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Police v Wilson [2016] WSSC 83 (27 May 2016)

SUPREME COURT OF SAMOA
Police v Wilson [2016] WSSC 83

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO. S279/16,
S425/16-S426/16

BETWEEN

P O L I C E
Prosecution

A N D

ASHLEY WILSON male of Taufusi, and BARRY MAFI male of Vaivase-uta and Saleaula, Savaii.
Accused

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 27 May 2016

S E N T E N C E

The charge

1. The accused Ashley Wilson (Ashley) a 17 year old male from Taufusi and Barry Mafi (Barry) an 18 year old male from Vaivase-tai appear for sentence on a joint charge of causing grievous bodily harm with intent, contrary to s.118 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment. To the charge both accused pleaded guilty at the earliest opportunity.
2. Ashley Wilson and Barry Mafi were jointly charged with two other accused but those two other accused were screened and assessed as suitable for the programmes of the Alcohol and Drugs Court and are now attending those programmes. They are therefore not appearing for sentence in this Court.
3. The victim is a 37 year old Fijian national residing in Samoa and attending the APTC at the Le Papaigalagala.

The offending

4. According to the prosecution’s summary of facts, on 6 February 2016 the victim and three friends went out to the RSA nightclub to have a drink. When the RSA nightclub was about to close around midnight the victim went outside where he met the accused Ashley. Having spoken to Ashley, the victim and Ashley exchanged words which led to Ashley punching the victim. As the victim was returning inside the RSA nightclub, one of his friends noticed that the victim had been punched in the face. The victim and his friends then left the RSA and crossed to the opposite side of the road to wait for a taxi. At that time, Ashley, Barry and their two co-accused ran over and beat up the victim and his friends. They punched and kicked the victim’s face and other parts of his body. The victim’s friends were able to escape leaving the victim behind. Ashley, Barry and their co-accused continued to beat up the victim. When the victim was able to escape and ran away, Ashley ran after the victim and caught him again. One of the co-accused then put his hands around the victim from behind while the other assailants continued to throw punches at the victim’s face. When the victim fell down one of the co-accused threw a large beer bottle which hit the victim’s face. A co-accused then kicked the victim causing blood to burst out from his face. Barry then kicked the victim’s face while he was still lying on the ground unconscious. Another co-accused then also punched the victim. When the victim was motionless, snoring, and bleeding profusely, Ashley, Barry and their co-accused ran off.
5. The accused was taken to the hospital the same night and was admitted for a few days. In addition to his unconscious condition, the following injuries were found on the victim’s body upon medical examinations: soft tissue injuries to the scalp and face, ruptured eye globe – repaired the same day at the operating theatre, small fractures of the nasal bones on the right, and likely aspiration pneumonities.
6. It appears from the pre-sentence report that this incident started off as a fist fight between the victim and his friends and Ashley, Barry and their co-accused when one of the victim’s friends swore at one of the co-accused. The victim’s friends were able to escape leaving the unfortunate victim behind. Not only were the victim and his friends under the influence of alcohol but also Ashley, Barry and their co-accused who had been drinking two large bottles of vodka before they came and drank at the RSA nightclub.

The accused

7. The accused Ashley had a low level of education. He left school before completion of Year 9 due to lack of interest in academic studies. He then stayed home helping out with normal family chores. In 2013, he obtained a job with the Samoa Port Authority but quitted after two months. He has been unemployed since that time.
8. Ashley has had previous appearances before the Courts. According to his pre-sentence report, he appeared before the Youth Court 2014 on a charge of causing grievous bodily harm and was discharged without conviction. On 27 February 2015 he appeared before the District Court on the charge of “use behaviour” and was again discharged without conviction. On 11 March 2016, he appeared before this Court on the charge of intentional damage and was sentenced to 12 months community supervision.
9. The accused Barry also had a low level of education having left school at Year 10. When his parents separated, he stayed with his aunty at Vaivase-tai. He had no formal employment but he helps out with his aunty’s stall at the Fugalei flea market.
10. Barry has also had previous appearances before the Court. On 9 March 2015 he appeared before this Court on the charge of robbery and was sentenced to 12 months community supervision. On 3 August 2015 he appeared again before this Court on the charge of theft and was sentenced to 2 months imprisonment. On 5 August 2015 he appeared before the District Court for breach of the conditions of his community supervision and was sentenced to 3 months imprisonment.

Aggravating features relating to the offending

(a) Degree of violence involved

11. This offending involves a high degree or level of violence. It involved many punches and kicks delivered to the victim’s body. The attack on the victim was persistent. When the victim ran off one of the co-accused ran after him and stopped him and the other assailants continued to attack the victim.

(b) Injuries to the victim

12. The injuries to the victim, including his unconsciousness, are another aggravating feature of this offending.

(c) Attacking the head

13. A number of punches and kicks were aimed and delivered to the head of the victim

(d) Vulnerability of the victim

14. After the victim’s friends were able to escape, the victim was by himself and was outnumbered by the accused and their co-accused who continued to beat up the victim. Even when the victim was lying on the ground defenceless and helpless the accused and their co-accused continued to attack him aiming punches at his face and delivering kicks to other parts of his body.

(e) Multiple attackers

15. This was not an individual attack by one person against another but a joint and concerted attack by several men on an individual.

(f) Impact of offending

16. There is victim impact report but the summary of facts shows that as a result of the injuries suffered by the victim he was hospitalised for a few days. The number of days should have been explicit from the summary of facts.
17. Influence of alcohol on the accused as suggested by the prosecution is not an aggravating feature relating to the offending.
18. In the leading New Zealand case of R v Taueki [2005] NZCA 174 on sentencing in grievous bodily harm cases, O’Regan J, in the delivering the judgment of the New Zealand Court of Appeal, said this:

Matters contributing to the seriousness of GBH offending

[31] We now turn to the features of offending which will be seen to contribute to the seriousness of the conduct and criminality involved in a GBH offence. We reiterate that the sentencing Judge will need to consider the combination of factors applying in a particular case, when assessing the appropriate sentencing band and the starting point within that band. The factors which we highlight are:

• (a) Extreme violence: The extent of the violence involved in the offending will have an obvious impact on the level of criminality. Where any violent conduct is prolonged that will also be relevant, as will violence which is unprovoked or gratuitous. This reflects s 9(1)(a) and (e) of the Sentencing Act.
• (b) Premeditation: The degree of premeditation and planning will also reflect criminality. Serious violence which can properly be classified as impulsive or a reaction to an unexpected event will generally be seen as less culpable than premeditated violence. This reflects s 9(1)(i) of the Sentencing Act.
• (c) Serious injury: Where the injuries suffered by the victim or victims are very serious, a higher starting point than in cases of minor injury will be called for. Section 9(1)(d) of the Sentencing Act applies. This is particularly the case where the injuries are potentially fatal or are such as to cause long term or permanent disability impacting on the victim’s quality of life. Counsel for Mr Taueki, Mr Snell, argued that the assessment of criminality should focus on the conduct of the attacker, not the consequences for the victim. He said that it can sometimes be a matter of luck how bad resulting injuries are. While that is true as far as it goes, it must be remembered that the offending to which this decision refers is the intentional inflicting of serious injury. An offender who acts with intent to cause grievous bodily harm and does, in fact, cause such harm cannot escape responsibility for the consequences of his or her actions. However, care has to be taken not to double count the level of violence inflicted and the seriousness of the injuries which result from it.
• (d) Use of weapons: The use of a lethal weapon such as a firearm or a knife will be a serious aggravating factor. In short, the more lethal the weapon that is used, the greater the aggravating factor will be. Where offenders use a broken bottle, the likelihood of very serious injury is high and this will also be a serious aggravating factor. Other examples are use of clubs, baseball bats and similar weapons which, particularly when aimed at the head, can cause significant and permanent injury. The use of a syringe with infected blood or an accelerant to set fire to the victim raise similar concerns to the use of a weapon. Where the use of a weapon is premeditated, the criminality will be worse. In particular, if the offender brings a weapon to the scene with the intent of its being used, that will be severely aggravating. Similar considerations arise if the weapon is brought to the scene for use as intimidation, because it can be anticipated that a weapon brought to the scene in such circumstances will, in fact, be used by the offender. Another relevant factor will be the potential for danger to the public, where, for example, a firearm is fired indiscriminately in a public place.
• (e) Attacking the head: Even where weapons are not used, attacks on the head of a victim can have particularly serious consequences. Thus, where a victim is subjected to a severe beating or kicking causing head injuries, the offender’s conduct will be treated similarly to offending involving the use of a weapon.
• (f) Facilitation of crime: Where a GBH offence involves the use of violence to facilitate the commission of another offence (for example rape) that will also be seen as an aggravating factor. That would not apply in the case of an offence under s 191(1), where this factor is an ingredient of the offence.
• (g) Perverting the course of justice: Similarly, where violence is used in an attempt to pervert the course of justice (for example stopping a person from making a complaint or testifying, or punishing a person for doing so), that will be an aggravating factor.
• (h) Multiple attackers: The greater the number of attackers and the greater the disparity between the number of the attacking group and the victim group, the greater the culpability will be.
• (i) Vulnerability of victim: Where the victim is particularly vulnerable (for example a child or where there is a disparity in size or strength between the attacker and the victim), that will also be a significant factor in the assessment of culpability. Section 9(1)(g) of the Sentencing Act applies. Breach of a protection order in favour of the victim will also be an aggravating factor. Where the victim is a child in the offender’s care, there will be the additional factor of breach of trust. Section 9(1)(f) of the Sentencing Act applies. Similar considerations arise with victims who are disabled in some way or otherwise defenceless.
• (j) Home invasion: Where the offending involves the invasion of the sanctity of the home, this will be a particularly important factor. Section 9(1)(b) of the Sentencing Act applies. As this Court noted in R v McLean [1999] 2 NZLR 263 at 266, the Courts have repeatedly emphasised the importance of recognising the sanctity of the home and insisted that violence occurring in a person's house is to be treated as an aggravating factor calling for a higher sentence.
• (k) Gang warfare: This factor was specifically identified in Hereora at 170 and in Mako at [49]. Where serious violence is perpetrated by members of a criminal gang or organised crime cartel, that would be a further aggravating feature.
• (l) Public official: Where the victim is a law enforcement officer or other public official (such as an ambulance officer or fire fighter) carrying out his or her duties, that will be a serious additional aggravating factor.
• (m) Vigilante action: Where the serious violence results from the actions of one or more persons taking the law into their own hands, acting out of revenge or using stand-over tactics for the enforcement of other obligations, that will also be an aggravating feature.
• .(n) Hate crime: Where the attack is inspired by racism, homophobia or hostility to any other group, that may also constitute an additional aggravating factor. Section 9(1)(h) of the Sentencing Act applies.

Aggravating features relating to the accused as offenders

19. The previous convictions of the accused, especially of offences involving the use of violence, are an aggravating features relating to them as offenders.

Mitigating features relating to the accused as offenders

(a) Young age

20. The young age of an offender is normally a mitigating feature relating to the offender. However, this factor must have been taken into account in mitigation when the accused were given sentences of community supervision. The accused do not seem to have appreciated it. I will therefore given limited weight to their young age as a mitigating feature relating to them as offenders.

(b) Early guilty plea

21. The guilty pleas by the accused to the charge against them at the earliest opportunity is a significant mitigating features relating to each of them as offender.
22. In R v Taueki [2005] NZCA 174, O’Regan J said at para [32]:
    • [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.
      • (b) Excessive self defence: Similarly, where a party has acted out of self defence but has gone too far, the fact that the attack initially commenced as an effort to defend himself or herself (or another) may be seen as reducing the seriousness of the offending.

Starting point

23. The prosecution has suggested a starting point of 5½ years of sentence in this case. In R v Taueki [2005] NZCA 174, O’Regan J said at paras [34]-[42]:

Bands

[34] Bearing in mind those factors, we now describe the proposed sentencing bands for GBH offending. We emphasise again that these are ranges of starting points, not final sentence. The bands are:

(a) Band one: 3-6 years;

(b) Band two: 5-10 years;

(c) Band three: 9-14 years.

[35] While these are similar to the Hereora categories, there are some differences. In particular:

• (a) The need to reflect the legislative policy in s 8(c) and (d) of the Sentencing Act requires that the highest band provide for a starting point of 14 years for the most serious of cases;
• (b) We have provided for some overlap in the margins of the bands, to reflect the fact that categorising GBH offending is an evaluative exercise involving the exercise of judgement, rather than a formulaic categorisation of criteria. We are endeavouring to maintain a degree of flexibility which appears to be missing from the Hereora categories.
• (c) We have extended the upper limits of each of the bands, reflecting the extension of the upper limit of the highest band to 14 years, and the need to accommodate the overlapping between the bands. This is not, however, intended to indicate a desire to increase sentencing levels for lower level offending. Rather, it broadens the sentencing discretion within each of the bands, allows for the application of ss.8(c) and 8(d) for the most serious offending and broadens the range of sentencing options for offending involving very serious violence or injury or where other factors require that the offending be regarded as at the serious end of the spectrum of GBH offences.

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.
[37] The following examples may assist with the application of the above principles:

• (a) Street attack: Where an offender has engaged in an attack on a person in a public street, in circumstances where the attack is impulsive (perhaps reacting to some perceived slight), no weapons are involved, and the grievous bodily harm cato the victim does not haot have a lasting effect, a starting point at the lower end of this range would be indicated. On the otand, where the attack features the use of a weapon (such as a fence paling found at the scee scene) or there are a number of attackers against a single victim, then a starting point of around five years may well be appropriate, again assuming that the grievous bodily harm does not have aing effect oect on the victim;
• (b) Domestic assault: A domestic assault by an offender on his or her spouse or partner (or former spouse or partner) which is impulsive, does not involve the use of a weapon and does not cause lasting injuries, but where the victim is properly classified as vulnerable, may require a starting point in the region of four years. Where there is a degree of premeditation or there is the use of a weapon (but, again, no lasting injuries), a higher starting point could be expected, perhaps five years or more.

Band two

[38] This band will be appropriate for GBH offending which features two or three of the aggravating factors referred to in [31] above.
[39] The following examples may assist in the application of that principle:

• (a) Concerted street attack: For a street attack in which a victim is set upon by a group of attackers in an attack involving the use of weapons found at the scene, a starting point at the lower end of band two would be indicated. If the attack involves blows to the head or other serious injuries are caused, or there is premeditation, then a starting point higher in the band two spectrum would be required;
• (b) Assault on Police officer: A GBH offence involving an attack on a Police officer in the course of his duty by a single attacker with the use of a weapon, where the attack is designed to avoid apprehension for other offending, but the injuries are not life threatening or lasting, would require a starting point at the lower end of band two. Where the attack involves multiple attackers or the use of lethal weapons, a starting point at the higher end of band two would be required;
• (c) Premeditated domestic assault: A domestic attack on the partner or former partner of the attacker which is premeditated and involves the inflicting of serious and lasting injury would require a starting point in band two. The appropriate point in that band would require evaluation of the seriousness of those factors. Where the attack involves the use of a weapon, particularly where it is brought to the scene, the starting point could be expected to be at the higher end of band two.

Band three

[40] Band three would normally encompass serious offending which has three or more of the aggravating features referred to in [31] above, where the combination of aggravating features is particularly grave.
[41] The following examples may assist:

• (a)Serious concerted street attack: An episode of street violence where multiple attackers set upon a victim in a premeditated attack, using weapons which they have brought to the scene for the purpose, and where serious and lasting injuries are inflicted on the victim will call for a starting point in the lower to middle range of Band 3. Where the victim is particularly vulnerable, or the attack has “hate crime” aspects to it, a higher starting point would be required. Where the victim is left with injuries which will have an ongoing impact on his or her enjoyment of life, a starting point at the top end of Band 3 will be called for.
• (b) Serious domestic assault: In a domestic attack situation, where the attack involves a premeditated home invasion with the use of a weapon brought to the scene, the victim is vulnerable and the injuries caused have a lasting effect on the victim, a starting point at the top of the Band 3 range may well be required;
• (c) Serious attack on Police: Where an assault on a Police officer by multiple attackers with weapons leading to a life-threatening injury, a starting point at or near the 14 year maximum may be called for.

Flexibility

[42] As the Court noted in Mako, these illustrations are intended for guidance only, and to minimise the need to refer to the large number of earlier sentencing decisions. But the suggested bands and starting points should be used flexibly, and where any particular feature or combination of features has some unusual character, the starting point should be adjusted to reflect that. As indicated at [30] above, sentencing Judges will also need to exercise judgement in assessing the gravity of each aggravating feature. The features of the offending in each case must be carefully assessed in order to establish a starting point which properly reflects the culpability inherent in the offending. Where there are multiple offenders with different levels of involvement in the offending, the actual culpability of each offender will need to be assessed. However, there is no requirement to draw fine distinctions: Solicitor General v Lam (1997) 15 CRNZ 18 at 25.

Discussion

24. Having regard to the need for deterrence in this type of case and the aggravating features relating to the offending, I will take a starting point for sentence of 5½ years as suggested by the prosecution in respect of both Ashley and Barry. I will add on 6 months for previous convictions. That increases the starting point to 6 years. I will then deduct 2 months for their young age. That leaves 5 years and 10 months. I will further deduct about 1/3 or 1 year and 10 months for their early guilty pleas. That leaves 4 years as the end sentence.

Result

25. Each of the accused is convicted and sentenced to 4 years imprisonment.
26. Any time that any of the accused has spent in custody pending the outcome of this matter is to be further deducted.

CHIEF JUSTICE