SUPREME COURT OF SAMOA
Police v Niko [2013] WSSC 65

Case name:  Police v Niko
Citation: [2013] WSSC 65
Decision date: 6 August 2013
Parties: 
POLICE (prosecution) TUPE JACOB NIKO male of Fugalei (accused)
Hearing date(s): 
File number(s):  S8012/13, S8013/13
Jurisdiction: CRIMINAL
Place of delivery: MULINUU
Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU
On appeal from:
Order:
Representation: 
F E Niumata and O Tagaloa for prosecution
Accused in person
Catchwords: 
Sentence, actual bodily harm, assault, grievous bodily harm
Words and phrases:
Loss of consciousness 
Legislation cited:
Crimes Act 2013
Cases cited:
McLoughlin v O’Brien [1983] 1 AC 410
Police v Papalii [2011] WSSC 130
R v Appleby [2009] EWCA Crim 2693
R v Brown (A) [1994] 1 AC 212, 
R v Chan-Fook, 99 Cr App R 147, CA; 
R v Donovan [1934] 2 KB 498, 
R (T) v DPP Crim LR 622
R v Foster [2009] EWCA Crim 2214 
R v Hicks [2007] EWCA Crim 1500
R v Ireland; R v Burstow [1998] AC 14
R v Miller [1954] 2 QB 282
T v Director of Public Prosecutions [2003] EWHC 266,
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S8012/13, S8013/13

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

TUPE JACOB NIKO male of Fugalei.
Accused

Counsel:	F E Niumata and O Tagaloa for prosecution
Accused in person

Sentence: 6 August 2013

S  E  N  T  E  N  C  E
The charge
1.	The accused Tupe Iakopo Niko appears for sentence on the charge of intent to cause actual bodily harm and causes actual bodily harm under s.119 (1) of the Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment.  To the charge the accused pleaded guilty at the earliest opportunity.
2.	Section 119 (1) provides:
“A person is liable to imprisonment for a term not exceeding seven (7) years who, with intent to cause actual bodily harm, causes actual bodily harm to another person”
3.	Section 119 (1) evidently supersedes s.80 of the now repealed Crimes Ordinance 1961 which had provided for the offence of willfully and without lawful justification causing actual bodily harm.  Under s.80, the offence of causing actual bodily harm carried a maximum penalty of 2 years imprisonment and brought the offence within the jurisdiction of the District Court.  The maximum penalty has been increased to 7 years imprisonment under s.119 (1) of the 2013 Act so that the offence of causing actual bodily harm now comes within the jurisdiction of this Court.
4.	Evidently, the offence of actual bodily harm under s.119 (1) consists of two elements which the prosecution must prove beyond reasonable doubt.  Firstly, the accused intended to cause actual bodily harm and, secondly, actual bodily harm was caused to another person.  The first element is a specific intent and is the mental element of the offence;  the second element is the physical element of the offence.  That is straightforward.  But what needs explanation is what constitutes “actual bodily harm”.
Actual bodily harm
5.	In Police v Papalii [2011] WSSC 130 which was concerned with the charges of grievous bodily harm, actual bodily harm, and assault, this Court said at para 40:
“As to the expression ‘actual bodily harm’ used in the first element of this offence, the learned authors of Archbold 2006 state at 19-197
 “ ‘Bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim: such hurt or injury need not be permanent, but must be more than merely transient or trifling:  R v Donovan [1934] 2 KB 498, 25 Cr App R 1, CCA, cited with approval by Lords Templeman and Jauncey in R v Brown (A) [1994] 1 AC 212, HL, at pp.230 and 242 respectively. It may include momentary loss of consciousness; where there is injurious impairment to the victim’s sensory functions, ‘it is axiomatic that the bodily harm was actual’:  R (T) v DPP Crim LR 622, QBD, (Maurice Kay J).
“Actual bodily harm is capable of including psychiatric injury but it does not include mere emotions such as fear, distress or panic: R v Chan-Fook, 99 Cr App R 147, CA; R v Ireland; R v Burstow [1998] AC 147, HL.  Without appropriate expert evidence, the question whether an assault had occasioned psychiatric injury should not be left to the jury: R v Chan-Fook, ante”. 
6.	I must point out that the statement by Swift J when delivering the judgment of the English Court of Criminal Appeal in R v Donovan [1934] 2 KB 498 and which is cited in Archbold 2006 is the generally accepted judicial definition of ‘actual bodily harm’.  It has not only been accepted in England but it has also been accepted in Australia and New Zealand. 
7.	In R v Chan Fook [1993] EWCA Crim 1, Hobhouse LJ, in delivering the judgment of the English Court of Criminal Appeal, dealt with the meaning of the expression ‘actual bodily harm’ as it is used in the relevant English statutory provision.  His Lordship said:
“We consider that the same is true of the phrase ‘actual bodily harm’.  These are three words of the English language which receive no elaboration and in the ordinary course should not receive any.  The word ‘harm’ is a synonym for injury.  The word ‘actual’ indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant”

8.	Further on in R v Chan Fook [1993] EWCA Crim 1, Hobhouse LJ, when discussing the meaning of the word ‘bodily,’ said:
“The first question on the present appeal is whether the inclusion of the word ‘bodily’ in the phrase ‘actual bodily harm’ limits harm to the skin, flesh and bones of the victim.  Mr Justice Lynskey rejected this submission.  In my judgment he was right to do so.  The body of the victim includes all parts of his body, including his organs, his nervous system and his brain.  Bodily injury therefore may include injury to any of these parts of his body responsible for this mental and other faculties.  The matter was well summarised by Lord Wilberforce in McLoughlin v O’Brien [1983] 1 AC 410 at 418:
 “ ‘Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind.  Thus there may be produced what is as identifiable an illness as any that may be caused by direct physical impact. 
“…
“Accordingly the phrase ‘actual bodily harm’ is capable of including psychiatric injury.  But it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition”.
9.	On the question of whether ‘momentary loss of consciousness’ is capable of amounting to actual bodily harm,  Maurice Kay J in T v Director of Public Prosecutions [2003] EWHC 266, paras 3 and 4, said:
“3.  There was an issue at the trial as to whether the ‘momentary loss of consciousness’ amounted to or was capable of amounting to, ‘actual bodily harm’…  The justices were referred to some authority on the subject, including the case of R v Miller [1954] 2 QB 282.  In the case stated they expressed the opinion that:
‘… in the light of R v Miller… the unconsciousness suffered by March as a result of the kick from the appellant amounted to actual bodily harm.’ 
“They, accordingly, found the appellant guilty and on 19 June 2002 he was sentenced by way of community punishment order of 40 hours and ordered to pay £50 costs.
“4.  The question posed by the justices for the opinion of this Court is expressed in this way:
	“‘Whether momentary loss of consciousness is sufficient to make out the offence of assault occasioning actual bodily harm contrary to sec. 47 of The Offences Against the Person Act 1861.’”
10.	Maurice Kay J then dealt with the submission by counsel for the appellant that a momentary loss of consciousness cannot be actual bodily harm.  In rejecting that submission His Lordship said, inter alia, at para 6:
“In my view, it cannot be doubted that the loss of consciousness suffered by the victim in this case fell within the meaning of the word ‘harm’.  Nor can it be doubted that that harm was ‘bodily’.  It involved an injurious impairment to the victim’s sensory functions.  It is axiomatic that the bodily harm was ‘actual’.  In my judgment, … the justices were entitled to find that the assault carried out by the appellant had occasioned actual bodily harm”.
11.	There are, however, some English cases which have said that loss of consciousness may in some circumstances amount to grievous bodily.  In R v Foster [2009] EWCA Crim 2214 paras 27 and 28, Rix LJ said:
 “27.  In coming to this conclusion we have borne in mind the decision of this Court in R v Hicks [2007] EWCA Crim 1500, which states that loss of consciousness can amount to grievous bodily harm.  In that case a jury asked the question in the abstract, and the answer in the abstract was that necessarily it could.  Moreover, on the facts of Hicks, the injuries went beyond unconsciousness.  
“28.  There is no disputing that unconsciousness can amount to grievous bodily harm.  Nevertheless, unconsciousness may come in many different forms.  In this case it was plainly accepted that there was a real issue as to whether the evidence of injury, including the evidence of unconsciousness, was necessarily to be characterised as grievous rather than actual bodily harm.  The medical witnesses, who knew from the grazing of the head that a blow or blows had been caused to the complainant, were unable to say whether or to what extent his unconsciousness… was due to such blows or was due to his condition in drink”.
12.	In what may provide helpful guidance to the Samoan prosecutors when deciding whether to prefer a charge of actual bodily harm given a particular injury, I refer to R v Appleby [2009] EWCA Crim 2693, para 2, in which Lord Chief Justice Judge, in delivering the judgment of the English Court of Criminal Appeal, said:
“The Crown Prosecution Service Charging Standard advises that minor injuries justify a charge of common assault, rather than assault occasioning actual bodily harm.  They include grazes, scratches, abrasion, minor bruising and swellings, superficial cuts and reddening of the skin.  Unlawful violence taking this relatively minor form can result in death and a conviction for manslaughter.  The same Charging Standard indentifies the kind of injuries which should lead to a charge of assault occasioning actual bodily harm.  They include loss or breaking of a tooth or teeth, extensive multiple bruising, displaced broken nose, minor fractures, temporary loss of sensory function, which may include loss of consciousness, and minor, but not superficial, cuts of a sort which might require medical attention in the form of stitching.  Grievous bodily harm is concerned with serious injuries”. 
The offending 
13.	The accused is a 18 year old male and the victim is a 48 year old male. They are prisoners serving terms of imprisonment at the Olomanu Rehabilitation Centre.  On Friday afternoon 17 May 2013, the victim was attending to his usual chores at the house of one of the wardens when the accused came to him.  The victim told the accused to go away as he was distracting him whilst attending to his chores.  However, the accused swore at him.  This prompted the victim to slap the accused twice on the back.  The accused then continued with his chores.  
14.	At that time, the accused picked up a stone and threw it at the victim.  The stone hit the victim on the right ear.  He fell on his knees and was momentarily unconscious.  So it must have been a powerful throw.  When the victim recovered, he stood up.  But the accused threw another stone at him.  This second stone missed the victim.  Fortunately, a constable arrived and stopped the accused.
15.	The victim was then brought to the Leulumoega Hospital for medical treatment.  The cut caused to his right ear required five stitches.  The accused, on the other hand, was transferred by the police to Tafaigata prison.
The accused 
16.	The accused as already mentioned is 18 years old and currently serving a prison sentence.  He appeared before the District Court in March 2010 on a charge of burglary.  He was convicted and given a suspended sentence for 12 months.  In November 2011, he appeared before this Court on a charge of possession of narcotics and was sentenced to 4 months in prison.  In the beginning of 2012 whilst serving his sentences on the narcotics charge, the accused appeared again before the District Court on charges of burglary and theft.  He was given a concurrent sentence of 2 years imprisonment on both charges.  Whilst serving this sentence at the Olomanu Rehabilitation Centre, he committed the present offence.
17.	The accused comes from a poor family at Taufusi.  It is evident from the previous pre-sentence reports on the accused that he was destined for a career in criminal offending.  Placing him at the Olomanu Rehabilitation Centre does not seem to have worked.  Even though the accused has pleaded guilty and apologised to the Court, I am of the view that he is the kind of person who is likely to re-offend.
The aggravating and mitigating factors
18.	The aggravating factors which relate to the offending in this case are: (a) the throwing by the accused of two stones at the victim, (b) the injuries to the victim, namely, loss of consciousness and a cut to the right ear which required five stitches, (c) the accused only stopped when a constable intervened, and (d) the place where the offending occurred which suggests lack of remorse on the part of the accused.  There is no mitigating factor relating to the offending. 
19.	In relation to the accused as offender, his previous convictions are an aggravating factor.  This offending also occurred whilst the accused is serving a prison sentence for burglary and theft which offences were committed whilst the accused was serving a prison sentence for possession of narcotics.  On the other hand, the accused’s early guilty plea is a mitigating factor relating to him as offender.
The decision 
20.	Having regard to the new maximum penalty of 7 years imprisonment for the offence of actual bodily harm, the need for deterrence, and the aggravating factors relating to the offending, I will take 9 months as the starting point for sentence.  There will be an uplift of 2 months for the accused’s previous convictions which reflect his attitude towards the law.  The provisional sentence will therefore be 11 months.  I will deduct 2 months for the early guilty plea.  That brings the provisional sentence back to 9 months.
21.	The accused is convicted and sentenced to 9 months imprisonment.  This sentence is to commence at the end of the accused’s current sentence of 2 years imprisonment for burglary and theft.

CHIEF JUSTICE

Solicitor
Attorney-General’s Office, Apia, for prosecution