IN THE SUPREME COURT OF SAMOA
Police v Malaesala [2022] WSSC 71 (17 October 2022)

Case name: 	Police v Malaesala	
		
Citation: 	WSSC 71	
		
Decision date: 	17 October 2022	
		
Parties: 	POLICE (Informant) and MAMOE MALAESALA, male of Toamua-Uta (Accused)	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tuala-Warren 	
		
On appeal from:		
		
Order:	-	He is therefore convicted of causing grievous bodily harm and sentenced to 1 year and 8 months imprisonment.
-	He is convicted of being armed with a dangerous weapon and sentenced to 6 months imprisonment to be served concurrently with the sentence for GBH. 
-	His sentence is concurrent to his murder sentence. It would normally be cumulative having no connection to the earlier offence of murder. (see section 55(3) of the Sentencing Act 2016), however given that the remainder of his sentence is indeterminate, this sentence is to be served concurrently.	
		
Representation: 	F Ioane for Prosecution
I Sapolu for the Accused 	
		
Catchwords: 		
		
Words and phrases:	causing serious bodily injury with intent,
being armed with a dangerous weapon, drinking alcohol; The victim walked towards the accused and the accused struck him with a sharp object which he later understood to be a machete; The accused has previous convictions for false pretence in 1999, and murder in 2002; The use of a sharp object as a weapon; He attacked the head of the victim with the sharp object, the head being an extremely vulnerable part of the body; The victim was struck 2 times; He was provoked by the victim who approached him whilst intoxicated, and for stoning his house; the accused, knowing full well he was out on parole should have taken a different course of action rather than resorting to a sharp object.

Legislation cited:	Crimes Act 2013, Police Offences Ordinance 1961, (see section 55(3) of the Sentencing Act 2016).	
		
Cases cited:	His Honour Chief Justice Sapolu in Police v Fuiono [2011] WSSC 83 (26 July 2011); The Queen v Taueki[2005] NZCA 174, the Court of Appeal; Tele’a v National Prosecution Office [2017] WSCA 4 (31 March 2017); Attorney General v Matalavea	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

MAMOE MALAESALA, male of Toamua-Uta
Accused

Counsel: 
F Ioane for Prosecution
I Sapolu for the Accused 

Sentence:	17 October 2022

SENTENCE
The charges
1.	The accused appears for sentence on two charges, one of causing serious bodily injury with intent pursuant to section 118(1) Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment, and one charge of being armed with a dangerous weapon pursuant to section 25 of the Police Offences Ordinance 1961 which carries a maximum penalty of 1 year imprisonment.
2.	   On 7 September 2021 when the matter was called for hearing, the accused through Counsel changed his plea from not guilty to guilty and he was granted leave to do so.
The offending 
3.	   According to the summary of facts, on 3 April 2020, between 10pm and 11pm, the victim and his cousin were drinking alcohol at the cousin’s place. Afterwards the victim’s younger brother came home and told them that the accused and his siblings beat him up. The victim and his cousin then went to the house of the accused and asked the accused’s cousin who beat up his younger brother. While they were speaking to the accused’s cousin, rocks were thrown at the accused’s house so the victim and his cousin ran away. The accused’s family threw rocks and the victim and his cousin who were standing under a light post, and the victim and his cousin responded by throwing rocks back.
4.	  The accused who was sleeping was woken by the tauaiga maa. He went to check on his mother who was struggling to breathe. The victim walked towards the accused and the accused struck him with a sharp object which he later understood to be a machete. The victim was very drunk and continued to advance towards the accused. The accused struck him again. The strikes landed on the victim’s head and facial area. The accused then walked away leaving the victim at the scene. As a result, the victim sustained lacerations to the right temple of his head and the left side of his jaw.
The accused 
5.	   The accused is 44 years old. He was released on parole in 2013, is now married and has 5 children. He has been tending to the family plantation prior to this offending. 
6.	  He says that his mother’s home which is next door was stoned by the youths of Aele but he remained with his mother and did not commit this offending. He maintains his innocence even after he was granted leave to change his plea.
7.	  The Pulenuu of his village has written about his commitment to, and hard work for the village. His pastor has also said the accused is an elder within his church, looks after his mother and family and is a born again Christian. 
8.	  His wife speaks highly of him and says he is hardworking and supportive of their family.
9.	  The accused has previous convictions for false pretence in 1999, and murder in 2002.
The victim 
10.	   The Summary of facts says that the victim is 36 years old. He is single and unemployed. It says that the victim sustained a laceration on the right temple of the head and a deep laceration on the left side of his jaw. 
Aggravating features of the offending
11.	The aggravating features of this offending are;
•	The use of a sharp object as a weapon;
•	He attacked the head of the victim with the sharp object, the head being an extremely vulnerable part of the body;
•	The victim was struck 2 times;
•	The victim suffered two injuries as a result.
Aggravating features in respect of the offender
12.	   The accused has a previous conviction, for murder in 2002. 
13.	   In determining the weight of aggravation to be found in previous convictions, it is helpful and important to canvass again the decision of His Honour Chief Justice Sapolu in Police v Fuiono [2011] WSSC 83 (26 July 2011) in which he says;
Whilst previous convictions are relevant to establish the character of an accused for sentencing purposes and whether he has a predilection to commit a particular type of crime, a sentencing Judge should be on guard against sentencing an accused twice for the same offences on which he had previously been convicted and sentenced. This has been explained in many cases but it would be sufficient for present purposes to refer to Sentencing Guide (1994) by G G Hall where the learned author said at 1.6.12, B/191: 
"Regard may be had to an offender's record when imposing sentence. This matter is not without its difficulties as the Court has to reconcile two principles; on the one hand the acceptance of the preventive purpose of punishment, and, on the other, the rejection of punishing an offender again for earlier offences: R v Ward [1976] 1 NZLR 588. In that case the Court of Appeal said that an authoritative statement of the policy which the court should adopt where it thinks it necessary to protect the public from the depredations of persistent offenders is to be found in an earlier judgment of the Court pronounced by Sir Michael Meyers CJ in R v Casey [1931] NZLR 594, 597 where he said:
"The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly".
"The compromise adopted by the Court of Appeal is that previous convictions may be examined to establish the character of an offender and to assist in the determination of the punishment that is appropriate for a person of that character for the particular offence committed: see eg R v Howe [1982] 1 NZLR 618. See also R v Ottewell [1970] AC 642, 650, [1968] 3 ALL ER 153, 158 (HL). Previous convictions are regarded as being relevant to a prediction of the offender's future behaviour, and to the determination of the likelihood of an offender responding positively to a particular form of sentence.
"While the number and nature of previous convictions is a significant factor in sentencing (as it is illustrative of contempt for authority, and is thus relevant to an assessment of culpability), primarily regard must be had, when determining the appropriate sentencing level, to the intrinsic nature and gravity of the offence charged. A sentence must not be increased merely because an offender has previous convictions, with the result that he is thereby punished twice for the same offence: Casey (above); R v Power [1973] 2 NZLR 617 (CA); Baumer v R [1988] HCA 67; (1988) 166 CLR 51 (HCA).
"A person is not to be sentenced on his or her record. Criminal record is relevant to the extent that if the offender has no previous convictions he or she is generally entitled to substantial mitigation as a first offender (see para 1.6.6). In relation to the length of the offender's criminal record, mitigation progressively becomes less significant until it becomes ultimately non-existent.
The learned author of Sentencing Guide (supra) then went on to say:
"The second feature identified in the extract from the judgment in R v Casey [1931] NZLR 594 and re-affirmed in R v Ward [1976] 1 NZLR 588 is that the commission of several offences of the same or similar type will normally result in an offender receiving a more severe sentence on the basis that the previous convictions indicate a predilection to commit a particular type of crime. Previous offences may be so numerous and so persistent that a lengthy sentence of imprisonment needs to be imposed because of the need to remove the offender from the community in order to protect its safety, and, where appropriate, its property: Rapana v Police (High Court, Auckland AP281/91, 28 November 1991, Tompkins J).
14.	   I am mindful that any uplift to sentence does not punish the accused twice for an offence which he has been convicted, and served most of his sentence, but will achieve the purpose of protecting the public. I therefore will not uplift the sentence for the previous conviction of the accused, given that his parole has been recalled and he will be serving the remainder of his sentence for murder.
Mitigating Factors 
15.	   The mitigating factors in favour of the accused are;
•	His belated guilty plea;
•	His contribution to society while he was out on parole;
•	His remorse; and
•	He was provoked by the victim who approached him whilst intoxicated, and for stoning his house.
Discussion 
16.	   Prosecution has recommended a starting point of 5 years imprisonment.
17.	   Defence Counsel has on behalf of the accused submitted that two factors are relevant to his offending, alcohol and provocation. It is submitted that the young men who threw rocks at his mother’s house were intoxicated and the throwing of the rocks provoked the accused. His mother was examined by a doctor more than a year after the incident. The doctor said that she appears well, apart from her blood pressure. The doctor suspects she is hypertensive. This report is of limited relevance to me as it is not a report about what happened on the night in question. 
18.	   Defence Counsel submits that given the provocation, the appropriate starting point is 3 years imprisonment.
19.	   In The Queen v Taueki[2005] NZCA 174, the Court of Appeal stated;
Matters reducing the seriousness of GBH offending
[32] Matters which may be seen as leading to lower starting points are:
(a) Provocation: Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence. 
20.	Provocation as submitted by Counsel is from the victim throwing rocks at the accused home which shocked his mother, and the victim advancing towards the accused.
21.	The Tele’a v National Prosecution Office [2017] WSCA 4 (31 March 2017) case helpfully set out bands for the offence of grievous bodily harm;
27.	Taueki was a significant decision both for its methodology and for the guideline bands it provided. The methodology was usefully summarised in Attorney General v Matalavea at [15] as follows:
In order to compare this case with others we adopt the now conventional approach of identifying a starting point for the conduct, viewed objectively without reference to Mr Matalavea’s personal circumstances, before turning to those factors as well as others relied on in mitigation.
28.	For intentional grievous bodily harm, the starting point in Taueki was to be taken from a system of three bands of ascending seriousness:
(a)Band one: 3-6 years;
(b)Band two: 5-10 years;
(c) Band three: 9-14 years.
29.	Explaining Band One, the Court in Taueki said this:
Band one [36] This band will be appropriate for offending involving violence at the lower end of the spectrum of GBH offences. It is not an appropriate band for offences of extreme violence or violence which is actually life threatening. We have set the lowest starting point in this band at three years for the reasons (and subject to the qualification) set out at [27] above. Where none of the aggravating factors referred to in [31] are present, a starting point at the bottom end of this band would normally be called for. Where one or more of those factors is present, a higher starting point would be required.
22.	The Court of Appeal then stated: “Broadly speaking, and with the odd outlier, grievous bodily harm attacks with a machete have tended to result in starting points of four to six years” [para 33].
23.	And went on to say;
34.	In the present case the Judge adopted a starting point of 18 months. We are satisfied that this was much too low. Although sentencing can never be a matter of mathematical analysis, it is difficult to see how the starting point could ever have been much less than four years. Four years would have accorded with the minimum of three years suggested in Band One of the Taueki plus an uplift of one year for the use of a machete. It would also have accorded with the general run of grievous bodily harm sentences in Samoa in recent years.
35.	Counsel in the case before us agreed that machete attacks are a frequent problem in Samoa. It is a matter of pure chance whether blows with a machete to the upper body result in death, permanent maiming, or something less. Deterrence is called for. Even on the most merciful of approaches, and reserving flexibility to sentencing judges, the starting point could not have been less than three years in this case.
24.	In considering a starting point for the accused, I take into account that the victim approached the accused, and continued to advance towards him after he was struck the first time. This provocation and the fact that the accused’s elderly mother was struggling to breathe as a result of the rock throwing, lowers the starting point in this case and I agree with Defence Counsel’s starting point.
25.	Having said that, the accused, knowing full well he was out on parole should have taken a different course of action rather than resorting to a sharp object. 
Sentence 
26.	Having regard to the aggravating features relating to the offending, I take 3 years imprisonment as a starting point for sentence.
27.	I deduct 6 months for his contribution to family and village since being out in the community. I deduct 3 months for his remorse and for his guilty plea, albeit belated, I deduct 7 months. 
28.	He is therefore convicted of causing grievous bodily harm and sentenced to 1 year and 8 months imprisonment.
29.	He is convicted of being armed with a dangerous weapon and sentenced to 6 months imprisonment to be served concurrently with the sentence for GBH. 
30.	His sentence is concurrent to his murder sentence. It would normally be cumulative having no connection to the earlier offence of murder. (see section 55(3) of the Sentencing Act 2016), however given that the remainder of his sentence is indeterminate, this sentence is to be served concurrently.
JUSTICE TUALA-WARREN