THE SUPREME COURT OF SAMOA
Police v Sualii [2018] WSSC 38

Case name: 	Police v Sualii	
		
Citation: 	[2018] WSSC 38	
		
Sentence date: 	7 March  2018	
		
Parties: 

	POLICE v SULI SUALII aka IOANATANA SOALII male of  Saanapu 
	
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tafaoimalo Leilani Tuala-Warren	
		
On appeal from:
Order:	1.	Convicted of attempted murder and sentenced to 9 ½ years imprisonment. 
2.	Any time spent in custody to be deducted	
Representation: 	O Tagaloa and A Matalasi for Prosecution
M Soonalole for the Accused 
	
Catchwords: 	Attempted Murder 
	
Words and phrases:		
Legislation cited:	Crimes Act 2013, section 104
	
Cases cited:	Police v Faapuaa [2015] WSSC 97(14 September 2015)
Police v Tinotaua [2016] WSSC 67 (22 March 2016)
Police v Atonio [2013] WSSC 32(6 June 2013)
Bragovits v National Prosecution Office [2017] WSCA 2	
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SULI SUALII aka IONATANA SOALII male of Saanapu
Accused

Counsel:
O Tagaloa and A Matalasi for Prosecution
M Soonalole for the Accused 

Sentence: 7 March 2018

SENTENCE
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. 
2.	He was found guilty by a panel of assessors after a defended hearing on 14 December 2017.  
The offending 
3.	According to the evidence, the offending took place outside Fugalei market on 2 June 2017. The victim and the accused both have stalls at the market. They got into a verbal argument after the accused picked on one of the victim’s friends who was sitting outside the market. The victim while arguing with the accused, threw the first punch which hit the accused. The accused wrestled with the victim and while the victim was on the ground, the accused pulled out a knife and stabbed the victim 4 times.
4.	The medical examination of the victim revealed 4 stabs wounds to the back. The doctor said that the stab wounds were category 1 requiring urgent medical attention. The victim was hospitalised for 2 weeks and 4 days. 
The accused  
5.	As shown in the pre-sentence report, the accused is 25 years old, married with 2 children and works at Return to Paradise Resort. 
6.	He maintained his innocence to Probation, although he says he and the victim have reconciled. This was denied by the victim.
7.	Probation says that he has evaded them in relation to his previous sentence of supervision.
8.	He has previous convictions for causing injury, armed with a dangerous weapon and throwing stones in 2016.
The victim 
9.	The victim in this matter is 27 years old from Vaigaga. He is married with 2 children and has a vegetable stall at the market.
10.	He said in his evidence that he did not realise at first that he had been injured by a knife.
11.	He recalls arriving at the hospital and when he woke the next morning, he could not move. For a period of time he could not use his left hand for heavy lifting.
12.	He says there has been no apology from the accused and no reconciliation with the accused.
Aggravating features of the offending
13.	It is aggravating that the accused used a weapon, namely a knife to inflict injury. This is a lethal and extremely dangerous weapon, potentially life threatening.
14.	The accused attacked the victim while the victim was on the ground and in a defenceless position. 
15.	He stabbed the victim 4 times and it is very fortunate the victim survived.
16.	The victim suffered category 1 injuries which according to the Doctor are significantly serious to warrant urgent medical attention.
17.	The physical impact on the victim is aggravating as he could not use his left hand for a period of time.
Aggravating features relating to the offender
18.	It is an aggravating feature relating to the offender that he has previous convictions for causing injury, armed with a dangerous weapon and throwing stones in 2016.
19.	These convictions for serious and violent offending are similar and closely linked in time to his present offending. He was sentenced to a community based sentence which he did not abide by according to Probation.
20.	In my view, these convictions are relevant to the question of uplift. 
Mitigating Factors
21.	I take into account his village penalty and his banishment from the village.
22.	I take into account his personal circumstances that he is a young man with a young family.
23.	Defence Counsel submits that there was a degree of provocation from the victim throwing the first punch.
Discussion
24.	Prosecution submits that an imprisonment term is appropriate with a starting point of 9 years.
25.	Defence Counsel submits that a starting point of 6 years imprisonment is more appropriate.
26.	Attempted murder carries a maximum sentence of life imprisonment, which reflects the seriousness of this offence.
27.	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.
28.	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.” 
29.	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.
30.	The Court of Appeal in Bragovits v National Prosecution Office [2017] WSCA 2, stated that;
“…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  sentencings can 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 involves the 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 New Zealand, for example, the GBH bands in Taueki[3] are often used. 
31.	The Court of Appeal went onto say;
We note that in Police v Toli[4] and again in Police v Atonio,[5] the Chief Justice discussed whether the starting point for  attempted murder  should go up to at least 12 years and whether a range was required. While we generally agree with the Chief Justice’s comments in these cases, we are doubtful that an  attempted murder  sentencing guideline specific to Samoa is appropriate.
Were there to be one, it would need to recognise and accommodate the Sentencing Act 2016 passed in November 2016. It contains principles of sentencing, including:
6. Principles of sentencing or otherwise dealing with defendants - In sentencing or otherwise dealing with a defendant, the court must: 
(a) ......
(b) ......
(c) impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the defendant make that inappropriate; and 
(d) impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the defendant make that inappropriate.
It follows that in relation to the most serious of cases the starting point maximum must reflect the statutory maximum, here 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.
A Samoa specific guideline would also represent a departure from the approach taken in other jurisdictions. Moreover, it would require proper consideration and argument in the context of an appropriate appeal. 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[6] where the judge used the Taueki guidelines for GBH to good effect. 
32.	In R v Taueki[2005] 3 NZLR 372,  the New Zealand Court of Appeal set out sentencing bands for Grievous bodily harm which are helpful here. The bands are;
1.	Band one:3-6 years; (violence at the lower end of the spectrum)
2.	Band two: 5-10 years;(two or three aggravating factors)
3.	Band three: 9-14 years (serious offending)
33.	Band three is appropriate here as it serious offending whereby a weapon was used to cause life threatening injuries.
34.	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 he stabbed the victim 4 times causing serious injuries. 
35.	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 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.
36.	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 thought of the consequences. The use of knives on people will be met with  custodial sentences.
37.	Even if there was a degree of provocation from the victim who punched the accused first, 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 in  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 provocation from the victim.
39.	Having taken into account the aggravating features of the offending, I will take 11 years imprisonment as a starting point for sentence. This is uplifted by 12 months for his previous convictions for similar serious and violent offending taking the starting point to 12 years imprisonment. I will deduct 2 years for his village penalty and his personal circumstances. This leaves an imprisonment term of 10 years. I deduct a further 6 months for the provocation. 
The result
40.	The accused is convicted of attempted murder and sentenced to 9 ½ years imprisonment. 
41.	Any time spent in custody to be deducted.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN