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Police v Tasilimu [2024] WSSC 117 (23 September 2024)

IN THE SUPREME COURT OF SAMOA
Police v Tasilimu [2024] WSSC 117 (23 September 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

TASMAN IOKA TASILIMU male of Vaigaga and Satoalepai Savaii

Defendant

Counsel: L. Matauaina for Prosecution
V. Afoa for Defendant

Sentence: 23 September 2024

SENTENCE

Charges

1. You are being sentenced this afternoon on three charges. The first and more serious is causing grievous bodily injury which attracts a maximum penalty of ten years imprisonment. The second is making a threat to cause grievous bodily injury, the maximum penalty is three years imprisonment. The third charge is being armed with a dangerous weapon without a lawful purpose, the maximum penalty is one year imprisonment.
2. When the charges were first mentioned, you entered guilty pleas to the threatening to cause grievous bodily harm and being armed with a dangerous weapon charges, but denied causing grievous bodily injury. You then failed to appear at the hearing of that charge, and a warrant was issued for your arrest. When brought back under the warrant, you vacated your not guilty plea substituted by a guilty plea on the 15th July 2024. You subsequently maintained those guilty pleas through Ms Afoa, your legal aid counsel appointed by an order of the Chief Justice. But because of your failure to comply with bail you have been remanded in custody pending sentence.

Offending

3. From the summary which you accept, the offending occurred on Christmas Eve 2023. You were drinking alcohol with the victim who is your cousin, and other family members at your uncle’s place. You got up and walked to the kitchen sink, and grabbed a kitchen knife. You were heard saying “vaai lelei le alii lea o Fatu pe a fo’i mai”. The victim then told you, “aua le faia fua tamaiti lae laiti”. You told the victim to watch it, or you will come and cut his throat. You then walked over, held the knife to his neck and attempted to cut it.
4. In an attempt to push you away, the victim fell and you stabbed him on the back, pulled the knife out and stabbed him a second time. The victim’s sister came to his aid, she took off the victim’s shirt and used it to stop the bleeding. She led him to their house and called an ambulance.
5. The medical examination found that the victim suffered three distinct penetrating injuries to the upper left side of his back. A chest x-ray showed a pneumothorax (collapsed lung) on the left side. In the pre-sentence report, you accept responsibility and told Probation that your inability to recall details of what happened was due to your heavily intoxicated state.

The Victim

6. The victim is a 21 year old male and your cousin. He was admitted to hospital for a week. The victim impact report says that because of the seriousness of the injuries, he continued follow up treatment for three weeks upon being discharged. Though the injuries have healed, he continues to feel pain on his chest at times. The report also confirms that your parents have apologised and reconciled with the victim and his parents. They have forgiven you and the victim wants to forget what happened.

Aggravating Factors

7. I consider that:
   • (i) the offending involved actual violence, with a sharp weapon said to inflict serious injuries;
   • (ii) the offending involved not one but multiple stabs – the summary says there were two, the medical report says there were three distinct penetrating injuries on the upper left side on the victim’s back;
   • (iii) the stabs were aimed at the back and deep enough to cause the victim a collapsed lung;
   • (iv) the vulnerability of the victim given his intoxicated state;
   • (v) the impact - it caused the victim serious injuries including a collapsed lung; he continues to feel the impact even though the injuries have healed.

Mitigating Factors

8. I consider
   • (i) your guilty pleas to the charges;
   • (ii) that an apology has been rendered and reconciliation made;
   • (iii) your personal circumstances - You are 29 years of age and the third of seven children. You ended your formal education at Faleata College, then worked a number of jobs to help your family before migrating to New Zealand. You returned in 2016 and continued working to care for your parents and family. I have read the plea by your parents. They confirm your contribution to your family and say that alcohol has been your weakness. They acknowledge that you have learnt a lesson from having been held in custody. You are a first offender. Apart from the plea by your parents, there are testimonials by the pulenuu of Vaigaga, Pastor Taei Siaki of the LDS Church of Vaitele uta which I consider.

Discussion

9. It is clear that your excessive use of alcohol was a factor in your offending. But as the court has said in numerous cases, intoxication is not an excuse. You are lucky that the injuries had not been more serious given the use of a kitchen knife. In terms of sentencing the cases show that the penalties imposed by the court for charges of causing grievous bodily injury with intent vary from non-custodial sentences of supervision to deterrent terms of imprisonment, depending on the circumstances of each case.
10. In Police v. Aigaalii [2015] WSSC 13 and Police v. Osooso [2017] WSSC 3 cited by your counsel, the offending involved the use of a kitchen knife and non-custodial penalties were imposed. On the other hand in Police v. Tufele [2018] WSSC 109, Police v. Leota [2020] WSSC 69 and Police v. Matagi [2022] WSSC 6 cited by prosecution, imprisonment sentences were imposed. I have considered all those cases.
11. I am of the view that the primary purposes of your sentence should be accountability, denunciation and deterrence. It should make you accountable for the harm caused to the victim, denounce your conduct, and deter you and others who may be disposed to commit the same offence.
12. People must simply learn to refrain from not only resorting to violence in any form of disagreement, but to weapons which cause serious harm and injuries. Such behaviour must be deterred. You must also learn that intoxication is not an excuse, and that its abuse to the extent that you offend and not recall what happened must be addressed.
13. On the lead charge of causing grievous bodily harm I adopt as recommended by prosecution a start point of 5 years. I make these deductions. For the apology and reconciliation, I deduct 12 months. For your personal circumstances including age, the plea by your parents and referees, and your first offender status I deduct 12 months. And lastly for your plea of guilty, I deduct another 12 months. The end sentence is 2 years.

Result

14. On the charge of causing grievous bodily injury, you are convicted and sentenced to 2 years imprisonment. Time in custody to be deducted.
15. On the charge of making threats to cause grievous bodily harm, you are convicted and discharged.
16. On the charge of being armed with dangerous weapon, you are also convicted and discharged.
    

JUSTICE ROMA