Police v Ford [2007] WSSC 48 (19 June 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ALOFA FORD
female of Malaela and Satitoa, Aleipata
Accused

Counsel: M Lui for prosecution
R Papali’i for accused

Sentence: 19 June 2007

Sapolu, CJ

SENTENCE

The charge

The accused appears for sentence on the charge of having wilfully and without lawful justification caused grievous bodily harm to the victim. The charge carries a maximum penalty of seven years imprisonment. To the charge the accused had entered a plea of not guilty. After a two day trial the accused was found guilty of the charge.

The offending and its aftermath

It appears from the evidence that was adduced during the trial, and which I have decided to accept, that on Wednesday afternoon, 1 March 2006, at about 4pm there was a fight on the public road at the village of Satitoa, Aleipata. During that fight a cousin of the accused was assaulted by the victim. The accused was told by some boys of her village about her cousin being assaulted by the victim. So the accused hurried to where her cousin was being assaulted. She was holding a knife and a hand-towel. The knife was covered with the hand-towel. The accused testified that when she arrived on the scene of what was happening, the victim pulled her cousin’s hair and hit her head on the road. According to the victim’s testimony, the accused’s cousin was being cheeky to women.

The victim then walked away to her home. The accused called out to the victim to wait but the victim kept on walking. The accused then followed the victim whilst still holding the knife covered with the hand-towel. When the victim got to her home she talked with the wife of her brother inside a faleo’o (Samoan hut). The accused went over and uttered some strong words at the victim concerning the assault on her cousin. The accused also uttered swear words at the victim. The victim then came out of the faleo’o and there followed an exchange of angry words and swear words between her and the accused with the victim telling the accused to leave her family’s land. The two women then fought by pulling one another’s hair while facing each other. The accused then swung her right hand holding the hand-towel and knife over the victim’s left shoulder and stabbed the victim with the knife above the left scapula. Both women fell down still fighting and shortly afterwards the victim passed out. Members of the victim’s family who were nearby then came over and assaulted the accused.

The victim was taken by her family to the Lalomanu District Hospital the same evening and then to the Tupua Tamasese Mea’ole Hospital in Apia the same night as her condition became worse and more serious. The doctor who received, examined and treated the victim at the Tupua Tamasese Mea’ole Hospital testified that the victim was still bleeding from her wound when he received her and her oxygen level was going down and down. From the doctor’s examination he found that the wound above the victim’s left scapula had penetrated into the victim’s left lung space causing her left lung to collapse. An emergency chest drain was inserted to relieve the victim of her symptoms. The victim was admitted in the hospital for eight days.

In the doctor’s opinion, it would have required a very sharp object and much force to cause the wound sustained by the victim. He also testified that the wound was very serious and the victim would not have survived the following day if she had not been brought to the hospital sooner. The victim testified that where the emergency chest drain was inserted on her left side still hurts when it itches and she scratches it. It was not clear from the evidence how long this condition will last.

The accused

The accused is a 39 year old female. Her real village is Malaela, Aleipata. At the time of this offence and up to now, she has been residing with her husband and five young children, at the family of her husband in the neighbouring village of Satitoa. She spends her days caring for her children and parents in law while her husband runs a fishing business.

The accused is a first offender and was otherwise a person of good character until the commission of this offence as shown from her pre-sentence report and attached testimonials. The accused’s husband described the accused to the probation service as a good and loving person and her father in law described her as a good wife and loving mother. The victim also described the accused to the probation service as a humble, happy, understanding and kind person.

According to the testimonial provided by the bishop of the Mormon Church of Malaela of which the accused is a member, the accused is an honest and dependable member of their church. She was the president of the Young Girls Group and of the Mothers Group of their church. She was also a missionary (faifea’u tala’i) of their church for two years. According to the testimonial from the pastor of the Methodist Church at Satitoa, the accused is a keen supporter of church activities and is a Sunday school teacher. She is also a good person and dependable member of the Mothers Club (Mafutaga a Tina). The testimonial from the pulenu’u of Satitoa states that the accused is a frequent churchgoer, a member of the aualuma who is supportive of village activities, and is a kind person.

Aggravating factors

There are several aggravating factors in this case which are set out in the sentencing memorandum submitted by counsel for the prosecution. The first is the serious nature of the injury inflicted on the victim and the fact that it could have been fatal if medical treatment had not been sought sooner. The second is the type of weapon which was used which was a sharp knife. This is a very dangerous weapon with which to assault another person. The third is premeditation. It is pointed out by counsel for the prosecution that when the accused approached the scene of what happened; she was already armed with a knife. The covering of the knife with a hand-towel was for the purpose of hiding the knife from view. Moreover, even though the victim had walked away, the accused followed the victim to her home still holding the knife covered with the hand-towel. The fourth factor is the impact of the injury on the victim. Counsel for prosecution refers to the testimony of the victim where she said that as a result of the emergency drain that was performed, her left side where the drain was inserted still hurts especially when it itches and she scratches it. It was not clear from the evidence whether this would be a temporary or permanent condition. However, it is to be noted that this incident occurred on 1 March 2006 and the emergency drain was inserted the same right on the victim’s left side. On 3 May 2007, more than a year later, when the victim testified at the trial of this matter, she said that her left side where the emergency drain was inserted still hurts when it itches and she scratches it.

Mitigating factors

The mitigating factors which are set out in the written submissions prepared by counsel for the accused are as follows. The first is provocation. Counsel for the accused submits that the assault by the victim on the accused’s cousin who is younger than her provoked the accused. The second is that the accused is a first offender and the pre-sentence report together with the attached testimonials show the accused to have been a person of very good character prior to the commission of this offence. Counsel then submits that this offence is out of character. The third factor is the punishment imposed by the village fono of Satitoa on the accused and her family. That punishment was a fine of 10 large sows and $1,000 and it has been paid. The fourth factor is that there has been a reconciliation and settlement of this matter in accordance with custom. The sa’o (head matai) of the accused’s family had apologised and presented $200 to the matai of the victim’s family which was accepted. There is now peace and harmony between the two families. The fifth factor is remorsefulness on the accused’s part. Counsel pointed out that on the day following the victim’s admission to hospital, the accused’s family visited the victim and apologised to her. The accused also paid the victim’s hospital bill. When the victim was discharged from the hospital, the accused and her husband went and apologised to her. A monetary gift was also given on that occasion. Both apologies were accepted. The sixth factor pointed out by counsel are the efforts (set out in her written submissions) made by the family of the accused to maintain good relationships with the family of the victim.

Counsel for the accused also submitted that in the circumstances of this case a measure of mercy for the accused would be justified. She referred for this submission to the decision of the Court of Appeal in Chong Wong (Amosa) v Police [1980-1993] WSLR 45. Counsel also referred to the fact that the accused has five young children, the youngest being 2 years old.

Another matter to be noted in this connection is the plea by the victim for mercy on the accused. The victim appeared in Court during sentence and said that she has forgiven the accused and asked for mercy on her. She also said that this matter has been settled.

The decision

Counsel for the accused in her written submissions refers to the decision of the Court of Appeal in the case of Chong Wong (Amosa) v Police [1980-1983] WSLR 45 for the primary purpose of sentencing which is the protection of society from crime. Associated with that primary purpose are other purposes which are: (a) retribution which is a just punishment to reflect society’s denunciation of a particular offence, (b) deterrence of the particular offender, (c) deterrence of others who might be inclined to commit the same type of offence, and (d) rehabilitation of the particular offender. As stated in R v Veen (1988) 164 CLR465 at p.476 by Mason CJ, Brennon, Dawson and Toohey JJ:

"The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none can be considered in isolation from the others when determining what an appropriate sentence is in a particular case. They are guideposts to appropriate sentence but sometimes they point in different directions.

In cases of grievous bodily harm matters like premeditation, the degree of violence involved, the nature of the weapon used, the nature and consequences of the injury caused, provocation, remorsefulness, and the personal circumstances of the offender go to aggravation or mitigation of penalty. This will determine the sentencing purpose or purposes to be applied in a particular case and the sentence to be imposed.

In this case I have decided to accept the aggravating factors submitted by counsel for the prosecution. They reflect the gravity of the accused’s offending. I have also decided to accept in mitigation that: (a) there was provocation by reason of the assault by the victim on the cousin of the accused, (b) the fact that the accused is a first offender and was previously of good character so that this offence is out of character, (c) the punishment already imposed by the village fono of Satitoa on the accused and her family, (d) the reconciliation and settlement of this matter in accordance with custom so that there is now peace and harmony between the two families, (e) the apology made by the accused to the victim and the payment of the victim’s hospital bill which manifest remorsefulness, and (f) the plea for mercy on the accused by the victim.

I give very little weight to the fact that the accused has a young family. As pointed out in Sentencing In Tasmania (2002) 2nd ed by Professor Kate Warner at 3.704 p.115:

"Hardship to the offender’s family is usually given very little weight as a mitigating factor; it is regarded as part of the price to be paid for committing a crime. So, in Sullivan Serial No 15/1985, it was stated that where the public interest requires a prison sentence, substantial or otherwise, that sentence must be imposed despite the regrettable hardship which innocent members of the family will suffer. But exceptional hardship other than financial may be relevant, and where the offender is a single parent or the imprisonment of both parents would leave children without parental care, Courts have adopted a more sympathetic attitude. The circumstances, however, must be truly extreme or exceptional."

The circumstances of this case are not truly extreme or exceptional to justify any significant weight being given for the fact that the accused has a young family of five children with the youngest being two years old.

Whilst it is true that the sentence to be passed depends primarily on the circumstances of each case, previous cases of grievous bodily show that this type of offence usually calls for deterrence and attracts a prison sentence. Having regard to the aggravating and mitigating factors and the deterrence aspect of sentencing, the accused is sentenced to 2 years imprisonment.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution