SUPREME COURT OF SAMOA
Police v Tapusatele [2020] WSSC 50

Case name: 	Police v Tapusatele	
		
Citation: 	[2020] WSSC 50	
		
Decision date: 	16 January 2020	
		
Parties: 	POLICE v TAFESILAFAI IOSEFA TAPUSATELE male of Salesatele Falealili.	
		
Hearing date(s): 	-	
		
File number(s): 	S897/19, S900/19, S1015/19	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Nelson	
		
On appeal from:		
		
Order:	-	On the charge of causing grievous bodily harm you will be convicted and sentenced to 3 years in prison. 
-	On the other charge of armed with a dangerous weapon you will convicted and sentenced to 6 months in prison but this is a concurrent term.  Which means for these offences you will serve 3 years in prison.	
		
Representation: 	T Sasagi for prosecution
S Autagavaia on behalf of L Tamati for defendant	
		
Catchwords: 	armed with a dangerous weapon – grievous bodily harm – 	
		
Words and phrases:	Specially challenged deaf and dumb mute – seriousness of the offending	
		
Legislation cited:	 	
		
Cases cited:	Tele’a v National Prosecution Office [2017] WSCA	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
		
POLICE
Prosecution

AND:

	TAFESILAFAI IOSEFA TAPUSATELE male of Salesatele Falealili.
Defendant

Counsel:	
T Sasagi for prosecution
S Autagavaia on behalf of L Tamati for defendant

Sentence:	16 January 2020

S E N T E N C E
1.	The defendant was found guilty at trial that on the 4th of April 2019 at Salesatele Falealili he was armed with a dangerous weapon namely a bush knife.  And that on the same date and place he used the said bush knife to cause grievous bodily harm to the complainant Olive Mali’o who is a specially challenged deaf and dumb mute known in his village as the ‘gūgū’. 
2.	The courts ruling dated 22 November 2019 outlines all the facts but the salient facts are essentially as follows: on the day in question the complainant was working at his plantation using a sapelu.  Young children of the defendants family including his daughters were picking nonu nearby.  According to the defendant taking from trees that he had planted.  This angered the complainant because people had been stealing from his trees and from his plantation.  And so he began cutting the trees down.  His activities must have come closer and closer to the young girls because they became frightened and ran away and reported the incident to the defendant.  One of the young girls was the defendants daughter. 
3.	The defendant was also working this day at his own plantation and for that purpose had a sapelu of his own.  After hearing about the incident from the girls he completed work on his plantation and then headed inland to look for the complainant.  The defendant found the complainant eventually and a confrontation occurred.  The defendant claimed at trial that he was attacked first. But the court was satisfied from the evidence of two village boys who were in the vicinity “fai fafie” that the defendant attacked the complainant first.  According to them the defendant used his machete to cause injuries to the complainant.  
4.	The medical evidence establishes that the assault caused a cut to below to the complainants right thumb and more seriously a large injury to the complainants left leg.  I quote from the Victim Impact Report filed before the court;
“O le lima agavale o Oliva sa faapea ona lavea. E tūgā le manu’a i lona lima ma e fa filo na su’iina ai. O le vae agavale sa fa’apea foi ona tūgā le manu’a e mafua mai i le agaese lea sa fa’aaoga e le o lo o molia. O se vaega o le vae agavale lata i lona tapuvae sa fa’apena ona lavea. Ua motusia uaua o le vae, ta’e le ponaivi tele ma leisi tama’i ponaivi ua afaina foi. Sa fa’apea ona taofia i le falema’i i Poutasi i le po e tasi ona aumai ai lea i le falema’i i Moto’otua le Susuga ia Oliva ona o le tūgā tele o ona manu’a. O le taimi lenei ua lē toe āogā lava Oliva i se feau a le aiga. E le o toe mafai ona savali na’o ia ae ua alu i le to’oto’o ma e tatau lava ona iai se tagata e ta’ita’ia pe a savali. Ua le toe tutusa le malosi o Oliva talu ona uma le fa’alavelave pei ona tula’i mai.”  
5.	There is no doubting from this report the severity of the complainants injuries.  And this illustrates also the force used to inflict these injuries.  There was also evidence at trial from the complainant that the defendant strangled him and at one point put the tip of his sapelu to his chest and threatened him while he lay helpless and injured on the ground.

6.	Quite clearly from these facts Tafesilafa’i you were enraged by the complainants behaviour and you lost all self-control.  As a result, you inflicted substantial harm and caused to the complainant permanent injuries.  I read again from the Victim Impact Report where Olivas 61-year-old mother testified as follows;
“O Oliva sa fa’amoemoe iai le matou aiga i feau masani ona e ‘au malosi. O se tagata e galue malosi e le gata i totonu o le matou aiga a’o le nuu ma mea fa’a-le-lotu foi. Sa taulamua i mea fai a le nuu ona o se tagata fa’amoemoeina. Ae talu ona tupu mai le fa’alavelave ua le toe mafai ona auai Oliva i mea na masani ai.  Ua leai seisi ou te fa’amoemoe iai ona o tulaga ua iai le atalii.  Ua ou lagona le fa’anoanoa ma le mafatia tele ona o lenei mea ua tupu mai i si a’u tama. Ua le solo lelei foi mea e fai a lo matou aiga ona o le fa’afitauli ua tula’i mai ia Oliva.”
7.	The purposes of sentencing a criminal offender as prescribed by the law in the Sentencing Act 2016 includes the following: the sentence must hold the defendant accountable for harm done to the victim and to the community by his offending.  It must promote in the defendant a sense of responsibility and acknowledgment of the harm he has caused.  It must denounce the conduct in which the defendant was involved.  And it must deter the defendant and all other persons from committing the same or a similar offending.  The sentence must also reflect the seriousness of the offending and its gravity. 
8.	In this case it must reflect the fact that a lethal weapon namely a sapelu normally used for plantation work was what was used by the defendant. Many people are killed every year and injured by other people using sapelus.  The sentence must also reflect that the weapon was used to inflict severe and permanent injuries with the result that the complainant can never be restored to his pre-incident strength ability and mobility.  
9.	The defendants offending is also aggravated by the fact that after the assault he left the injured man cut and bleeding lying on the ground. And he callously waved goodbye to the nearby two boys and left the scene.  The boys testified to the court that it was the complainants cries and screams that led them to come to assist him and take him to the hospital.  If not for that the complainant could have died from loss of blood.
10.	The prosecution has suggested a further aggravating factor by virtue of s.7(1)(g) of the Sentencing but for reasons I do not propose to canvas I am of the view that s.7(1)(g) does not apply to the complainant. The matter was not addressed fully by counsel appearing in this case and it would not be appropriate to make any definitive ruling in that regard. Left for future consideration.
11.	The maximum sentence for causing grievous bodily harm is 10 years in prison by law.  As to an appropriate start point for sentencing the Court of Appeal in Tele’a v National Prosecution Office [2017] WSCA 4 remarked that normally assault using a sapelu will attract in this country a 4 to 6 years start point.  
12.	Considering all the relevant circumstances I am satisfied a start point of 4 years in prison reflects the seriousness of the offending.  That must be uplifted by one year to 5 years to reflect the severity of the attack and the permanent nature of the injuries caused by the defendant. In this case the strike by the defendant to the complainants leg was sufficient to break both major leg bones which we are all aware constitute some of the strongest bones in the human body.  Particularly in someone as hardworking as the complainant appears to have been prior to this attack.  
13.	From that start point Tafesilafai you are entitled to certain deductions for mitigating factors.  Firstly the defendant is of previous good character as testified to in the pre-sentence report which is supported by references that speak well of him.  The defendant also has a clean police record he is a first offender.  For those matters you will receive the usual deduction of 6 months from the start point of sentence, leaves 4½ years in prison.
14.	Second deduction is for the fact that it is now clear the defendant apologised as he should to the complainants family.  This was fully accepted as confirmed this morning by Mali’o to the court.  A 6 months further deduction will be accorded for that matter, leaving 4 years in prison. 
15.	It is also clear that the defendant has been banished from his village by the Alii and Faipule which is a substantial penalty.  To reflect that matter a further 1 year will be deducted from the balance of your sentence, leaves 3 years in prison.  
16.	The defendants lawyer has argued for a further deduction because the defendant was provoked into doing what he did by the complainants hehaviour towards his daughter and another younger sibling. I am of the view however that provocation does not apply in this case.  It is clear from the evidence heard at trial that after being told what the complainant had done in relation to the young girls, the defendant kept working to finish what he set out to do in his plantation. It was only after that he went in search of the complainant.  He eventually came across the two village boys doing fafie who pointed out where the complainant was working and then he approached the complainant resulting in the incident.  All this would have taken time to occur.  Giving the defendant ample opportunity to cool off and reconsider his actions.  Instead he chose to proceed looking for the complainant while armed with his sapelu.  And then proceeded to take actions which were out of all proportion to any provocation that was offered. 
17.	If the defendant had pleaded guilty to the offences, a trial would not have been necessary and he would have received a further deduction for his guilty plea.  But he did not take that course of action he elected to send the matter to trial and so therefore he is not eligible for a deduction for a guilty plea. There are no other deductions Tafesilafai that I can make in respect of your sentence according to the law. 
18.	On the charge of causing grievous bodily harm you will be convicted and sentenced to 3 years in prison. 
19.	On the other charge of armed with a dangerous weapon you will convicted and sentenced to 6 months in prison but this is a concurrent term.  Which means for these offences you will serve 3 years in prison. 
JUSTICE NELSON