Police v Crichton [1999] WSSC 10 (23 July 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

KEPI HARRIS CRICHTON
of Pesega
Defendant

Counsel: Mr R. Schuster for the Prosecution
Mr C. Nelson for the Defence

Date of Hearing: 5 July 1999
Date of Sentencing: 23 July 1999

SENTENCING REMARKS OF WILSON J.

Kepi Harris Crichton, you are a 21 year old Samoan man from Lotopa.

You have pleaded guilty to a charge of assault. The charge had earlier been amended from attempted murder to one of assault. I have accepted your plea (of guilty) to the charge of assault and you now stand convicted of that crime.

On 22^nd May 1999 you assaulted a man, Fili Soli Tufuga. You and your friends had been beating up a man, Viliamu, at Pesega. The victim of your crime went to see what was happening. By the time he reached the area where the fighting had been taking place, you and your friends ran to the other side of the road to where your pick-up was parked. As you were jumping into your car you dropped a pistol, which had been in the pocket of your pants. You then picked up the pistol, aimed it at some banana trees, and you fired twice.

You knew that there were people in the area where you aimed your pistol, but you fired anyway. Although you did not immediately know what happened, the victim of your crime, who was in that area, was unfortunately shot in the chest and the bullet lodged in his back.

This was reckless conduct on your part. You adopted a “couldn’t care less” attitude and very serious consequences (they could so easily have been fatal consequences) followed.

An aggravating circumstance of your crime of assault is the fact that a firearm was used. People who carry firearms and then use them for other than proper and legal purposes are taking a very serious step indeed, and, when another person is hurt by a bullet from the firearm, they can, as a general rule, expect to be sent to prison.

Another aggravating circumstance of your crime is the fact that the victim received a serious injury and was hospitalised for 9 days.

Despite what was stated in the pre-sentence report, you are not a first offender. You are not entitled to the leniency (or mercy) a first offender or person of previous good character could expect to receive. Although your previous convictions in 1995 were not for firearms offences, one was for throwing stones, which is something else which might be called reckless conduct. You do not appear to have learnt much from your earlier Court appearance in 1995.

I have read the pre-sentence report prepared by the Probation Service. As I indicated earlier, it would appear that, unfortunately, the Probation Officer was not made aware when the report was prepared that you had previous convictions. I have listened to the powerful submissions of your counsel, Mr Nelson, who has urged me to impose a non-custodial penalty, i.e. one other than imprisonment.

I do take into account the fact that you pleaded guilty, that you are remorseful, and that a traditional apology (ifoga) has been given and accepted. However, this is not a case in which that fact and the fact that some emphasis has been given to the notion of restorative justice can mean that this Court should not impose a custodial sentence.

Your uncle has, through the Probation Officer, made a plea for mercy. Your lawyer has done likewise on your behalf. The victim of your crime has, in somewhat unusual circumstances which must operate in your favour, made a plea for leniency on your behalf. But, though what he has said goes to your credit, his views on the matter cannot be taken as conclusive. I cannot (and should not) neglect or abdicate my public duty by giving effect to the views of the victim.

The Probation Service has urged me to give you a “second chance”. In reality, what I am being asked to do is give you a “third chance”. Whilst I have given your situation most careful and anxious thought, I have decided that, for me not to order a term of imprisonment, would send a wrong message to the people. The Supreme Court must from time to time send out a right message to the people. I send such a right message now by indicating that you will be going to prison for a crime that may be described either as a crime of violence or a firearms - related offence. Notwithstanding the earnestness of your lawyer’s plea on your behalf, this is not, I think, a case for a fine and/or a probation order and/or a community service order.

This is a case for the imposition of an essentially deterrent sentence. The notion of rehabilitation must take second place behind deterrence.

I note that the firearm in question has been confiscated and forfeited.

This crime is punishable (under the Crimes Ordinance) by a sentence of up to 12 months. The sentence of the Court is that you be imprisoned for 3 months.

JUSTICE WILSON