’s wife held up her hand to protect herself and the bushknife hit her arm.  Members of the accused’s family then ran over and pulled the accused away.
7. 	The victim was rushed to the Lalomanu district hospital where he was medically examined by a registered nurse and found to have sustained the following injuries on the occipital and parietal areas of his head: (a) a wound measuring 10cm in length and 3cm in depth, (b) a palpable skull fracture, and (c) much bleeding from the wound site.  Also found on the parietal area was another wound measuring 6cm in length and 3cm in depth, a palpable skull fracture, and much bleeding from this wound.  Because of the seriousness of his injuries, the victim was transferred to the TTM hospital in Apia the same day for further treatment.
The accused
8. 	As shown from the pre-sentence report, the accused is married with eight children.  He had a low level of education having left school after Year 8.  He has never had any formal employment.  His plantation and fishing skills are his source of livelihood.  He is the sole provider for his family.  He and the victim are also related and are neighbours in their village.
9. 	The accused was apparently provoked when he saw his son in law being assaulted by the victim and his son.  However, he clearly over-reacted.  He told the probation service that this matter stemmed from a land and titles dispute.  This does not appear from the summary of facts accepted by the accused.  According to the summary of facts, this matter started from an argument between the accused’s son in law and the victim’s wife because the accused’s son in law claimed that the victim’s wife was spreading rumours within their village that his wife’s unborn child was not his child.
10. 	The accused is a first offender and his wife told the probation service that her husband is a humble and very caring person who is loved by all his relatives.  There are, however, no character references from the pastor of the accused’s church or the pulenuu of his village. Perhaps the probation service has good reason for this because they always provide character references from the pastor of the church and pulenuu of the village of a guilty accused person for sentencing purposes. The accused is also a first offender.  
11. 	The accused’s family have presented a ifoga consisting of two large fine mats and $1,000 cash to the victim’s family which was duly accepted.  The matter has therefore been settled and the victim’s wife has told the probation service that her husband has forgiven the accused.
The victim 
12. 	There is no victim impact report submitted for this case but obviously this offending seriously affected the victim physically.
The aggravating features relating to the offending 
There are several aggravating features relating to this offending and are listed as follows:
(a)	Use of a dangerous weapon
13. 	The bushknife used by the accused in this incident is a dangerous weapon and can be life threatening.
(b)	Number of blows with the bushknife
14. 	The accused struck the victim from behind twice on the head with the bushknife causing the victim to fall to the ground.  The accused then stood over the victim and was about to deliver a third blow with the bushknife when the victim’s wife and then members of the accused’s family intervened and stopped him.
(c)	Injuries to the victim 
15. 	The injuries sustained by the victim were serious and life threatening.  As a result, he was transferred from the Lalomanu district hospital to the TTM hospital in Apia for further treatment. 
(d)	Position of the injuries
16. 	Both injuries to the victim were to his head which is the most vulnerable part of the human body as it contains the most vital organ which is the brain. The position of the injuries is also indicative of the accused’s intent.
Mitigating feature relating to the offending 
17. 	Apart from the aggravating features relating to the offending there is also a mitigating feature.  It is provocation. 
Provocation 
18. 	When the accused arrived home from his plantation carrying his bushknife, he saw his son in law being assaulted by the victim and his son.  This angered him and he went over and struck the victim twice on the head causing him to fall down.  He would have delivered a third blow but other people intervened and stopped him.
19. 	The accused also says that he and the victim are both matais.  In terms of Samoan custom, the victim as a matai should have come and talk to him as another matai about his son in law instead of assaulting his son in law. 
Mitigating features relating to the accused as offender 
20. 	There are also the following mitigating features relating to the accused as offender:
(a)	Previous good character
21. 	The accused’s wife told the probation service that her husband is a humble and very caring person who is loved by all his relatives.  He is also a first offender.
(b)	Ifoga
22. 	The accused’s family has presented a ifoga to the victim’s family which was duly accepted and this matter has been settled.  The victim has also forgiven the accused.
(c)	Guilty plea 
23. 	The accused’s guilty plea is an important mitigating feature personal to him as offender.  The accused had pleaded guilty to the attempted murder charge at the earliest opportunity but after he was assigned counsel on legal aid he wanted to change his guilty plea to one of not guilty.  It seems to me this change of circumstances made the accused change his mind.  It affects the discount I will give the accused for his guilty plea but, in this case, not by much.
Discussion
24. 	In passing sentence, the factors that I take into account in this case for determining the starting point for sentence are the maximum penalty for the offence of attempted murder, the need for deterrence, the aggravating features relating to the offending, and the one mitigating feature relating to the offending.  I will take 9½ years as starting point for sentence.  I will deduct 2 years for the ifoga and for previous good character.  That leaves 7½ years.  I will further deduct around 20% or 1 year and 7 months for the accused’s guilty plea.  That leaves 5 years and 11 months.
The result
25. 	The accused is convicted and sentenced to 5 years and 11 months imprisonment.  Anytime the accused has already spent in custody is to be deducted from that sentence.

CHIEF JUSTICE