Police v Panapa [2016] WSDC 14 (11 April 2016)

DISTRICT COURT OF SAMOA
Police v Panapa [2016] WSDC 14

Case name:	Police v Panapa
Citation:	[2016] WSDC 14
Sentence date:	11 April 2016
Parties:	POLICE v FERETI SEVE PANAPA, male of Faleula and Sasina Savaii
Hearing date(s):
File number(s):	D613/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	District Court Judge Clarke
On appeal from:
Order:	- Convicted and sentenced to a term of imprisonment of 4 months.
Representation:	L Su’a and I Atoa for NPO Defendant in person
Catchwords:
Words and phrases:
Legislation cited:	Criminal Act 2013 s.119(2)
Cases cited:	Fisheries Inspector v Turner [1978] 2 233Hesselessell v R [2010] NZSC 135 Police v Ieti Paleaae R v Howells [1999] 1 R v Pawa [1978] NZCA 29; [1978] 2 NZLR 190 (CA), 192
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

A N D:

FERETI SEVE PANAPA male of Faleula and Sasina Savaii
Defendant

Counsel: L Su’a and I Atoa for National Prosecution Office

Defendant in person

Sentence : 11 April 2016

SENTENCING OF DCJ CLARKE

1. Fereti Panapa, you appear for sentencing on one count of assault occasioning actual bodily harm to Larry Samuel Elisara, a male of 17 years of age in breach of section 119(2) of the Crimes Act 2013.
2. You entered an early guilty plea to the charge on its transfer from the Supreme Court. The maximum penalty on conviction in breach of section 119(2) of the Crimes Act 2013 is 5 years imprisonment.

The Offending

3. At the time of your offending, you were the Principal of Levaula College. Your offending took place in your role as School Principal.
4. According to the Prosecution Summary of Facts accepted by you, on 25 November 2015 at around 9.00am, you instructed the victim and 3 other boys to cut the grass. You were not happy with how the victim and the 3 boys cut the grass so you called them to come to you. They were told by you to stand still and in line facing you. You then approached each boy and hit each of them on the cheek with the flat side of the bush knife (sapelu). For the victim, as you struck him, he moved away. The Victim was examined by Dr Adam Keil-Howman at 8.50pm on the same day. Dr Keil-Howman described the victim as having two superficial lacerations measuring 2 – 3 cms each on the right side requiring no stitches. The history taken from the victim was that the lacerations had been bleeding. The victim’s wounds were cleaned, dressed and he was discharged with a course of antibiotics and pain killers.
5. You told the Probation Service in your Pre-Sentence Report that when you committed the offending, you were angered by the victim and the other boys and they appeared ignorant when you told them the place to go and clean-up. You said that you were under some pressure as your wife was suffering a medical condition, which you told the Court requires dialysis.

The Accused

6. You are a 50 year old male of Faleula and Sasina. At the time of the offending, you were the Principal of Levaula College. You are married with 3 children aged 24, 23 and 10 years of age. You told the Court that your wife has been suffering from diabetes and she has been on dialysis for 4 years.
7. You have a long history with the Methodist Church. You were the pastor at Pata Falelatai and later, Nu’uuli, American Samoa. You have also taught at the Piula Theological College. You have a Bachelor of Divinity from Fiji and a Masters of Theology from Auckland University. Your teaching appointment with the Methodist Church was terminated in 2015. You told the Probation Service that you were terminated as a result of your offending.

The Victim

8. The victim is a 17 year old male from Toamua and Falelatai. He was a student at Levaula College at which you were the school principal. According to the Probation Report, you have apologized to the victim and his parents and they have requested that the complaint be withdrawn.

Aggravating features of Offending

9. The aggravating features of your offending are as follows:
   • (i) Your assault of the victim used a sapelu which is a dangerous weapon;
   • (ii) Your assault targeted the victim’s face and inflicted injuries to the victim’s neck as he moved away;
   • (iii) As school principal, your assault constituted a gross breach of trust of the community and of the parents in you; and
   • (iv) Your offending was not isolated. On this same occasion in which you assaulted the victim, you also struck three other students with the same sapelu in the face.

The mitigating features of your offending

10. There are no mitigating features in respect of your offending.

The aggravating factor relating to you as an Offender:

11. There are no aggravating features in respect of you as an offender. You are a first offender at the age of 50.

The mitigating factors relating to you as an Offender:

12. Firstly, I take into account that you entered a guilty plea at the earliest opportunity.
13. Secondly, I accept that you have expressed genuine remorse. You expressed remorse during your sentencing hearing to the Court and when you were interviewed by the Probation Service.
14. Thirdly, you have attended with your wife to apologise to the victim and his parents. They have asked for the matter to be withdrawn.

Discussion

15. The Prosecution has asked for a term of imprisonment. The starting point sought by Prosecution is 18 months. Prosecution relies on a number of cases including Police v Ieti Paleaae [2015] WSSC 203 (25 November 2015) which involved an assault by a school vice principal. In that matter, Her Honour Tuatagaloa J adopted a starting point of 18 months imprisonment for assault causing injury with intent. I bear in mind that the maximum penalty for causing injury with intent for which that defendant was convicted carries a maximum penalty of 7 years. I have also had regard to the other cases cited by Prosecution.
16. Your offence was a serious offence. You used a sapelu and struck at the victim’s face. Such an action is very dangerous. The victim moved, no doubt in fear, and the sapelu struck his neck. You are very fortunate that the victim’s injuries were not more serious or life threatening. Whilst the injuries suffered by the victim was described by Dr Keil-Howman as “superficial”, it nevertheless resulted in 2 to 3 cm lacerations to the victim’s neck.
17. At your sentencing, you confirmed that you were aware at the time of your offending about the prohibition against corporal punishment in the Education Act 2009 (see s. 23). Despite knowing of this prohibition, you disregarded the law and used a sapelu to assault not only the victim but 3 other students. That your wife was suffering from a medical condition placing you under pressure is no excuse for your conduct or the gross breach of trust by you.
18. In Police v Ieti Paleaae (op. cit), the Supreme Court has expressed clear concern about the prevalence of assaults by teachers against students and the view by teachers that they will not ultimately be held to account for such assaults before the criminal courts of Samoa. Her Honour Tuatagaloa J stated:
    • (a) “22. I find the circumstances of these two (2) separate offending by the accused as a Vice Principal against these two (2) students very alarming. I am very much concerned about the attitude exhibited by the accused and teachers alike with the way they treat the students and think they can get away with it. I am especially appalled that some schools continue to tolerate or condone such behaviour by the teachers.
    • (b) The Ministry of Education has a policy against teachers assaulting students. This policy seemed to be not taken seriously as there are teachers who continue to ignore it. As such, the students are not only not in a conducive environment to learn but in an unsafe one as well.”
19. You are one of those teachers who has not taken the Education Act 2009 or the Ministry of Education’s policy against assaulting students seriously.
20. The Court has a wide discretion in terms of sentencing options available to it. In terms of the balancing of sentences to be imposed by a Court, Richardson J in Fisheries Inspector v Turner [1978] 2 NZLR 233 at 237 (CA)ed:ated:
    • (c) “It is only by allowing the sentencing authorities a wide discretion that they are enabled to take account of the innumerable factors affecting the nature of the offence, the circumstances of the offence, and the circumstances of the offender, all of which should ordinarily be weighed in determining the appropriate sentence in the particular case.”
21. This extract received favourable comment in the New Zealand Supreme Court in Hessell v R [2010] NZSC 135 (BC201065458).
    
22. The protection of the public is also an important factor that a Court must also take into account in sentencing. In England in R v Howells [2004] EWCA Crim 2297; [1999] 1 Cr App R 98, 104 the Court of Appeal said:
    • (d) “Courts should always bear in that criminal sentences are in almost every case intended to protect the public, whether byer by punishing the offender or reforming him, or deterring him and others, or all of these things. Courts cannot and should not be unmindful of the important public dimension of criminal sentencing and the importance of maintaining public confidence in the sentencing system.”
      
23. The New Zealand Court of Appeal in a similar vein in R v Pawa [1978] NZCA 29; [1978] 2 NZLR 190 (CA), 192, per Richmond P said that “the Courts cannot allow the imposition of significantly heavier or more severe kinds of punishment than is properly justified and required for the protection of the public interest.”
    
24. I appreciate that you have suffered as a result of your offending. You have lost your job. That however is a natural consequence of your actions and should be expected. You took a bush knife and struck four students in your care, including the victim, in the face. That was very dangerous and was the actions of a bully abusing his position of trust. Your breach of trust and use of a sapelu in your assault are serious aggravating factors. Having taken into account all the aggravating and mitigating factors, the sentence I will impose will be a custodial sentence to hold you accountable for your actions, denounce and deter your conduct, deter other likeminded persons from such actions, instill in you responsibility for your actions and to protect the public interest. Where teachers assault students under their care using a dangerous weapon, they must understand that they run the real risk of a custodial sentence being imposed by the Courts.
    

The penalty

25. The offending in Police v Ieti Paleaae (op. cit) was of a more serious nature and was an assault with intent. In your case, I will adopt a starting point for sentencing of 8 months. I will deduct 1 month for your remorse expressed both in Court and to the Probation Service, which was genuine and heartfelt. I will deduct 1 month for your apology to the family of the Victim and 1/3 of the balance remaining for your early guilty plea leaving a balance of 4 months.
    
26. You are convicted and sentenced to a term of imprisonment of 4 months.
    

Leiataualesa D M Clarke