IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TUAOILETAU SAMAELI, of Faala Palauli
Defendant

Counsels: Ms RSM Titi for the prosecution
Mr LR Schuster for the defendant

Sentence: 9 February 2009

SENTENCING REMARKS OF NELSON J.

The defendant appears for sentence on a charge of attempting to murder one Mr Keith Martin, the owner and operator of Aganoa Beach Resort at Faala Palauli, Savaii. The defendant is a 22 year old male of that village and he was previously employed as a barman in the Resort but had been dismissed by the victim who suspected him of having an affair with his wife an accusation the defendant strongly denied. The victim also blamed the defendant for damaging vehicles belonging to the Resort which has led to police charges and the defendant being banished from the village of Faala Palauli. 

These matters had been simmering with the defendant for some time and in the early hours of Tuesday 25 March 2008 the defendant extracted his revenge. In his statement to the police the defendant said that he was angry with the victim because of the police charges and his banishment. He woke at about 1.00am, grabbed a small knife and set off on a pushbike from Maota where he was residing to Faala Palauli a distance of some five to six miles. At the three corner intersection by the seashore leading to the Resort, he dismounted hid the bike and approached the Resort from the sea swimming in Rambo-style. He found the house occupied by the victim and his wife and children, the door was unlocked and he entered the premises. The victim was asleep on the bed inside a mosquito net with his young son. The defendant did not hesitate and proceeded to stab the victim through the mosquito net three times. On the third strike the knife broke and the defendant fled back into the sea retracing his steps. He heard the victim calling out to the resort security guard for help and the defendant hid to avoid pursuit. Later he got on his pushbike and returned to Maota village. The defendant said in his statement to the police he knew the victim had been injured by each of the three stabs and further that he intended to kill the victim.

The medical reports on the victim indicate the victim suffered three separate stab wounds. One on the anterior aspect of the left side of the neck which fortunately did not penetrate any major cartoid or blood vessels, one to the left collar bone area and one to the left shoulder. The wound depths ranged from 0.5cm to 1cm and medical treatment consisted essentially of stitching and antibiotics.

Previous cases: 

As far as I can determine there are no reported cases of attempted murder involving the use of a knife as a weapon. All the reported attempted murder cases involve the use of a gun. These include Police v Tuitama a 1996 decision where the sentence was 4 years imprisonment; Police v Vaofanua a decision dated 8 December 2003 where a term of 6½ years was imposed; Police v Titi [2007] WSSC 91 where 5 years and 4 months was imposed and Police v Lea a decision dated 5 May 2008 where a machete was used but the charge there was not attempted murder but murder and the mandatory sentence of life imprisonment was applied by the court. 

There is not much guidance to be found from those cases but there are a number of reported cases where the charge has been grevious bodily harm involving the use of a knife as a weapon. These include Police v Reupena [2005] WSSC 22 where the victim swore at the accused and the accused struck her with a bushknife causing her left thumb to be almost severed. The accused had previous convictions for offences of violence and showed a propensity towards violence. He was sentenced to 2 years and 9 months imprisonment; Police v Toto [2006] WSSC at page 12, again provocation was present where the victim and wife had assaulted the defendant and the defendant used a bushknife to retaliate. He struck multiple blows, his sentence was 18 months imprisonment; Police v Taueu [2007] WSSC 93 a domestic violence assault where a jealous husband used a steak knife to stab his wife in the chest while they were in bed discussing their marital problems. A term of 2 years 5 months imprisonment was imposed; Police v Iosia [2006] WSSC 3 where the defendant caught the victim in his sisters bedroom. He struck the victim three times with a machete causing substantial and permanent injuries. A term of 3 years was imposed and that case also cites other grevious bodily harm authorities. 

Although these are cases for the lesser charge of grevious bodily harm they show that offending of this nature is viewed seriously by the court and it invariably attracts a sentence of imprisonment. 

Aggravating factors:

The prosecution refer to a number of aggravating factors in this case and these include the nature of the weapon used namely a knife, the nature of the offending this being an unprovoked attack on a sleeping defenceless victim in the early hours of the morning, the seriousness of the injuries as outlined in the medical reports, the pre-meditated nature of the offending because the defendant obviously planned his actions and executed them with deliberate intent, he cycled a lengthy distance at night to the scene, avoided the main entrance to the resort which was guarded by a sleeping security guard, swam to the beach fales and after the attack retreated along the same route. 

The prosecution submission also points to the consequences of the offending which are outlined in paragraph 10(d) of their submission as follows:

1.	the victims children have been experiencing nightmares often waking and crying that someone is outside their house at night.

2.	the victim now sleeps with a knife under his pillow and as a result of this incident he has had to keep a watchdog which was never needed before and which is not a welcome addition to a tourist resort.

3.	the victims family have had to deal with a substantial amount of trauma and the victims perspective of this country as a safe place has been compromised.

Finally the prosecution referred to the prevalence in our community of offences of violence involving the use of a weapon. See the above cited authorities. 

Mitigating factors:

But there are also factors in the defendants favour as pointed out by his lawyer, Mr Schuster. The defendant is a first offender and Mr Schuster has pleaded his case on the basis that he is a young man who made a mistake, regrets his actions and now seeks a second chance. He has also stated that the defendant has apologized to the victim and the victims wife outside the court in the presence of the investigating officer when the defendant entered a change of plea to the attempted murder charge. He also says the apology was accepted by the victim and his wife. However I do not give that matter great weight for two reasons: firstly acceptance of an apology has not been confirmed by the Probation Office or confirmed by the police plus even if it is true, the defendant has had ample time to effect an apology and has only elected to do so at his convenience and on the court door step when it became clear that he was facing dire consequences. And finally the apology is not in accord with our aganuu and fa’asamoa which in serious cases requires a full ifoga to be performed. 

What I do give some weight to as pointed out by Mr Schuster is the defendants guilty plea which has spared the victim and his family further trauma and the fact that he has been banished from his home village which is a partial punishment for his crime.

Decision:

The maximum penalty for attempted murder is life imprisonment. This is a case with serious circumstances. It involves an angry young man who planned an attack, traveled some distance and went to some lengths to execute his plan. He used a knife and delivered strikes to a vital area of the body. He did not stab the arms or the legs but aimed at the neck and upper torso. Had one of these stabs penetrated a major artery it is doubtful the victim would have reached Tuasivi hospital alive given where the attack occurred. The defendant also admitted to the police that he wanted to kill the victim. His method of attack was in the early hours of the morning to ambush a sleeping and unsuspecting victim and stab him not once but three times.

The prosecution have asked for a sentence of no less than 7 years in prison to be imposed on you. However I do not believe that is an appropriate sentence given that the highest sentence imposed by this court for attempted murder with a gun, which is a more lethal weapon, has been 6½ years in prison. I agree however that the seriousness of the offending in this case requires a high starting point to be taken for sentencing purposes. 

I take 8 years as an appropriate start point. I deduct 25% for the defendants late guilty plea that leaves 6 years. From that I deduct 1 year for the factors in your favour as outlined in the probation office pre-sentence report and also by your counsel that leaves 5 years. That I believe is the appropriate penalty considering all the circumstances. You will be convicted and sentenced to 5 years imprisonment. 

JUSTICE NELSON