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Police v Toto [2006] WSSC 12 (17 March 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

MAILO TOTO aka TOTO TUAUMU
male of Saanapu.
Accused

Counsel: K Koria and M Boone-Dumaran for prosecution
Accused in person

Sentence: 17 March 2006

SENTENCE

The charges

The accused is charged under s.79 of the Crimes Ordinance 1961 with the offence of wilfully causing grievous bodily harm to the victim without lawful justification which carries a maximum penalty of seven years imprisonment. To that charge the accused pleaded guilty.

The accused was also charged under s.68 of the Crimes Ordinance 1961 with the offence of attempted murder which carries a maximum penalty of life imprisonment. To that charge the accused pleaded not guilty. After a two day trial on 15 and 16 February 2006 before a panel of assessors, the accused was found not guilty of that charge.

The accused is now appearing for sentence only on the charge of causing grievous bodily harm.

The offending

The circumstances of what happened in this case are taken from the evidence that was adduced at the trial of the attempted murder charge as that charge and the grievous bodily charge arose from the same incident.

The accused who is from the village of Saanapu has a dancing group. The accused was displeased with a son of the victim named Maea for sending boys to the girls of his dancing group to come to them while his dancing group were having practices. On Saturday night, 3 July 2004 at about 9pm, the accused found Maea standing near his house. So he slapped Maea on the mouth.

Then on Sunday, 4 July 2004, after church service in the morning, the accused took his wife in their pick-up vehicle to the house of the women’s committee at Saanapu-uta for the women’s Sunday brunch. After dropping off his wife, the accused returned to his home in the pick up vehicle. When he came by the victim’s house, some of the boys of the victim’s family tried to stop his vehicle. The victim’s wife also swore at the accused. The accused felt angry but he did not stop. When the accused got home he had his Sunday brunch and then sharpened his bush-knife. When it was time for the accused to return to Saanapu-uta to pick up his wife, he put his bush-knife in the vehicle in case he was again stopped by the victim’s family, as there are many members of the victim’s family. On his way to pick up his wife, the accused met the victim and the victim’s wife talking with another man on the road. The victim then stopped the accused’s vehicle and repeatedly asked the accused as to why he had assaulted his (the victim’s) son. The accused repeatedly replied to discipline your children. The victim then punched the accused on the mouth while the latter was still sitting in his vehicle. The victim’s wife then struck the windscreen of the accused’s vehicle with an object which caused the windscreen to break. Broken pieces of glasses from the windscreen injured the accused’s left hand.

The accused then picked up his bush-knife and struck the victim with it from inside his vehicle. That made the victim move away. The accused then came out of his vehicle. He struck at the victim again with his bush-knife. As the victim was moving backwards trying to fend off the blows, the accused continued to deliver strike after strike with his bush-knife. The victim then tripped over and fell down. According to the accused in his cautioned statement given to the police, when the victim fell down and he saw that the victim was injured and bleeding from his injuries, he stopped and walked away to the other side of the road.

The accused

The accused is a 48 year old matai from the village of Saanapu. He is married with five children. He earns $92 a week and is the sole provider for his family. The accused and the victim are related, both being members of the Vole family at Saanapu.

As it appears fro the pre-sentence report prepared by the probation service, the accused is a first offender. He is also an honest and hardworking person and has never been involved in any breach of the village rules and regulations until this incident. So the accused had been a person of good character prior to the commission of this offence.

After this incident, the accused visited the victim at the hospital and apologised for what happened. The victim accepted the apology Vole Tuapi, the matai of the family of the accused and the victim, also appeared and informed the Court that there has been a reconciliation between the accused and the victim and this matter has been settled within the family.

Following this incident, the accused was penalised by the village council of Saanapu and he presented a fine mat, ten sows, twenty cartons of herring, and one cattle beast for his penalty. The village council accepted the accused’s presentation but nonetheless banished the accused from the village for one year. The accused has been accepted back in the village.

From the accused’s plea in mitigation and what is said in the pre-sentence report, I accept that the accused is truly remorseful for what he did.

The victim

The victim is a 45 year old male from the village of Saanapu. He is married with six children. He is an accomplished carpenter by profession. As mentioned earlier, the victim and the accused are also related.

As a result of the assault by the accused, the victim was hospitalised for two months and three weeks. He sustained a lacerated wound to the right side of his head, a lacerated wound to the left side of his head, a lacerated wound across the left side of his chest through the left nipple, and a deep lacerated wound on his left wrist. The scars of these wounds are still with the victim. As a further consequence of his injuries, two of the victim’s left fingers are paralysed so that he cannot hold a tight grip with his left hand. This is affecting the performance of his work as a carpenter.

Mitigating circumstances

There are several mitigating circumstances in this case. These are:

(a) the accused’s plea of guilty to the charge,
(b) the accused’s apology to the victim while in the hospital and the reconciliation that has been effected between the two of them,
(c) this matter has also been settled within the family of the accused and the victim,
(d) the severity of the penalty imposed by the village council, namely, banishment from the village for about a year and the presentation by the accused of a fine mat, 10 sows, 20 cartons of herrings and one cattle beast to the village council,
(e) the provocation from the victim and his wife,
(f) the accused is a first offender and it appears from the pre-sentence report by the probation service that the accused was a person of good character prior to the commission of this offence,
(g) the accused refrained from any further attack on the victim when the victim fell down,
(h) the accused is deeply remorseful as it appears from the pre-sentence report by the probation service.

Aggravating circumstance

The aggravating circumstances in this case are:

(a) the use of a bush-knife which is a dangerous weapon,
(b) this is a case of a sustained attack with a bush-knife on a defenceless person,
(c) there was also an element of pre-meditation in that the accused put his knife in his vehicle in anticipation that he may be stepped again by the family if the victim,
(d) the extent of the injuries to the victim, and
(e) two of the victim’s left fingers are now paralysed and is affecting the performance of his work as a carpenter.

Decision

Having regard to the circumstances of this case the starting point for sentencing should be 3½ years imprisonment. I will give the accused 1/3 discount for his plea of guilty. That will leave 2 years and 4 months imprisonment. I will give the accused a further discount for the fact that he is a first offender, that he was acting under provocation from the victim and his wife, he has already been severely punished by his village council, as well as the other mitigating circumstances already mentioned.

In the result, the accused is convicted and sentenced to 18 months imprisonment.

CHIEF JUSTICE