Police v Faimeaita [2010] WSSC 133 (5 November 2010)

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

ETIUATI SEUAMULI FAIMEAITA
male of Avao
Defendant

Presiding Judge: Justice Vaai

Counsel: Gafatasi Patu for the prosecution
Treena Atoa for the defendant

Sentence: 5 November 2010

SENTENCE

1. The defendant was found guilty of attempted murder by assessors after a three day trial. The charge of attempted murder arose out of an incident at the village of Avao on the night of 16th January 2010 at the conclusion of a dance held in the village. At the end of the dance the defendant and a friend walked to a neighbouring village to accompany his female cousins who were also at the dance. On their return to Avao village they came across a commotion where a village girl and another man were assaulted. The man who was assaulted was from another village and was constructing a house in the village for the victim who lives permanently in New Zealand. Before attending the dance the victim and his capenters have been consuming alcohol at the victim's home.
   
2. The assault angered the victim. He was aggressive and abusive; he challenged residents of the village; his disorderly conduct and swearing invited trouble which eventually resulted in a fist fight with the defendant's younger brother who was much younger and smaller than the victim. The fight was started and instigated by the victim who threw the first punch without any provocation from the defendant's younger brother. Soon after the fight started the victim and the defendant's younger brother fell to the ground with the victim on top of the defendant's younger brother. At that point of time the defendant and his cousin were standing not far away almost infront of the defendant's house which was close to the main road where the defendant and his cousin were watching the fight.
   
3. Upon seeing the victim throwing punches at his younger brother who was on the ground, the defendant ran to his house, grabbed the machete and ran to the scene of the fight where the victim was bending down throwing punches at the defendant's younger brother who was still lying on the ground. Upon arrival the defendant struck the victim with the machete landing on the upper part of his back; he struck the victim again around the same area. After the second strike, the victim got to his feet and ran away, but as he ran away he was chased by the defendant who struck him twice from behind and to the same area of the back causing the victim to fall on the ground. The defendant then walked away.
   
   4. Relatives of the victim walked home with the victim before they took him to Safotu hospital. He was then taken by ambulance to the Tuasivi hospital where he was stablised before he was transferred to the National Hospital. On arrival at Tuasivi hospital he was described as weak but alert and coherent in his responses to questions. Four wounds were observed on his body:
      
      • (i) The wound on the posterior neck was about 50 centimeters long, 10 to 15 centimeters deep and obligue in incision. This injury had exposed part of the spinous process of the C7 vertebral and had severed the trapezius muscles of the neck, unabling him to extend the head at the neck joint."
        
      • (ii) The other 3 wounds on the back were deep and extensive as well as measuring about 15 x 10 x 2cm. There was bleeding but was stitched tie and control with pressue packing."
        
      • (iii) Despite the severity of the injuries to the neck, he did not exhibit any signs of neurology, deficits over the upper limbs and the rest of the body."
        

Aggravting Factors

5. Instead of approaching the scene of the fight to render assistance to his younger brother, the defendant deliberately ran to his house to fetch the machete and intentionally inflicted injuries to the victim. His aggressiveness continued after the second strike when the victim ran away from the scene of the fight. As he pursued the victim the defendant delivered two further strikes with the machete.
   
6. All the four strikes were aimed at the upper part of the victim's body. The four injuries were deep and extensive, in fact the first wound described as 50 centimeters long and 10 to 15 centimeters deep has severed the trapezius muscle of the neck so that the victim is unable to extend his head at the neck point.
   
7. As a result of the injuries suffered the 39 year old victim with a wife and family to support is unable to continue with his former employment. Other than the loss of security of income the offending has undoubtedly impacted negatively on the victim, his immediate and extended family as well as within the village.
   

Mitigating Factors

8. At the age of 26 years the defendant appears for the first time in a court of law. Testimonials submitted speak of the defendant's good character and commendable personality within the family, village and church. His offending is certainly out his character.
   
9. A formal apology has been rendered by the family of the defendant to the family of the victim. Traditional village sanctions have also been imposed and the defendant's family has financially suffered as a result.
   

Discussion

10. The attack by the defendant of the victim with the machete was triggered by his anger and aggression. It was not, as he alleged, to protect his younger brother whose life was not endangered when the defendant pursued the victim who was running away and delivered two further blows with the knife.
    
11. Notwithstanding what I have just said, I cannot ignore that the victim's actions and druken conduct inflamed the anger of not only the defendant and his brother, but of the other villagers who were at the scene. I must therefore accept that there was an element of provocation which must be exercised in the assessment of the defendant's culpability.
    
12. It must not be forgotten however that the attack on the victim eventually became a matter of revenge but at least initially it started as a reaction to the hostile conduct of the victim and the unprovoked attack by the victim of the defendant's younger brother.
    
13. The blows by the defendant with a very dangerous weapon must nonetheless be viewed as very serious which justify a corresponding stern sentence to deter the defendant and others from resorting to extreme violence and dangerous weapons to settle differences and grievances.
    
14. As stated in other cases of attempted murder the victim in this case was very fortunate tha he survived the attack. The same can be said about the defendant as he would have faced a more serious charge if the victim did die. The injuries were as already stated were very serious and were in the vicinity of the neck of the victim.
    

Sentence
Considering the circumstances surrounding the offending I take nine years imprisonment as a starting point. For his previous good record I deduct two years. For his remorse, the apology tendered to the family of the victim and the fines imposed by the village I deduct a further two years. The defendant will serve 5 years imprisonment less the time he was remanded in custody.

JUSTICE VAAI