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Police v Kepaoa [2017] WSSC 97 (29 June 2017)
IN THE SUPREME COURT OF SAMOA
Police v Kepaoa [2017] WSSC 97
| Case name: | Police v Kepaoa |
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| Citation: | |
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| Decision date: | 29 June 2017 |
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| Parties: | POLICE (Informant) and TELEAMEKO KEPAOA, male of Levi, Saleimoa (Defendant) |
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| Hearing date(s): | 12 May 2017 |
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| Jurisdiction: | CRIMINAL |
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| Place of delivery: | Supreme Court of Samoa, Mulinuu |
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| Judge(s): | Justice Mata Keli Tuatagaloa |
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| On appeal from: |
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| Order: | Convicted and sentenced to six years and six months imprisonment. He is to serve his imprisonment term at Oloamanu Juvenile Centre. |
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| Representation: | L Sio for Prosecution
R Schuster for the Defendant |
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| Catchwords: | Attempted murder – step-father/son relationship – young offender – no apology – pre-meditated – severe
injuries (victim) – machete attack – provocation – previous good character – custodial sentence |
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| Summary of decision: |
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IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU
BETWEEN:
P O L I C E
Prosecution
AND:
TELEAMEKO KEPAOA, male of Levi, Saleimoa
Defendant
Counsel:
L Sio for Prosecution
R Schuster for the Defendant
Sentence: 29 June 2017
SENTENCING OF TUATAGALOA J
- The accused appears for sentencing after being found guilty on the charge of attempted murder by a panel of assessors on 12 May 2017.
- The victim of this offending is the step-father of the accused. The step-father is 40 years old. The accused was 17 years old at
the time of the offending.
The offending
- On Sunday, 28 February 2016 the step-father and the accused mother had an argument. The accused heard the argument, walked over and
heard the step-father saying things about him and his sister. The accused was not happy as this is not the first time the step-father
has had a fight or argument with his mother. The accused got hold of a machete, went to the main road to wait for his step-father
and assaulted him with the machete.
The accused
- The accused had always been living with his biological father however at the time of the offending he had moved to live with his
mother. Less than a year into this new living arrangement it was clear that the accused was not happy with the constant quarrelling
between the step-father and mother especially that these fights were happening and they were living at his mother’s family.
The other issue was the step-father would always bring up the accused and his sister in these verbal arguments.
The injuries
- The victim (step-father) sustained multiple lacerations to his left forearm, deep open fracture to his left elbow, amputated right
thumb and multiple lacerations to the left thigh. The injuries to his left elbow involved the joint, fracturing the bones and severing
muscles and nerves. The victim underwent an emergency operation with the injuries to his left elbow and posterior forearm.
- From the doctor’s report the victim underwent three more operations to try and restore function to his left upper limb. The
victim according to the victim impact report was hospitalized for four months.
Victim impact report
- The victim said in the victim impact report that not only had his right thumb been severed but he can only use three fingers on his
left hand as the nerves to the other two fingers are damaged as the result of the attack and his left arm feels numb. He still goes
for his follow up medical checks at the hospital.
- The victim says that he no longer has the full function of his left arm and can no longer carry out his normal day to day duties
to care for his young children.
Pre-sentence report
- The pre-sentence report portrays an unstable environment that the accused was raised in under the care of his parents. Perhaps,
this is the reason why the accused parents are no longer together as the accused mother is now with the step-father and his natural
father lives at Saanapu. The accused is the youngest of his parents’ five children and he left school at Year 11. He currently
lives with his maternal aunty at Levi, Saleimoa. His aunty speaks highly of him seen as a reliable and hardworking individual and
the offending had totally shocked her.
- The accused says in the pre-sentence report that he was filled with so much rage when he heard his step-father’s complaints
against him and his sister. He said that his anger got the best of him.
- The pre-sentence report confirms that the accused has not personally apologized to the victim (step-father). This is also confirmed
by the step-father in the victim impact report. However, the accused is said to have apologized to his mother. The mother is said
to have told the accused to face the consequences and apologize to the victim. To date the accused still has not.
Aggravating factors
- The following are aggravating factors of the offending:
- (a) Pre-meditation: The accused deliberately got hold of the machete and went to the main road to wait for his step-father. It was
clear that he intended to use the machete to assault his step-father which he did.
- (b) The use of a lethal or dangerous weapon (machete).
- (c) Vulnerability of the victim: The step-father had no idea that the accused was going to do what he did. He was walking on the main
road with little lighting when the accused attacked him. The accused continued to strike at the victim even when he was on the ground.
- (d) The number of strikes using the machete: The accused struck at the victim three times.
- (e) The force used: Doctor Areta Samuelu who gave evidence said the injuries were deep as it went to the bone. He (doctor) said it
would take a lot of force to sustain those injuries.
- (f) The injuries sustained were quite severe. The accused sustained injuries to the left arm and hand, a deep laceration behind the
left thigh, injury to the right hand with a severed right thumb. He (step-father) lost a lot of blood from the injuries sustained.
He underwent surgery straight away and another three operations later. The muscles and nerves to the left elbow or arm were severely
affected.
- (g) Impact of the injuries to the victim: The victim no longer has full use of his left arm/hand.
- The Prosecution in their submissions have identified a lot of the aggravating factors above. They have also referred to a number
of cases with similar circumstances as guideline to the court with regards to the sentence to impose.
Mitigating factors
- Prosecution makes no mention of any mitigating factors to the offending in their submissions. They acknowledged as mitigating factors
the accused young age and his first offender status.
- Counsel for the accused in his submissions asks the Court to consider provocation as a mitigating factor. Counsel refers to the fact
that the accused and his sister have always been the subject of the arguments between his mother and step-father and that the step-father
does not like the two of them living with them.
- The only mitigating factors personal to the accused are his young age and his previous good character. There is nothing adverse said
about the accused previous good character other than what the aunty says in the pre-sentence report, that he is a reliable and hardworking.
I will allow considerable discounts for those two factors. I will also allow for provocation as a mitigating factor to the offending.
Discussion
- There are no cases of attempted murder involving 17 year olds or 18 year olds that have been sentenced in the Supreme Court (at least
none on PACLII). The only case is Police v Magalo[1] involving a 17 year old but the charge of attempted murder was withdrawn and the defendant was sentenced on grievous bodily harm.
The circumstances of that case were very similar to the present case. A machete was used and serious injuries were sustained.
- I have looked to New Zealand for guidance in sentencing young persons’ as adults. The difference is, in New Zealand a 17 year
old is a young offender under the Child and Young Persons Act. This is the same under the UN Convention on the Rights of the Child.
In our Young Offenders Act 2007, a 17 year old is no longer a ‘young person/offender’. A 17 year old is therefore considered an adult. However, (in
my view) youth justice principles should underlie considerations of any sentence for this accused given his age.
- There is no doubt that the level of violence in the commission of this offending was quite substantial given the weapon (machete)
used and the number of times (3) it was used to strike at the victim (step-father). In any case involving violence of this level,
the sentencing principles to the forefront must be those of deterrence and denunciation. The Court must hold the accused accountable
for his actions and for the damage done to the victim of a severed thumb and being scarred for life.
- Offences which involve the use of machete, is prevalent in our society. It seems that our young people are resorting to using machetes
to commit offences. The safety of the general community is very much at risk from such offending therefore deterrence and denunciation,
are very much at the forefront. A strong message needs to be sent out to our young people (and others) that such behavior or offending
is not tolerated.
- An appropriate sentence is one that would deter the accused and other young people from similar behavior in the future. The level
of sentence to be imposed might have some level of deterrence in that it sends not only to the accused but other young people, that
there are consequences for such behaviors.
- It is desirable to keep young offenders in the community as far as that is practicable. However, the court can impose a sentence
of imprisonment if that is necessary to achieve the purposes of sentencing. In the circumstances of this offending, a custodial sentence
is most appropriate to achieve those purposes of deterrence, denunciation of such behavior, accountability for such behavior and
most important of all the safety of the community.
Starting point
- The Prosecution submitted for 10 years starting point and an end sentence of 7 years. Counsel for the accused asks for leniency and
mercy of the court when imposing a sentence.
- The penalty for the offending the accused is charged with of attempted murder is maximum life imprisonment. The starting points
in cases of attempted murder where machete are used ranged from 9-15 years depending on the level of culpability or the circumstances
of each case. It is clear, that the accused level of culpability is very high.
- A starting point of 12 years is appropriate in the circumstances of this offending. The most significant mitigating factors are the
accused young age and his previous good character. I give 3years discount for age and 2 years for previous good character. I will
also give 6 months discount for provocation. This reduces the sentence considerably to 6 years and 6 months.
- The accused is convicted and sentenced to six years and six months imprisonment. He is to serve his imprisonment term at Oloamanu
Juvenile Centre.
JUSTICE TUATAGALOA
[1] [2013] WSSC 119 (15 August 2013)
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