Police v Misilei [1999] WSSC 3 (21 May 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Informant

AND:

PALAKUKA MISILEI
of Magiagi
Defendant

Counsel: Mr G. Latu for the Informant
Mr S. Toailoa for the Defendant

Sentencing Date: 21 May 1999

SENTENCING REMARKS OF WILSON J.

PALAKUKA MISILEI of Magiagi, you are a 20 year old single Samoan man.

You, by my leave (with my permission), changed your plea from Not Guilty to Guilty of the charge you face. I accepted that plea of Guilty, and you now stand convicted of the crime known as grievous bodily harm - The maximum penalty for this crime is 7 years imprisonment. So the law of Samoa says that this is a very serious crime.

On 28^th December 1998 (when you were 19 years of age) you, wilfully and without lawful justification, caused grievous bodily harm to Atapana Tuia. I find that you meant to cause really serious bodily injury to the victim; you knew what you were doing and you intended to cause really serious injury to him.

This was a serious crime that you committed. This was a serious wrong that you did.

I now want to say one thing that the lawyers will understand.

You had a criminal intent of the kind required by a person who commits the crime of grievous bodily harm (see Police v Lesa Farani Posala - Sapolu CJ - 13 May 1994, as to the meaning of ‘grievous’ in the phrase ‘grievous bodily harm’, and see the authorities relied upon by me in the case of Police v Ala Kolio - 18 March 1999 - as to the question of mens rea).

On the day in question you and the victim and other members of your family had been attending a picnic. You and others had been drinking a lot of beer. You were pretty drunk. At the end of the day you became involved in a fight with your brother. During that fight the victim of your crime intervened to try to stop the fight, but that was difficult for him to do; that was ‘easier said than done’. The victim found it necessary to strike a blow and, in the course of the fight, he punched you. This apparently angered you very much - it created more than animosity. You then left the area where the fight had taken place, and you went home and grabbed a bush knife. You then returned armed with the knife. Upon seeing the person who had intervened, a conversation took place between you and him, he fled, you chased him and caught up with him. You then slashed him twice with the bush knife, once to the back of his head and once to his left hand.

Your counsel said to me that, “to a certain extent, you were provoked to a fair degree by the punch.” I do no see it as provocation. I see the punch as being merely a precipitating factor towards, something which was one of many causes of, your violent angry retaliation.

On the evidence, I have no reason to believe that the victim had done anything to cause you, in any real sense, to lose your self control. Your culpability is not reduced by loss of self control.

The victim of this serious crime of violence was taken to hospital. Regrettably and despite surgical treatment, the 4^th and 5^th fingers of the victim’s left hand had to be completely amputated. His head wound was treated as well.

The way in which breaches of sections 78, 79 & 80 of the Crimes Ordinance 1961 are expressed, together with their respective maximum penalties, indicates that certain statutory factors render the act of causing injury more or less grave. These factors include the nature and extent of the injury inflicted on the victim and the offender’s mens rea at the time of committing the offence (as to mens rea, see Police v Ala Kolio - 18 March 1999).

This was a serious and appalling crime. It is known in the law as an aggravated crime of violence. Besides the serious aspect of your crime, namely that you meant to cause very serious injury to the victim, an aggravating circumstance is to be found in the fact that you used a machete (a bush knife). This was also something more than a spur of moment crime. It was premeditated in the sense that you left the scene of the fight, went to your house, got the bush knife and then returned; and you used it meaning to cause very serious injury.

The injuries which resulted were, in fact, severe and disabling. Your victim has been left with permanent disability and disfigurement.

You are entitled to some leniency (I can show some mercy towards you) because you pleaded guilty and have shown signs of remorse and contrition. There will be a discount of 25% on account of those factors.

Unquestionably, an essentially deterrent sentence is called for here. Retribution plays some part in the sentencing process. I do not overlook that aspect of punishment known as rehabilitation.

The fact that you had been drinking heavily on the day in question explains (but does not excuse) your conduct.

I have listened to the submissions of your lawyer, Mr Toailoa. I have read the pre-sentence report prepared by the Probation Service. I note that your father has apologised to the victim’s family and that that has been accepted. I have read the letter prepared by the Reverend Livingstone Peseta. I regret that I cannot go as far as to do what the Reverend asked me to do, but I do take into account the fact that, apparently, there has been some change in your life recently.

There are some crimes which are so serious that the offender must be punished with a prison sentence, even when the offender is young (as you are), even if the offender is a first offender (as you are), and even if the offender is remorseful (as you are), and even when a traditional apology has been made and accepted. This is such a crime. It gives me no pleasure to see a young man like you having to go to prison.

The sentence of the court is that you be imprisoned for two (2) years.

JUSTICE WILSON