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Police v Sefo [2023] WSSC 89 (20 December 2023)

IN THE SUPREME COURT OF SAMOA
Police v Sefo [2023] WSSC 89 (20 December 2023)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Prosecution

AND:

IOANE TAUPO SEFO, male of Nofoalii

Defendant

Counsel: E Tiitii-Lam for Prosecution
V Afoa for Defendant

Date: 20 December 2023

SENTENCING OF TUATAGALOA J

1. The defendant is to be sentenced on various offences committed on the 8^th & 13^th December and 25^th June 2023.

8th December 2019

2. The defendant is to be sentenced on the charges of burglary^[1] which carries a maximum penalty of 10 years and intentional damage^[2] which carry a maximum penalty of 7 years imprisonment.
3. According to the summary of facts by the prosecution the defendant unlawfully entered the victim’s house by removing the window screen wire to unlock the door. The removal of the screen wire caused damage to the window wooden frame valued at SAT$150.00. The defendant entered the house while the victim and her family were asleep. The victim woke up and saw the defendant in her house causing the defendant to flee. The defendant and the victim are from the same village of Nofoalii.

13th December 2019

4. On 13^th December 2019 the police apprehended the defendant for the offences committed on 8 December 2019 (above) and he was taken to the Faleolo Police Post where a routine body search was carried out by Police.
5. The defendant was found with loose marijuana leaves weighing 2.3g and 18 marijuana seeds on him. The defendant was charged and has pleaded guilty to the following:
   • (i) possession of narcotics namely loose marijuana leaves weighing 2.3g^[3] with a maximum penalty of 14 years imprisonment; and
   • (ii) Unlawful cultivation of prohibited plants namely 18 marijuana seeds^[4] also with a maximum penalty of 14 years imprisonment.
6. The defendant was living with his family at Nofoalii at the time he committed the above offending.

Discussion

7. The defendant on 3 December 2021 on similar charges of being in possession of loose marijuana leaves and 51 seeds of marijuana was sentenced to 12 months’ supervision term to follow an imprisonment of 1 year and 10 months that he is serving for burglary, theft and intentional damage. According to his previous conviction record, he would be serving his supervision term of 12 months starting August 2023 or thereabout.
8. The circumstances of the present set of offending are exactly the same as those committed in 2017 and sentenced on 3 December 2021. That is, he was apprehended for a theft charge, the police carried out a routine body search and found on him marijuana substances.^[5] I reiterate the concern raised by the Chief Justice in his sentence of 3 December 2021 of the delay in the prosecution bringing that matter to Court to be dealt with when he was charged in 2019. The same goes with the present matters. The other concern is that a supervision sentence had been imposed on 3 December 2021 to follow the sentence of imprisonment imposed on 14 October 2020. The offending that he is to be sentenced with were not committed while on supervision but offending committed before 3 December 2021 sentence. There is no explanation as to why these two sets of offending were not dealt with together with those sentenced on 14 October 2020 and 3 December 2021. If these matters were sentenced in 2020 or 2021 the defendant would have served most, if not completed any imprisonment or supervision terms imposed.
9. Although, a supervision term can be suspended to a subsequent sentence of imprisonment pursuant to section 50 of Sentencing Act 2016. For the above reasons I will not invoke section 50. In fairness, the defendant is convicted and discharge for the offending of 8^th and 13^th December 2019.
10. The above is not applicable to the offending of 25^th June 2023 for this offending is recent and could not have been dealt with in 2019 or 2021. This set of offending is also completely different in nature.

25th June 2023

11. The defendant at this time was living with his de-facto wife at her family at Fasitoo-uta. According to the summary of facts by the prosecution the wife’s mother became concerned upon hearing noises coming from the room where the defendant and his wife sleep. The mother walked over to check if everything was alright and saw the defendant sitting on her daughter’s stomach strangling her with his hands around her neck. The mother saw that her daughter was gasping for air and called out for help. A male relative walked over and punched the defendant on the face who was still at that time strangling his wife. The defendant fell off and ran out of the house. The defendant while outside armed himself with stones and threw them at the house. The defendant’s wife called out to the defendant to stop and walked into her mother’s room holding their four (4) month old baby. The said room do not have any windows and the defendant’s father was fixing the light bulb when one of the stones thrown by the defendant hit the father in law on the forehead.
12. The defendant is charged and has pleaded guilty to the following charges:
    • Grievous bodily harm to Joshua Seumanutafa (father-in-law) with maximum penalty of 10 years’ imprisonment;^[6]
    • Assault on Sao Taofia (de-facto wife) with a maximum penalty of 12 months’ imprisonment;^[7]
    • Armed with a dangerous weapon namely stones with a maximum penalty of 12 months’ imprisonment;^[8] and
    • Throwing stones with a maximum penalty 12 months’ imprisonment.^[9]
13. The aggravating factors of these offending are: (i) it is domestic violence, there was the use of a rock, (iii) it was premeditated (iv) there are two victims and (v) there was injury. The only mitigating factor to the benefit of the defendant is his early guilty plea.
14. The Prosecutions on a totality approach for the offences of 8^th and 13^th December 2019 recommends for a custodial sentence with a starting point of 2 years and 6 months or 30 months. Defence Counsel in her submissions says that the defendant acknowledged the number of offending’s he is appearing for and the seriousness of the charges. Defence Counsel seeks leniency of the Court in passing sentence on the defendant.
15. In the circumstances of this offending I find appropriate the starting point of three (3) years for the lead offence of grievous bodily harm in a totality approach. I accept as mitigating factors the following - the defendant’s young age, remorse on his part and his early guilty plea and deduct 6 months; leaving 30 months to which I then give a 25% discount for his early guilty plea of 8 months. The end sentence is 22 months’ imprisonment for the lead offence of grievous bodily harm.
16. As mentioned earlier the offending of 2023 is of different nature from those he is currently serving an imprisonment term and those committed in 2019. Section 50(6) of the Sentencing Act 2016 is invoked to suspend the supervision term imposed on 3^rd December 2021.
17. The defendant is convicted and sentenced as follows:
    • Grievous bodily harm - 22 months’ imprisonment;
    • assault - 8 months’ imprisonment;
    • armed with a stone - 6 months’ imprisonment; and
    • use of a stone - 6 months’ imprisonment.
18. The above sentences to be concurrent, to be served after the current imprisonment term. That is, this imprisonment term of 22 months’ is to follow the current imprisonment term that he is serving.

JUSTICE NIAVA MATA TUATAGALOA

^[1] Crimes Act 2013, s174.
^[2] Crimes Act 2013, s184(2).
^[3] Narcotics Act 1967, ss7 & 18
^[4] ibid., s6(1)(b)
^[5] See Police v Ioane Sefo [2021] WSSC 60 (3 December 2021)
^[6] Crimes Act 2013, s118(1)
^[7] Ibid, s123
^[8] Police Offences Ordinance 1961, s25
^[9] Ibid, s26