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Police v Lemana [2017] WSSC 67 (27 April 2017)

THE SUPREME COURT OF SAMOA
Police v Lemana [2017] WSSC 67

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TOMA LEMANA male of Leulumoega-Tuai
Accused

Counsel:
O Tagaloa for Prosecution
D Roma for the Accused

Sentence: 27 April 2017

S E N T E N C E

The charge

1. The accused appears for sentence on one charge of attempted murder, pursuant to s.104 of the Crimes Act 2013, which carries a maximum penalty of life imprisonment and one charge of being armed with a dangerous weapon pursuant to section 25 Police Offences Ordinance 1961 which carries a maximum penalty of 1 year imprisonment.
2. He pleaded guilty to the charges on 26 January 2017.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 20 August 2016, at 6 pm, the victim and his wife went to Leulumoega where the accused lives. The victim was dropped off at land belonging to his wife’s family to collect ginger. While the victim was digging up ginger the accused arrived and asked him what he was doing on the land. The accused is the victim’s wife’s brother. The accused told the victim to leave and the victim told him he was waiting for his wife to pick him up. The accused was holding a machete. He accused walked away but returned. The victim was bending down to gather ginger when the accused struck him with the machete on the neck. The victim threw a shovel at the accused in an effort to defend himself. The victim and the accused struggled on the ground. Bystanders came to his rescue.
4. As a result of the attack, the victim sustained a deep laceration on his neck which was 7-8cm in length and 1-2 cm deep. He was transferred to the main hospital for an operation.

The accused

5. As shown in the pre-sentence report, the accused is 46 years old, single and works at Bluebird Lumber earning $170.00 per week. He still works there.
6. He has lived and studied in Tonga and has worked in American Samoa.
7. His cousin told Probation that the accused is of admirable character, and is reliable in relation to church and village affairs.
8. His village mayor, a family matai, his religious leader and employer have provided letters in support of him. They all say he is a hard worker who is cheerful and active in the church, village and employment.
9. The accused says of the offending that he was shocked to find the victim back on their land helping himself to the vegetable garden. This angered him and he fought with the victim. The victim tried to hit him with a shovel so he hit him with the machete.
10. He expressed remorse to Probation.
11. He paid a village penalty of $1000.00 and a large fine mat.
12. He is a first offender.

The victim

13. The victim in this matter is a 45 year old former police officer and is the brother in law of the accused. The victim had been banished from the village.
14. The victim is still very angry and upset about what happened. He says he will never forget it. Some matai from the family of the accused approached him but there has been no reconciliation with the accused.
15. He says he spent $840.00 on hospital and transport expenses.

Aggravating features of the offending

16. It is aggravating that the offence took place within the context of a domestic relationship. The victim is the brother in law of the accused and this relationship falls within the definition of a ‘domestic relationship’ contained in section 2 of the Family Safety Act 2013. Section 17 of same Act states that the Court shall consider this fact as an aggravating factor when determining sentence.
17. It is also aggravating that the accused used a weapon, namely a machete to inflict injury. This is a lethal and extremely dangerous weapon.
18. He also attacked the victim while the victim was bending down and in a defenceless position.
19. The attack was also aimed at the victim’s neck, an extremely delicate part of the body.
20. The victim suffered a severe and serious injury as a result of the strike with the machete by the accused.
21. The impact on the victim in terms of not only the physical impact but emotional impact has been significant.

Mitigating Factors

22. The accused has expressed remorse to Probation and his remorse has been conveyed by Defence Counsel. His character according to the testimonials in his favour all point to a person of good character.
23. He paid a village penalty which I will take into account.
24. I take into account his attempt at reconciliation even though it was not accepted by the victim.
25. There was a degree of provocation in the victim being back on land from which he was banished.
26. His belated guilty plea to the charges is another mitigating factor which I will take into account.

Discussion

27. Prosecution submits that an imprisonment term is appropriate with a starting point of 10 years.
28. Defence Counsel leaves it to the Court’s discretion.
29. Vaai J in Police v Faapuaa [2015] WSSC 97(14 September 2015) stated that;

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.

30. Again, Vaai J in Police v Tinotaua [2016] WSSC 67 (22 March 2016);

“People who come before the Court for sentence on charges involving violence must be dealt with very stern, far too many lives have been lost and serious injuries have been caused through violence and the use of a weapon as a result of the violence.”

31. I am aware that this Court is considering setting a range of starting points for each offence in order to avoid any unjustified disparities in starting points.
32. Sapolu CJ in Police v Atonio [2013] WSSC 32(6 June 2013) said;

One of the advantages of the starting point approach is its flexibility because it does not depend on a fixed tariff which applies across the board regardless of the circumstances of the case at hand but on the aggravating and mitigating factors relating to the offending in each case.

33. In considering the culpability of the offending to determine a starting point, I take into account the aggravating factors of the offending, there being no mitigating factors of the offending. I assess his culpability to be significantly high given it was his own brother in law who he attacked with a machete, causing a serious injury to the victim’s neck.
34. I take into account when sentencing the need to hold the accused accountable for the harm done to the victim, to promote in him a sense of responsibility for and an acknowledgement 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.
35. Too often we see the use of this dangerous weapon 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 thought of the consequences. A message from this sentence is that the use of machetes on people will be met with a custodial sentence.
36. In this particular case, hostility within this family must be addressed, otherwise this will happen again and the consequences may be more severe.
37. Even if there was a degree of provocation in the victim being back in the village having been banished, the response by the accused was way out of proportion. I bear in mind what the Court of Appeal of Samoa said in Faafua (Vili) v Police [1980-1993] WSLR 550 cited by Wilson J in Police v Gali [1999] WSSC 19 (29 September 1999) which resonates well with this case;

This was a serious wrong which you each did. Although you were provoked, you should not have responded in the way you did and with such severity. Your actions, even though provoked, are blame-worthy and culpable.

38. In saying that, I do take into account this provocation as disobeying a village council order is a serious matter.
39. But for the accused today, it will be a custodial sentence.
40. Having taken into account the aggravating features of the offending, I will take 8 years as a starting point for sentence. I will deduct 3 years his remorse, the testimonials in his favour which tells of someone who previously was valued by the village, his church, his family and his employer, and his village penalty. I deduct 20% or 1 year for his belated guilty pleas. This leaves an imprisonment term of 4 years. I deduct a further 6 months for the provocation and his attempt at reconciliation with the accused.

The result

41. The accused is convicted and sentenced to 3 ½ years imprisonment for attempted murder.
42. For the charge of armed with a dangerous weapon, the accused is convicted and sentenced to 6 months imprisonment.
43. Both sentences to be concurrent and any time spent in custody to be deducted.
    

JUSTICE TAFAOIMALO TUALA WARREN