IN THE SUPREME COURT OF SAMOA
Police v Malua & Anor [2016] WSSC 181

Case name: 	Police v Malua & Anor 	
		
Citation: 	[2016] WSSC 181	
		
Decision date: 	18 August 2016	
		
Parties: 	POLICE and MALUA MALUA & TAUMAFAI MALUA, males of Nuu-Fou (Defendants)	
		
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:	•	The accused Malua Malua is convicted of the charge of causing grievous bodily harm and sentenced to 8 months imprisonment. This is followed by 6 months supervision during which time he is to attend an anger management programme as directed by Probation.
•	The accused Taumafai Malua is convicted of causing grievous bodily harm and sentenced to 5 months imprisonment to be followed by 6 months supervision during which time he is to attend an anger management programme as directed by Probation.	
		
Representation: 	A. Tumua for Prosecution
Both Accused Unrepresented	
		
Catchwords: 	Grievous bodily harm – victim intoxicated and being a nuisance  provoking attack – early guilty pleas -  custodial sentences – family violence 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s.118(1) 
Family Safety Act 2013 ss. 2; 17 	
		
Cases cited:	Faafua (Vili) v Police [1980-1993] WSLR 550 
Police v Gali [1999] WSSC 19 (29 September 1999);	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MALUA MALUA & TAUMAFAI MALUA both males of Nuu-Fou
Accused

Counsel:
A. Tumua for Prosecution
Both Accused Unrepresented

Sentence: 18 August 2016

S E N T E N C E
The charge
1.	The accused appear for sentence on one joint charge of causing grievous bodily harm, pursuant to s.118(1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment. 
2.	They pleaded guilty to the charge on 13 June 2016.
The offending 
3.	The Prosecution summary of facts proven at a disputed summary of facts hearing, says that on 4 May 2016, the victim returned home intoxicated and continued to drink at home. He was swearing and being a nuisance. The accused arrived at the victim’s home. The victim’s wife closed the door. The accused Malua Malua kicked open the front door and entered the victim’s home holding rocks. He walked straight to the victim and punched him on the head using the rock. The accused Taumafai Malua kicked open the back door of the victim’s home and entered whilst also holding rocks. He ran towards the victim and punched his head several times using the rock. Blood started coming from the victim’s mouth and nose and he started to feel numb. The victim’s wife and relatives intervened and stopped the accused.  The victim was taken to hospital. 
The accused
4.	As shown in the pre-sentence report, the accused Malua Malua is 28 years old and married. He has previous convictions for possession of narcotics..
5.	The accused Taumafai Malua is 21 years old, married with one child. He is a first offender.
6.	The accused are brothers. Their sister is married to the victim. They all used to live together at Nuu Fou in different houses.
7.	They told Probation that the victim arrived home drunk and was swearing and being a nuisance. 
8.	There are testimonials from the father of the accused, a member of their church and their Pastor. All say the accused are valuable members of the church, contributing actively to the church.
9.	There has been reconciliation between the families of the accused and the victim. The father of the victim has written to confirm this, and asks for the Court’s leniency for the accused.
The victim
10.	According to the victim impact report given to the Court, the victim is 29 years old. 
11.	He sustained a 2 inch cut to his forehead, three cuts to the back of his head, all requiring stitches. There was also a cut to the inside of his upper lip, badly bruised back and cuts to his hands.  He was bedridden for two weeks after the incident and missed work. He goes in weekly for his medical checks. 
12.	As a result of the offending, he and his wife and their children have moved to his family at Falefa. The accused have not apologised in person to the victim and he has not forgiven them, although he says he has no ill feelings towards the accused.
Aggravating features of the offending
13.	It is aggravating that the offence took place within the context of a domestic relationship. The accused and victim are brothers in law and this relationship falls within the definition of a ‘domestic relationship’ contained in section 2 of the Family Safety Act 2013. Section 17 of same Act states that the Court shall consider this fact as an aggravating factor when determining sentence.
14.	It is also aggravating that the victim suffered injuries as a result of the assault by the accused, the injuries to the head being of particular concern.  The head is an extremely delicate part of the body and injuries to the head can be life threatening.
15.	The accused attacked one person and sustained that attack until the victim’s wife and relatives intervened.
16.	The use of rocks to inflict injury is aggravating. 
Aggravating features in respect of the offenders
17.	It is an aggravating feature in respect of the accused Malua Malua that he has previous convictions, namely possession of narcotics.
Mitigating Factors
18.	I consider the reconciliation between the families of the accused and the victim a mitigating factor, although this is tapered by the fact that the accused themselves did not apologise. 
19.	I take into account that there was some degree of provocation from the victim, that is swearing and being a nuisance just before the offending occurred.
20.	Their favourable testimonials from their church and village leaders are mitigating factors.
21.	Their early guilty pleas to the charge are mitigating factors.
Discussion
22.	In cases where there is domestic violence, I am guided by the s.17 Family Safety Act 2013 in sentencing. This is a case of domestic violence whereby the offence took place within the context of a domestic relationship. Therefore the Court must have regard to, inter alia, the conduct of the offender towards the victim since the offence and any matter which indicates whether the offender;
a)	accepts responsibility for the offence and its consequences;
b)	Has taken steps to make amends to a victim, including action to address the negative impacts of the offence on the victim; or
c)	May pose any further threat to a victim.
23.	The Court must also have regard to evidence revealing the offender’s;
a)	Attitude to the offence;
b)	Intention to address the offending behaviour; 
c)	Likelihood of continuing to pose a threat to the victim; and
d)	Whether the offender has sought and received counselling or other assistance to address the offending behaviour, or is willing to undertake such counselling or seek such assistance.
24.	The reconciliation between the families of the accused and the victim indicates that the accused accept responsibility for their offending. Whether they are truly remorseful is another matter as they did not apologise in person. This is extremely important because if there is any hope of a continuing relationship between the accused and their sister, there must be this acknowledgement of the harm to the victim. It is apparent that the accused could not manage their anger which resulted in their offending. It is important that this is addressed to ensure that they do not commit similar offences. 
25.	Prosecution submits that a custodial sentence is appropriate with a starting point of 4 years imprisonment. Probation recommends a sentence of supervision. 
26.	Even if I accept there was some degree of provocation from the victim in this case, the violent response by the accused is overly disproportionate to what the victim did, that is swearing and being a nuisance. I also 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);
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.
27.	Having taken into account the aggravating features of the offending, there being no mitigating features of the offending, I find that a custodial sentence is appropriate in this case. I will take the starting point at 18 months imprisonment. 
28.	For the accused Malua Malua, I take the starting point of 18 months and add on 1 month for his previous convictions. This increases the starting point to 19 months. I then deduct 4 months for the reconciliation, 2 months for the degree of provocation and 5 months for his early guilty plea.
29.	For the accused Taumafai Malua, from a starting point of 18 months, I deduct 4 months for the reconciliation that was done, 4 months for his previous good character as in the testimonials and the fact that he has not offended before, 2 months for the degree of provocation and 3 months for his early guilty plea.
Sentence
30.	The accused Malua Malua is convicted of the charge of causing grievous bodily harm and sentenced to 8 months imprisonment. This is followed by 6 months supervision during which time he is to attend an anger management programme as directed by Probation.
31.	The accused Taumafai Malua is convicted of causing grievous bodily harm and sentenced to 5 months imprisonment to be followed by 6 months supervision during which time he is to attend an anger management programme as directed by Probation.

JUSTICE TUALA-WARREN