IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

FUIVAI IOSIA
male of Sapunaoa Falealili
Accused

Counsel: P Chang for prosecution
M Leung Wai for accused

Sentence: 20 January 2006

SENTENCE

The charge

The accused is charged under s.79 of the Crimes Ordinance 1961 with the offence of having caused grievous bodily harm to the victim without lawful justification. The charge carries a maximum penalty of seven years imprisonment and the accused has pleaded guilty to it at the earliest opportunity.

The offending

As it appears from the summary of facts prepared by the prosecution, on Tuesday morning, 3 May 2005, the victim was told by the sister of the accused that the accused was at the plantation. That made the victim come to the accused’s house and went into the room of the accused’s sister. The accused unexpectedly reappeared and he found the victim hiding behind his sister’s bed in her room. He hopped onto the bed holding a machete. Upon seeing this, the victim held up his left hand to cover his head as the accused was striking at his head with the machete. The knife struck the victim on his left wrist causing it to bleed. The accused then aimed another strike with the machete at the victim’s head. The victim moved backwards and the machete slid over his face causing skin on his face to peel. The victim fell down facing downwards. When he looked up again, the accused took another aim at his head with the machete. The victim held up his right arm to cover his face and the machete struck him on the right shoulder. He then screamed out fia ola (I want to live) and then fainted. There is no dispute that the injuries inflicted on the victim were serious.

It appears from the pre-sentence report prepared by the probation service that the accused told the probation service that on the day of this incident, he left his family’s house in the morning to go to his plantation. It was raining at the time. As the weather got worse, he decided to return home instead of continuing on to his plantation. When he arrived home, he noticed a strange shirt hanging on their line which was not there before he left to go to his plantation. He became suspicious. His sister was surprised to see him back so soon. At that time, the wife of one of the Members of Parliament of the accused’s district arrived in her car and called out for someone to come and get the box of chicken from the car. The accused says he then called his sister who was in her room to go and get the box of chicken. When his sister came out of her room, the accused entered the room holding the machete he had taken with him to his plantation. He found the victim hiding between his sister’s bed and the wall of the room. He then struck the victim with the machete three times.

The accused, as it appears from the pre-sentence report, also told the probation service that he had treated the victim like a brother to him. He had even fed and clothed the victim. The victim at times would even sleep at the guesthouse of the accused’s family. The accused says he felt betrayed when he found the victim in his sister’s room. He also says that he felt the victim had abused the trust he (the accused) had in him.

Aftermath of the offending

The victim impact statement provided by the prosecution shows that as a result of the injuries inflicted on the victim by the accused, the victim was unconscious for three days and was hospitalised for one week. During that week the victim was fed only liquid food and was bathed in his bed. For six months after the victim was discharged from the hospital, he could not use his hands and had to be fed and bathed by his family. Up to 25 November 2005 when the victim impact statement was prepared, the victim was still unable to work on his family’s plantation and just stays at home.

With regard to the injuries suffered by the victim, the victim impact statement and the medical report attached thereto show that the machete used by the accused sliced into the victim’s left wrist and fractured the bones of the third and fifth left fingers. These fingers cannot be straightened and there is a scar on the victim’s left wrist.

The machete also sliced through the victim’s right hand affecting the bones of that hand. As a result the victim’s right hand cannot be straightened. According to the medical report, this is a significant injury which required a lot of physiotherapy and it will take a few more months to assess any permanent disability. The medical report also shows that there is a wrist drop of the victim’s right hand as a result of the injury to that hand.

The skin on part of the victim’s face was also peeled off and had to be stitched back. As a result of the injury to the victim’s face, his nose is now bent.

The accused

The accused is a 33 year old male from the village of Sapunaoa in Falealili. He is single. He works on his own plantation from which he earns about $300 a week from the sale of produce at the market. The accused is a member of his village aumaga and is the leader of the committee for entertainment of the youths of his village.

The testimonials provided by the pastor of the accused’s church, one of the Members of Parliament for the accused’s constituency, and the pulenu’u of the accused’s village show the accused to be an honest, reliable, dependable, well-behaved and hardworking person. In other words the accused is a person of good character. However, the present offence and the accused’s previous conviction in 2001 for having caused actual bodily for which he was sentenced to two years probation show that the accused has a serious problem and that is he is at times incapable of controlling his anger. The information provided by the probation service concerning the time that the accused served his sentence of two years probation shows the accused to be a person of good character. In consequence of his good behaviour and due compliance with the conditions of his probation, he was discharged from probation five months before the expiry of its two year term. The accused also attended an anger management counselling programme whilst on probation. Unfortunately, about four years after his previous conviction for the offence of causing actual bodily harm, the accused is now appearing before the Court again on the more serious charge of causing grievous bodily harm.

For the present offence, the accused was fined by the council of his village. He made a presentation of five boxes of tinned fish and three pigs to the village council for his fine. His family also apologised to the family of the victim and the apology was accepted. So there has been a reconciliation.

The victim

The victim is a 28 year old male from the same village of Sapunaoa, Falealili, as the accused. At the time of this incident, he worked on his family’s plantation and looked after his family.

Submissions by counsel for the prosecution

Counsel for the prosecution in her submissions stated that this is a common type of offending. She referred to the victim’s injuries and stated that the victim cannot now straightened his third and fifth left fingers and right hand. She also referred to how the victim was assaulted with the machete and submitted that this was a brutal attack. She also referred to the case of Police v Asalemo Tevaga (2005) where after a trial, the accused was found guilty of causing grievous bodily harm and sentenced by Vaai J on 27 June 2005 to 18 months imprisonment. Counsel also referred to the case of Police v Reupena Talalelei where after a plea of guilty to the charge of causing grievous bodily harm this Court sentenced the accused to two years and nine months imprisonment. This is to show that the usual penalty for this type of offence is imprisonment.

Counsel for the prosecution further submitted that if there was provocation in this case, the mode of retaliation by the accused was totally out of proportion.

Submissions by counsel for the accused

In his submissions in mitigation of penalty, counsel for the accused referred to the accused’s plea of guilty to the charge against him at the earliest opportunity. He also said that the accused cooperated with the police by turning himself in. He further said that the accused has already been fined by the council of his village and has met that fine. There has also been an apology made by the accused to the family of the victim which was accepted and a reconciliation has taken place between the accused and the family of the victim.

Counsel also submitted that there was a high degree of provocation in that the behaviour of the victim in entering the room of the accused’s sister is the type of behaviour that is generally treated seriously in the community particularly in the context of village. He also mentioned that the accused had treated the victim like a brother but the victim betrayed the accused’s trust.

Counsel also submitted that there was no pre-meditation on the part of the accused as the accused had only returned home instead of continuing on to his plantation due to the weather getting worse. He did not expect to find the victim in his sister’s room. Counsel also referred to the testimonials provided for the accused and submitted that the accused is a worthwhile member of the community. He also distinguished on the facts the two cases of grievous bodily harm cited by counsel for the prosecution to show that the usual penalty for this type of offence is a term of imprisonment.

I think that to the two cases of grievous bodily harm cited by counsel for the prosecution may be added the case of Police v Ose Ose (2005) where the accused was sentenced on 4 July 2005 to 2½ years imprisonment on the charge of causing grievous bodily harm after a plea of guilty, the case of Police v Vainiu Tafiliga (2005) where the accused was sentenced on 26 August 2005 to 2 years imprisonment on another charge of causing grievous bodily harm after a plea of guilty; and the case of Police v Semo Leifi (2005) where the accused was sentenced on 17 November 2005 to 2 years and 3 months imprisonment on another charge of causing grievous bodily harm after a plea of guilty.

Mitigating factors

The mitigating factors in this case are the accused’s plea of guilty to the charge against him at the earliest opportunity, his cooperation with the police by turning himself in, his apology to the family of the victim which was accepted and the consequential reconciliation, and the fact that the accused has already been punished by his village council. I also take into account in mitigation that there was an element of provocation involved. I also take into account what is said in the accused’s testimonials which shows him to be a person of good character. However, the accused has a weakness and that is at times he is incapable of controlling his anger.

Aggravating factors

The attack by the accused on the victim was a very dangerous one. It involved the use of a machete which is a dangerous weapon. All three strikes delivered by the accused with the machete were aimed at the area of the victim’s head. The victim was really in a defenceless position. In fact when the third strike was delivered the victim had already fallen down from the second strike.

The injuries suffered by the victim were also very serious. The victim fainted after the third strike from the accused and he remained unconscious for three days at the hospital. As a result of his injuries, the victim’s third and fifth left fingers cannot now be straightened and his right hand cannot also now be straightened. Subject to further medical assessment, there is a possibility at this stage that these injuries may turn out to be permanent disabilities. Furthermore, the injury to the victim’s face which caused part of the skin to peel off and had to be stitched back has resulted in the victim’s nose being bent. Whether this would become a permanent disfigurement to the victim’s face is not clear. But it is still a disfigurement to the accused’s face at this stage. All these injuries have left scars of the accused’s attack on the victim. As a further result of the injuries to the victim’s left fingers and right hand he cannot now work on his family’s plantation but just stay at home.

The accused is also not a first offender as he has a previous conviction for causing actual bodily harm in 2001 for which he was placed under probation for a term of 2 years.

The decision

I find the attack by the accused on the victim in this case to be more severe than the attacks in other cases of grievous bodily harm that came before this Court last year. Of course no two cases have identical factual situations.

Having regard to the mitigating and aggravating factors in this case and the need for deterrence in this type of case, the accused is sentenced to 3 years imprisonment.

CHIEF JUSTICE