Police v Tuitama [2005] WSSC 22 (16 September 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

TALALELEI REUPENA TUITAMA, of Faleasiu.
Accused

Counsel: P Chang and S Rimoni for prosecution
M Tuatagaloa for accused

Sentence: 16 September 2005

SENTENCE

The charge

The accused was initially charged with attempted murder under s.68 of the Crimes Ordinance 1961, causing grievous bodily harm without lawful justification under s.79 of the Ordinance, and threatening to kill under s.82 of the Ordinance. The accused entered a plea of guilty to the grievous bodily harm charge but no plea was entered in respect of the other two charges. The matter was then adjourned for the accused to engage counsel to act for him and if he could not afford to pay for counsel he was to apply for legal aid due to the seriousness of the charges against him. The accused is now being represented by counsel. But before the accused engaged counsel, his guilty plea to the charge of grievous bodily harm had been changed and substituted with a not guilty plea pending the engagement of counsel.

When this case was re-called with counsel appearing for the accused, the prosecution withdrew the charges of attempted murder and threatening to kill. The accused through his counsel then withdrew the not guilty plea entered in respect of the grievous bodily harm charge and re-entered a plea of guilty to that charge. The offence of causing grievous bodily harm without lawful justification carries a maximum penalty of seven years imprisonment.

The offending

At the village of Faleasiu in the late afternoon of Thursday, 26 February 2004, the accused went to the house of the victim, who is his sister in law, to look for his bushknife sharpener. At the victim’s house, the accused asked the victim’s ten-year-old son whether he has seen his bushknife sharpener. When the victim’s son replied no, the accused hit him with the handle of the bushknife he was carrying. At that time, the victim called out to her son to go and gather the grass. The accused, as shown from his probation report, told the probation service that the victim also uttered a swear word at him which made him angry. The accused then walked to the victim still holding his bushknife. It appears from the prosecution’s summary of facts which was confirmed by the accused that the victim was not aware of the accused walking towards her until a relative of the accused called out to her. When the victim turned around, the accused had reached her. At that time the accused held up his bushknife about to strike the victim. By reflex action, the victim says she held out the long broom (salu tu) she was holding to defend herself but the strike hit the handle of the broom, broke it into two pieces, and hit the victim’s left thumb. The accused denies that the victim used a broom. The victim who was at the time six months pregnant then ran away for safety to the accused’s relative who had earlier called out to her. The accused followed the victim with his bushknife. He stopped when his relative with whom the victim had sought safety called out to him not to come to her house.

The victim was taken the same evening to the Leulumoega District Hospital and later to the Tupua Tamasese Meaole National Hospital where she had an operation. The palm of her left hand was severely cut and her left thumb was almost completely severed off. Even though the injury to her left palm has healed and her left thumb has been stitched back, the victim is still feeling pain in those parts of her body when she uses her left hand to do manual work.

The victim

Apart from what has already been said about the victim, there is no other information about her that needs to be mentioned.

The accused

The accused is a 41 year old male of Faleasiu. He is single. He is a planter and he also helps out his family with domestic chores. Physically, he is a strong man. He is obedient and respectful to his parents. However, he has a problem. He is short-tempered and can be quite violent at times. In February 1996 he was convicted of attempted murder when he shot the wife of one of his brothers. On that occasion he was sentenced to four years imprisonment. In December the same year he was convicted of causing actual bodily and sentenced to twelve months imprisonment. Those are the accused’s previous convictions. It is not clear when he completed serving his terms of imprisonment and whether he was granted parole. In February 2004 he committed the offence for which he is now appearing for sentence.

The history of the accused as briefly set out in the pre-sentence report prepared by the probation service shows that in the late 1980’s the accused fell off from a running horse. As a result he sustained a laceration to the skull of his head. He was taken to New Zealand for special medical treatment. On his return to Samoa he was observed to be short-tempered. Not long afterwards, he committed the offences for which he was convicted and sentenced to prison in 1996.

The accused was referred by his counsel on 19 May 2004 to the consultant psychiatrist at the mental health unit of the Tupua Tamasese Meaole National Hospital. In his report to counsel for the accused, the consultant psychiatrist says:

“On Wednesday, May 19, I saw this man very briefly. He did appear to have less body and facial hair than one would expect but he appeared to have no slowing of his mental functions on very brief assessment. I could see him for a full assessment but I believe you would be better getting an assessment from a clinical psychologist if your concern is his intellect as a result of hypopituitarism”.

The report from the clinical psychologist states that the damage to the accused’s pituitary gland through his brain tumour will result in behavioural problems including “irritability, short-fused with minimal provocation and anger”. There is also the medical report from a private doctor which states that in 1994 the accused had a brain tumour removed by surgery in New Zealand. The accused was recommended to take certain medication as he needs lifetime replacement therapy. I must say that if it was in 1994 that the accused was taken to New Zealand for a surgical operation to have a brain tumour removed, then I have doubts about the story related to the probation service that in the late 1980’s the accused suffered injury to his skull when he fell from a running horse which necessitated his being taken to New Zealand for medical treatment. There is a suggestion from the report by the private doctor that since the accused’s operation for his brain tumour in New Zealand, the accused has been showing psychiatric tendency.

With regard to the accused’s educational background, the pre-sentence probation report shows that the accused attended the Faleasiu Primary School and then the Church College of Western Samoa. He was ‘sent out’ of the Church College of Western Samoa for poor discipline. Given that the accused is now 41 years of age, the alleged incident about his falling off from a running horse in the late 1980’s and his brain tumour operation in 1994 must have occurred well after the accused had left school.

Mitigating factors

The accused’s plea of guilty to the charge for which he is now appearing for sentence is a mitigating factor. His medical condition entitles him to some degree of leniency. It should be re-mentioned in this connexion that the consultant psychiatrist also says in his report that during his brief examination of the accused he ‘appeared to have no slowing of his mental functions.’ Counsel for the accused also informed the Court that the accused has already apologised to the victim but it is not clear when that happened.

Aggravating factors

The injuries which the accused inflicted on the victim were serious. Not only was the victim’s palm of her left hand badly injured but the thumb of her left hand was almost completely severed off. The bushknife that was used is a dangerous weapon. Even though the victim uttered a swear word at the accused when the accused struck the head of her ten year old son with the handle of his bushknife, the retaliation by the accused was totally out of proportion. Not only did the accused strike the victim with his bushknife but he also followed her with his bushknife when she ran away. The accused only stopped when a relative of his, to whom the victim had run for safety, called out to him not to come to her house. I think it should also be borne in mind that the victim did not just utter a swear word at the accused without any reason at all. The accused had hit the head of the victim’s ten year old son with the handle of his bushknife.

The victim still feels pain in her left palm and left thumb when she uses her left hand for manual work. The accused also has two previous convictions for attempted murder and causing actual bodily harm which involved the use of violence.

Submissions by counsel

Miss Rimoni submitted on behalf of the prosecution that given the gravity of the offence which carries a maximum penalty of seven years imprisonment, the seriousness of the injuries to the victim and their continuing impact on her, the nature of the weapon that was used by the accused, and the accused’s previous convictions for offences which involved the use of violence, a custodial sentence is justified in this case.

Counsel for the accused on the other hand asked for a suspended sentence. She submitted that the accused has mental problems and that when the present offence was committed, the accused had run out of the prescribed medication he was taking as a lifetime therapy. The same thing had happened before when the accused committed the crimes on which he was previously convicted; he had run out of his prescribed medication. The problem here is that there is no evidence to satisfy the Court that if a suspended sentence is imposed the accused will not again run out of his prescribed medication. The consultant psychiatrist’s report also says that the accused appeared to have no slowing down of his mental functions. The accused is a dangerous risk to the public, particularly to members of his immediate family.

Counsel for the accused also pointed out that the accused has already been sentenced for the offences for which he had been previously convicted. If this means that an accused shall not be sentenced afresh for past offences, then I fully agree with counsel. But previous convictions are relevant for sentencing purposes to show whether the present offence is uncharacteristic of the offender or whether it shows a continuing attitude of disobedience of the law on the part of the offender. Previous convictions are also relevant if they show a dangerous propensity on the part of the offender or show a need to impose condign punishment to deter the present offender and like-minded people from committing the same kind of offence. See, for example, the judgments of the High Court of Australia in Veen v The Queen (1988) 164 CLR 46s at pp 447-478, pp 488, 491, 495; Baumer v The Queen (1988) 166 CLR 51 at pp 57-58. However, as those cases show, it is the circumstances of the case that is before the Court which is the determinant of what should be the appropriate sentence.

The decision

Having regard to the degree of criminality involved in the commission of the present offence and its gravity together with the other aggravating factors mentioned earlier, I am of the view that a custodial sentence as sought by the prosecution is justified. The accused is a dangerous risk, particularly to members of his immediate family. I also take into consideration in mitigation the accused’s plea of guilty to the charge and to a certain extent, his health condition. In all the circumstances I have decided it would not be appropriate to suspend the sentence to be imposed. The authorities should provide any psychological assistance that may be needed by the acused during his sentence.

The accused is convicted and sentenced to two years and nine months imprisonment.

CHIEF JUSTICE

Solicitors:
Attorney General’s Office for prosecution
Brunt Keli Law Firm for accused