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Police v Kasiano [2018] WSSC 13 (16 February 2018)

SUPREME COURT OF SAMOA
Police v Kasiano [2018] WSSC 13

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MORASIKINI KASIANO female of Vaiusu.
Accused

Counsel:
L Sio and L Mamaia for prosecution
Accused in person

Sentence: 16 February 2018

S E N T E N C E

The charge

1. Morasikini Kasiano you appear for sentence on one 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 you pleaded guilty at the earliest opportunity.

Disputed summary of facts hearing

2. When this matter was called for sentence on Monday 12 February 2018, I pointed out to you that there are significant differences between the prosecution summary of facts and what you told the probation service as to what happened in this incident as set out in your pre-sentence report. You told the Court that you deny certain parts of the summary of facts. This matter was then adjourned to yesterday, Thursday 15 February 2018, for a disputed summary of facts hearing.
3. At that hearing, the prosecution provided an amended summary of facts. You denied para 9 of the amended summary of facts in which it is alleged that at the time of this incident you said the words “seiloga e vaivela ma le fiaulavale.” The prosecution then called as witnesses the victim who is your husband and your mother. Both of whom were present at the time of this incident. After hearing the evidence given by the witnesses called by the prosecution, you elected not to give evidence. I formed the view that there is no evidence to support the words alleged against you. Para 9 of the prosecution amended summary of facts was therefore deleted.

The offending

4. According to the other parts of the prosecution amended summary of facts which you accepted, on 01 October 2017 at around 2:00 am, your husband who is the victim returned home intoxicated after drinking with his brothers at a nearby house. He told you to boil him a bowl of noodles. You then turned on your electric kettle to cook your husband’s noodles. However, when you gave the bowl of noodles to your husband he refused to eat it. He continued to swear and make noises towards you. As a consequence, you became angry and poured the hot water in the electric kettle onto him. He sustained burns on his body. Evidently, there was minimal premeditation.
5. When the victim gave evidence during the disputed summary of facts hearing, I asked him as to which part of his body was burnt. He said it was the left side of his face. After medical treatment, his burns healed after about a week. There are no burn marks or scars on the left side of the victim’s face. He also said he is back at work again as a panelbeater.
6. As shown from your pre-sentence report, you told the probation service that your husband always comes home drunk and disrespects your family through his actions. He is a very abusive man but you try to keep your family together for the sake of your children.

The accused

7. As shown from the pre-sentence report, you are 27 years old, married to the victim, and you have three young children. You finished school in 2006 after Year 12. You were then employed at three different jobs. At the time of this offending, you were no longer working but stayed at home to look after your children.
8. Despite what had happened, the victim told the probation service that he strongly supports you in this matter. He described you to the probation service as a hardworking, supportive, kind hearted and a caring wife and mother to your young children. He is also seeking mercy from the Court when passing sentence on you. Your mother also provided a written character testimonial to the probation service in which she describes you as a person of good character and a reliable mother in the upbringing of your children. You are also a first offender.
9. After you pleaded guilty to the charge against you, you were referred to the 8 week Tofa Fetala’i anger management and violence prevention programme. You successfully completed that programme and graduated with a certificate of due completion.
10. You have also expressed remorse and never to reappear in Court in the future.

The victim

11. As already stated, the victim is the accused’s husband. He is 38 years of age and is a panelbeater. He is currently the sole breadwinner for his family. He is strongly supportive of his wife in this matter.
12. There is no victim impact report. But when the victim gave evidence in the disputed summary of facts hearing, he said that it took about a week for his injuries to heal and he is now in good condition again and continuing to work as a panelbeater. He also appears to have no scars or burn marks on the left side of his face where his wife had poured boiling water.
13. He is also seeking mercy on his wife.

The aggravating features relating to the offending

14. The manner in which this offending was committed by the accused pouring boiling water on the victim is an aggravating feature relating to the offending. The second aggravating feature relating to the offending is that as a consequence of the accused’s action, the victim had to undergo medical treatment for about a week.

The mitigating features relating to the accused as offender

15. There are several mitigating features relating to the accused as offender. These are: (a) remorse, (b) there was some provocation from the accused because of his conduct towards the victim, (c) this matter has been reconciled, (d) the victim’s plea for mercy on his wife, (e) previous good character, (f) the fact that the accused has successfully completed the 8 week Tofa Fetala’i anger management and violence prevention programme and graduated with a certificate of due completion, and (g) the early guilty plea.
16. The victim told the probation service that the victim always comes home drunk and abuses her and her family. On this information, I am not satisfied that the accused suffers from what is called battered woman’s syndrome.

Discussion

17. It has been difficult to decide the appropriate sentence to be imposed in this case. This is because it is rare for the Samoan Courts to have to deal with this type of case which involves one person pouring boiling water on another person and I have found no similar Samoan precedent. There is also no power given by statute to the Samoan Courts to impose a suspended sentence of imprisonment. This is unlike the Courts in Tonga, Solomon Islands, Fiji and Papua New Guinea which have been given such a power by statute. In New Zealand, such a power was given to the Courts under s.21 A of the Criminal Justice Act 1985 but it was subsequently repealed, see A Professional Conduct Committee of the Dental Council v Moon 2014] NZHC 189, paras [45]-[47]. The closest equivalent in Samoa to the power to suspend an imprisonment sentence is s.73 of the Sentencing Act 2016 which provides that the Court may order a defendant to come up for sentence if called upon within a period of 12 months. But that provision does not go as far as to empower the Court to suspend an imprisonment sentence or part of it.
18. Given the special circumstances of this case, and in particular the aggravating features relating to the offending as well as the mitigating features relating to you as offender. I have decided to sentence you pursuant to s.73 of the Sentencing Act 2016.

Result

19. You are convicted and ordered to come up for sentence if called on to do so within 12 months. This means if you reoffend within the next 12 months and the maximum penalty for such an offence is more than 3 months imprisonment, then you will be brought back to Court and you will then be sentenced for your present offence.

CHIEF JUSTICE