Police v Taueu [2007] WSSC 93 (17 December 2007)

IN THE SUPREME COURT OF SAMOA
HELD IN APIA

BETWEEN:

POLICE
Prosecution

AND:

KONELIO TAUEU
male of Faleula.
Accused

Editor's note: Sentence by Sapolu CJ

Counsel: P Chang for prosecution
T K Enari for accused

Sentence: 17 December 2007

SENTENCE

The charge

The accused appears for sentence on the charge of wilfully causing grievous bodily harm without lawful justification which carries a maximum penalty of seven years imprisonment. Initially the accused was charged with attempted murder but when that charge was withdrawn and substituted with the charge for which the accused is now appearing for sentence, the accused pleaded guilty to the substituted charge.

The offending

As it appears from the summary of facts admitted by the accused, the accused who is a 28 year old male and the victim are a married couple. They have an adopted daughter. They had marital problems due to interference from the victim’s mother and because of the victim working late. Following ongoing disagreements, the accused moved out of the house of the victim’s family at Faleula and stayed with his aunty elsewhere for two weeks. When he later visited his daughter who was at the hospital, he was chased away by his wife and her mother. The accused told the police that from that time on he become angry with his wife as he knew she no longer loves him. So he thought of killing his wife.

On Sunday morning 10 December 2006 around 4am, the accused went to his wife whilst she was asleep to sort out their marriage problems. He took with him a steak knife. When he got to his wife he hid the knife under her pillow. The accused told the police that he went to his wife with two intentions. Those were, an answer from his wife that would make his heart happy or an answer that would make his heart unhappy and then he would carry out the purpose for which he took the knife with him.

When the accused got to the victim, he woke her up and professed his undying love for her. He then asked her if she still loved him or whether she has changed her mind about him. The victim replied that it was better for them to go their separate ways because her family has become unhappy with him. Upon hearing his wife’s reply, the accused pulled out the knife and stabbed his wife whilst she was lying down with her back facing him. The knife penetrated the victim’s right breast. As she screamed out in pain and called out for her family to take her to the hospital, the accused fled the house. The victim was taken to the hospital where she was placed under intensive care.

As it appears from the pre-sentence report, the accused told the probation service that he had been drinking before he committed this offence. He said he was angry with his wife for having an affair with another man. When questioned by the probation service whether he had any intention to kill his wife he said no. The victim, however, told the probation service that the accused was jealous of her and was always suspicious of her seeing another man.

The accused and the victim have reconciled and are now living together again as husband and wife. The victim appeared before the Court and pleaded for mercy on the accused. She said this incident occurred because of interference by her family in their marriage and she and her daughter depend on the accused for their maintenance. She has also forgiven the accused.

Aftermath of the offending

As a result of the accused’s action, the victim was taken to the National Hospital where she was found to be suffering from acute shortness of breath and acute loss of blood. The doctor who examined the victim at the outpatients department found a deep penetrating stab wound to the right side of her chest. Abnormal findings such as markedly reduced breath and reduced lung expansion were found in the respiratory system on the right side of the chest.

Treatments were administered and the victim’s condition improved. She was placed in the high dependency unit of the hospital for close observation and management. The victim continued to make good progress and her condition stabilised. After nine days in the hospital, the victim was discharged but she continued to make regular follow ups to the surgical unit of the hospital on weekly basis.

The accused

The accused works as a nightclub waiter where he earns $115 a week to support his family. He had a low level of education. He is a faithful and regular churchgoer. According to what the victim told the probation service, the accused is a good and peaceful man. He is also a reliable and trustworthy husband. What has happened is completely out of character. The accused also apologised to the victim whilst they were being interviewed by the probation service. He has also apologised to the victim’s family.

Since the occurrence of this incident, the family of the accused has made a ifoga to the family of the victim. The ifoga included a presentation of one large fine mat, two boxes of canned hearings and $500 cash. This was accepted by the victim’s family so that this matter has been reconciled and settled.

The accused is a first offender and is very remorseful for what he had done to the victim.

The victim

The victim, as it appears from the report of the doctor who first examined her upon arrival at the National Hospital, is 24 years of age. As that examination took place on 10 November 2006, she must now be 25 years.

The victim’s injuries have already been mentioned.

Aggravating feature

It is clear that the attack by the accused on the victim was premeditated. He also attacked the victim when she was in an unsuspecting and most vulnerable position. The victim was asleep and unaware of the accused’s intentions and that he was armed. As counsel for the prosecution puts it in her sentencing memorandum, the accused "ambushed" the victim in her sleep.

The accused also had no regard for the victim’s life. Even though there is a conflict between what is said in the summary of facts and what the accused told the probation service that he had no intention to kill the victim, it is clear that the accused aimed the knife at the victim’s chest at very close range because they were right next to one another. It was most fortunate for the victim that the stab was not fatal. The accused then fled after stabbing the victim.

The nature of the weapon used and the nature of the injuries to the victim are also aggravating features.

Mitigating features

The mitigating features in this case are the accused’s plea of guilty, the fact that he is a first offender and that this offence was completely out of character, and the ifoga by the family of the accused which was accepted by the family of the victim. I would also accept that the accused is truly remorseful and that this matter has been reconciled and he is now living together again with the victim as husband and wife.

As for the victim’s forgiveness of the accused and her plea for mercy on him, I would only give limited weight. The reason why I give some weight to this factor is because the accused and the victim are living together again as husband and wife and the victim and her daughter depend on the accused as the breadwinner of the family. A sentence of imprisonment would therefore add to the emotional stress already experienced by the victim. As it is said in Sentencing in Tasmania (2002) 2nd ed by Professor Warner at para 3.420 p. 82:

"A victim’s wishes or forgiving attitude cannot be given priority or be allowed to prevail over broader community interests. And fairness suggests a sentencing outcome should not depend on whether a victim is vengeful or forgiving. However, in some cases Courts have been prepared to give a forgiving attitude some weight. In McGhee (1994), a case of attempted murder, where the victims had indicated they had forgiven the offender and did not want him to be punished, Green CJ said the victim’s attitude and wishes ‘whilst not determinative are factors which militate against giving much weight to considerations of retribution and denunciation’. R v F (1998) was a case of indecent assault where the victims were daughters of the offender. Their ambivalent response to the offender-emotional hurt on the one hand and sadness and concern for him on the other – was considered by Slicer J to be a significant factor in the determination of sentence and one which permitted some amelioration of the penalty. In other jurisdictions, Judges have sometimes given considerable weight to victim forgiveness in cases of marital rape. But this is controversial. At most, a victim’s wishes and forgiveness should only moderate the sentence to a limited degree and only when the sentence further aggravates the distress of the victim". (emphasis mine)

One matter that was not touched upon by counsel for the accused in his plea in mitigation is what the accused told the probation service that the victim had been unfaithful to him. According to the accused, it was that matter which made him angry. The victim, on the other hand, told the probation service that the accused was jealous of her and was always suspicious of her seeing another man. I am rather unclear as to what is the truth here. This is because the summary of facts states that the reasons for the marital problems between the accused and victim were due to interference by the victim’s family and the victim working late. However, the accused told the probation service that the victim became unfaithful to him. In any event, I have decided to treat the accused’s "suspiciousness" as it is put by the victim as a mitigating factor but not with the same weight as it would have been if I was reasonably satisfied of the reliability of the allegation of unfaithfulness made by the accused. I am also not to be taken as saying that I accept the allegation of unfaithfulness made by the accused to the probation service. The victim is not admitting the allegation.

The decision

Having regard to the aggravating and mitigating features of the offending, I will take 4½ years as the starting point for sentence. I will then deduct 25% for the plea of guilty and that leaves 3 years and 5 months. I will deduct another 12 months for the other mitigating features. That leaves 2 years and 5 months. The accused is sentenced to 2 years and 5 months imprisonment. The time that the accused has already spent in custody is to be deducted from that sentence.

CHIEF JUSTICE

Solicitors
Attorney-General’s Office, Apia for prosecution
Kruse, Enari & Barlow