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Police v Tele'a [2020] WSSC 100 (16 October 2020)

SUPREME COURT OF SAMOA
Police v Tele’a [2020] WSSC 100

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

SANELE TELE’A male of Satapuala.
Defendant

Counsel:
D Fong and M Alai for prosecution
D Roma for defendant

Hearing: 10 September 2020

Sentence: 16 October 2020

SENTENCING NOTES OF NELSON J

1. Defendant faces two charges: that at Satapuala on the 14^th of June 2019 with intent to cause grievous bodily harm, caused grievous bodily harm to Ipuniu Elia Ga, male of Satapuala; and on the same date same place was armed with a dangerous weapon namely a knife, not being so armed for a lawful purpose.
2. He pleaded not guilty to both and maintained at trial he used the small knife he was carrying to defend himself from being assaulted by the complainant and his children.
3. Police evidence was that the heavily intoxicated defendant after 11:00 pm on night of Friday 14 June 2019 was on the road swearing and making alot of noise in front of the Latter Day Saints faifeau’s house. The 59-year-old complainant is a neighbour of the faifeau. Came out and told off defendant and tried to calm him down. Defendant was in possession of a stone. The complainant grabbed him and in the struggle stabbed by the defendant.
4. Complainant said his children came to help him and took him to hospital. First at Leulumoega District Hospital then by ambulance to main hospital at Motootua. There his injuries were noted: Fully conscious, stab wound to left side of abdomen 7-8 cm in length 3-4 cm deep, plus lacerated wound left elbow, no fractures seen.
5. Photos of complainants injuries taken by Police confirm injuries deep and serious. Complainant said he was admitted to Motootua for two days. During which time defendants parents and matais of the family tendered to him a formal apology which he accepted. He also said the defendants family “asi” him in hospital. Complainant seems fully recovered – only the scars remain.
6. Evidence of the complainants 20-year-old son Elia Nofoaiga who followed his father onto the road was that the complainant was trying to remove the defendant from the road. In the course of that complainant injured. It was at that time he jumped in and fought with defendant and others also joined in causing the defendant to flee the scene.
7. Defendant elected to give evidence and said he had previously been drinking at another house with his friend Jessie and other boys drinking pre-mixed spirits and playing pelē. A vevesi occurred as often happens with drinks over card games. He was thrown out of the party, was angry so he threw rocks at house and ran away. In front of Latter Day Saints compound confronted another group of boys – he was “chooing” on road. Complainant came up to him – slapped and punched him and he retaliated. “Fasi kele” – group assault on him with punches and rocks. He pulled out the knife which he had previously picked up in his travels, swung it around randomly to defend himself from the onslaught, not know injured anyone. When he got the opportunity, ran away.
8. Although defendant maintained he too was injured in the melee, no evidence he went or was taken to hospital for treatment. He said when heard Police looking for him he went to Police Station on the Monday. He agreed he made no police complaint about being assaulted by a group of people. Neither did he reveal this important piece of information to Police. He was asked but declined to make a Police statement. He also testified there were many people at the scene of the assault on him as bingo had just concluded but called no witnesses to corroborate his version of events.
9. As for the knife of type used for cutting veges, he picked it up from an empty house before he joined the drinking pelē party, that is why he had it. He did not explain why necessary to carry it on his person on the night in question when he was out drinking.
10. Although Police not call any other witnesses, I was satisfied on the evidence I heard the defendant was not using the knife to defend himself as he claims. If this were even remotely the case I have no doubt he would have mentioned it to the Police and at least made a complaint of being assaulted by complainant and his children and others. I am also not satisfied as to why defendant carrying knife in the first place. If defendant truly “fasi-kele”, there are available on his own evidence a number of witnesses from village to confirm this. Yet none were called.
11. Evidence of complainant and his son far more credible. Defendant making genuine nuisance of himself on road late at night. Defendant in possession of stones and by his own testimony he had already stoned the place where he partied and played cards. This caused complainant to come into close contact with defendant. There is no evidence the complainant was armed. Defendant pulled out and used a knife on an unarmed man trying to control him. Satisfied both charges proven beyond reasonable doubt.
12. As to appropriate sentence on main charge grievous bodily harm, the words of Chief Justice Sapolu in Police v Leifi [2005] WSSC 25 worth keeping in mind. They are as true today as they were then:

“The circumstances of cases of willfully and without lawful justification causing grievous bodily harm which have come before the Courts are so varied and diverse that it has not been possible to set a tariff for this kind of case. The sentences imposed by the Court have depended very much on the circumstances of each case with previous cases providing only general guidance. One thing which can be said with confidence is that this type of case normally attracts a term of imprisonment.”

13. To that would add that the use of a weapon almost guarantees a defendant prison time. Too often, in this country people get angry and resort to weapons. Sometimes a stone in this case a knife. Message must continue to be sent: you do this you cross the line. A line that marks the entrance to Tanumalala Prison.
14. Grievous bodily harm carries a maximum penalty of 10 years imprisonment. The leading authority on approach to be followed in grievous bodily harm cases is Tele’a v National Prosecution Office [2017] WSCA 4. There the Court of Appeal said at paragraph 33 that broadly speaking, grievous bodily harm attacks involving machete usual start point is four (4) to six (6) years in prison. Here it was not a machete but a small knife in close quarters. This is just as deadly a weapon. Depth of injuries suggests fair degree of force was used in the assault.
15. The cases of Police v Aigalii [2015] WSSC 13 and Police v Osooso [2017] WSSC 3 relied on by defence counsel which also involved stabbings using a small knife is out of step with Tele’a and are cases decided on their own particular and unique facts. In the case of the latter it was offending within the context of a domestic relationship and as noted by the Court of Appeal in Tele’a, s.17 of the Family Safety Act 2013 requires that this be treated as an aggravating factor. The proper approach to such cases was that used by the court in Police v Malua [2016] WSSC 181.
16. Take lower end of starting point of 4 years in prison, uplift that by one (1) year because this is an attack on an unarmed man, in the dark and in close quarters without warning and without anything to indicate defendant in possession of such a lethal close order weapon. An attack upon a person trying to disarm him of the rock.
17. From 5 years start point which also start point advocated by prosecution I take into account mitigating factors as raised by defence counsel for defendants. First offender status and good background service as mentioned in pre-sentence report as supported by references I will deduct 6 months leaves a balance of 4½ years.
18. For the apology by defendants parents and family plus asiga of complainant in hospital as detailed in defence counsels submissions I will deduct another 6 months, leaves a balance of 4 years.
19. Village penalty entirely appropriate a one (1) year deduction for that leaves a balance of 3 years.
20. Had defendant pleaded guilty, would have been further deduction. But chose to run a defence unsupported by evidence. Deductions total 2 years, leaves a balance of 3 years.
21. For the charge of grievous bodily harm, you are convicted and sentenced to 3 years in prison. Remand in custody time to be deducted.
22. For armed with a dangerous weapon applying the same process convicted and sentenced to 6 months, concurrent term.

JUSTICE NELSON