IN THE SUPREME COURT OF SAMOA
Police v Atonio [2013] WSSC 32

Case name: Police v Pase’e Atonio
Citation: [2013] WSSC 32
Decision date: 6 June 2013
Parties: 
POLICE as prosecution v PASE’E ATONIO male of Sataoa, Saluafata.
Hearing date(s): 
File number(s): FILE NO: S2041/12
Jurisdiction: CRIMINAL 
Place of delivery: MULINUU
Judge:  CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
Muriel T Lui and Tiffany Nelson for prosecution
Ameperosa Roma for accused
Catchwords: 
Words and phrases:
Legislation cited:
Cases cited:
Police v Mapu Farao Toli [2010] WSSC 4
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2041/12

BETWEEN
P O L I C E
Prosecution

A  N  D

PASE’E ATONIO male of Sataoa, Safata.
Accused

Counsel:
M T Lui and T Nelson for prosecution
A Roma for accused
Sentence:	6 June 2013

S  E  N  T  E  N  C  E 
The charges
1.	The accused was charged by the police with one count of attempted murder which carries a maximum penalty of life imprisonment and one count of causing grievous bodily harm which carries a maximum penalty of seven years imprisonment.  He pleaded not guilty to attempted murder but guilty to causing grievous bodily harm.  At trial, he was unanimously found guilty of attempted murder by the assessors.  He is now appearing for sentence on both counts.
The offending 
2.	The family of the accused and the family of the victim are adjoining plantation landowners at Sataoa-uta.  A dispute arose over the boundary of their lands.  This created tension and friction between the two families.  As a result, the victim cut down the posts and the barbed wire of the fence erected by the accused and his family as he believed that the fence had encroached onto his family’s land.
3.	Being concerned about the escalating dispute, the matai of the victim’s family referred the matter to the village council which met and decided to send representatives to settle the boundary between the land of the victim’s family and that of the accused’s family.  The village representatives found that the barbed wire fence of the accused’s family had encroached onto the land of the victim’s family and ordered that it should be moved back.
4.	It is not very clear whether it was on the same day or the following day that the accused went to his family’s plantation.  That was 8 November 2012.  He found his barbed wire fence being destroyed.  He then returned home to get a hammer and nails to fix his fence.  He then went back to his plantation.  After fixing his fence and while he was on his way back to his home he came across the victim who had just finished collecting ponesi from one of the families at Sataoa-uta.
5.	The accused and the victim gave somewhat conflicting accounts of what happened then.  By their verdict of guilty of attempted murder, the assessors must have accepted the victim’s account.  In terms of that account, the accused attacked the unsuspecting victim by striking at him several times with the machete he was carrying.  Some of the strikes missed but others landed inflicting serious injuries on the victim.  When the victim fell down, the accused delivered another strike at the victim’s head.  The victim tried to fend off that strike by raising his left hand. The machete struck his left wrist and as a result his left wrist was completely severed.  He then lost consciousness.  It was fortunate for the victim that a woman who saw what was happening called out: “Talofa e ia Apisai uam out lona ulu”.  The accused stopped and left the scene of this incident.
6.	The victim was then brought to the Tupua Tamasese Meaole Hospital in Apia.  The report by the doctor who examined the victim shows the following injuries on the victim: a deep open laceration over the left side of the face extending down to the lower jawbone, a deep laceration on the left arm, and complete amputation of the wrist.  The victim was admitted and discharged from the hospital eleven days later.
Victim impact report
7.	The victim impact report shows that as a result of this incident the victim has scars on the left side of his face from the neck to the lower jawbone, right wrist, and under his left arm.  He also lost his left hand.
8.	Because of those injuries, the victim’s physical strength and capabilities have been significantly impeded.  He still continues to have a speech impediment due to the pain and discomfort he is still experiencing in his left jaw.  This has also affected his eating patterns.
9.	The injuries inflicted by the accused will obviously have a permanent and lasting impact on the 34 year old victim for the rest of his life.  Nothing can bring back his left hand or remove the scars from his face and other parts of his body.
The accused
10.	The accused is a 37 year old planter from Sataoa.  He has a wife and baby daughter.  His wife and family depend for their sustenance on the income from his plantation.  He is also a first offender and the testimonials from his family, the pastor of his Church, and the pulenu’u of his village all show that he had been a person of good character prior to the commission of this offence.
11.	As a result of this offence, the accused has been banished from his village.  His family has also been penalised by the village and they provided a large fine mat, one cattle beast, and forty cases of herring for their penalty.  The accused’s family also provided a fine mat to the matai of the victim’s family.
The victim 
12.	The victim as already mentioned 34 years old.  He has a wife and runs a ponesi business.  The impact of this offending on him has already been set out.
The aggravating factors relating to the offending 
13.	The attack by the accused on the victim was vicious and sustained.  It did not stop until the victim was down and unconscious and a woman had called out: “Talofa e ia Apisai ua motu lona ulu”. Whether or not it was the call from that woman which made the accused stop, it was clear from the woman’s evidence that when she called out the accused stopped and left.  The use of a machete was also most dangerous and it is fortunate for the victim that he survived though seriously injured.  The victim was also in a vulnerable position as he was unarmed and smaller in built than the accused.
The mitigating factors relating to the offending and the offender
14.	In relation to the offending, there was a significant measure of provocation from the victim when he cut down the posts and barbed wire of the accused’s fence.  However, the accused’s conduct was also provocative of the victim because his fence encroached onto the land of the victim’s family.  
15.	In relation to the accused as offender, the fact that he is a first offender and a person of good character prior to the commission of this offence, that he has been banished from his village, and that his family had paid a heavy penalty to the village are mitigating factors.  Likewise, the fine mat given to the matai of the victim’s family as some measure of conciliation.  These matters have nothing to do at all with the offending that occurred.  But the law requires the Courts to take these matters into account when passing sentence.  
The decision 
16.	In Police v Mapu Farao Toli [2010] WSSC 4 which was a case of attempted murder using a gun, the Court was considering whether 10 or 12 years should be the starting point for sentencing.  Because it was considered in that case that 12 years as a starting point for sentence would be too sudden a change in the level of sentencing for cases of attempted murder, the Court decided to take 10½ years as the starting point.  However, the Court indicated that in a similar case in the future the starting point may go up to 12 years. Perhaps, what should be done is to have a range of starting points of say 10 – 12 years to choose from instead of fixing a specific term of years as the one and only starting point.  To do so would give the impression of setting a tariff sentence which applies across the board to all cases of attempted murder regardless of the particular circumstances of each case.  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.  However, it is perhaps time to consider setting a range of starting points for each offence in order to avoid any unjustified disparities in starting points or giving such an impression.  Such a range of starting points to choose from, depending on the aggravating and mitigating factors relating to the offending of the case at hand, would be consistent with the flexibility of the starting point approach.
17.	In the circumstances of this case, I have decided to accept the starting point for sentence of 10 years suggested by the prosecution.  This is based on the maximum penalty for attempted murder which is life imprisonment, the need for deterrence in this type of offence, and the aggravating and mitigating factors relating to the offending.  In this regard, I have taken the provocation from the victim as a mitigating factor relating to the offending but reduce the weight given thereto because the conduct of the accused was also provocative as his fence encroached onto the land of the victim’s family. In other words there was provocation from both sides.
18.	From the starting point of 10 years, I will deduct 18 months due to the fact that the accused is a first offender.  That leaves 8½ years.  I will deduct a further 2 years because of the banishment imposed on the accused and the penalty paid by his family to the village as well as the fine mat presented to the matai of the victim’s family.  That leaves 6½ years.  The accused is sentenced to 6½ years imprisonment.  Any time the accused has spent in custody pending the outcome of this matter is to be further deducted from that sentence.
19.	For the charge of causing grievous bodily harm to which the accused had pleaded guilty at the earliest reasonable opportunity, he is sentenced to 3½ years imprisonment.
20.	Both sentences to be concurrent.  

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution
Fepulea’i & Roma Lawyers for accused