Police v Ionatana [2010] WSSC 38 (9 April 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Informant

AND:

JOSEPH IONATANA,
male of Maninoa Siumu & Vaiusu
First Defendant

AND:

KOMITI ENE,
male of Lelata & Satoaleapai, Savaii
Second Defendant

Presiding Judge: Justice Slicer

Counsel: Ms. R Titi and Mr. G Patu for the Prosecution
Ms. M V Peteru for the First Defendant
Ms. R V Papalii for the Second Defendant

Hearing: 11, 12, 15, 16 and 19 March 2010
Sentencing: 09 April 2010

Charge: Grievous Bodily Harm

SENTENCE

1. Komiti Ene has been convicted of the crime of causing grievous bodily harm contrary to the Crimes Ordinance s.79. He has been acquitted of the crime of attempted murder. Komiti had been the Head Boy of Don Bosco College. On 24 April 2008 he had been assaulted by students of Leifiifi College during a rugby match played between Avele and Leulumoega schools. He had been assaulted because of his position and school.
   
2. The following day Komiti, with assistance of other senior students, organized students from the college, to retaliate. The plan was for students to go to the market and bus station area and fight with the Leifiifi boys. What happened there is described in the Sentencing Judgment of Joseph Ionatana and need not be repeated here. The result was the throwing of an ignited petrol bomb at a group of girls from Leifiifi one of whom suffered life threatening injuries.
   
3. The verdict of the assessors was that Komiti had incited, aided and abetted Joseph in the act of causing grievous bodily harm to the girl. The incitement was to initiate general violence, advising the students to change their clothing and to go to the area. Although Komiti had not intended a girl to be burnt he remains responsible for the consequences. The abetting was his presence as Head Boy at the scene and giving support and encouragement. The aiding was the preparation of the weapon, its giving to another student and his final act of giving it to Joseph to throw.
   
4. Even though Komiti may not have intended the weapon to have burnt another student, he aided in its throwing at or near a group of students in a busy public place. He ought be responsible for the consequences of his own incitement and participation. He was aware of the potential risk of the use of the weapon.
   
5. The same principles of sentencing as stated in the sentencing of Joseph are applied. The question here is one of parity with the co-offender. An offender's degree of involvement in an offence committed by more than one participant is relevant and the instigator or ringleader of an offence can expect a more severe sentence than other participants (Lowe [1984] HCA 46; [1984] 154 CLR 606, Tait and Bartley [1979] FCA 32; [1979] 24 ALR 473). While different sentences might reflect different degrees of culpability or the different circumstances, such as age or prior record, between offenders, parity remains a guiding principle (Postiglione [1997] HCA 26; [1997] 189 CLR 295).
   
6. Komiti is a young man married with a daughter aged 1 year. He has an excellent record of conduct and studentship. His pre-sentence report shows him to be a responsible person. Until this incident he had served his school well. He had been provoked to retaliation by the unwarranted assaults by the students from another school. There are strong mitigating factors. But there is nothing to distinguish his character from Joseph. If anything the younger boy had been led by others including Komiti. The antecedents of both offenders are similar and themselves do not warrant disparate sentences.
   
7. The Court has an obligation to consider parity and the sentence imposed on a co-offender (Lowe (supra)). Here the degree of culpability, the subjective circumstances of each offender and the consequences of the criminal conduct do not permit or warrant different sentences.
   
8. The Court repeats what it said in the case of Joseph Ionatana. Violence begets violence. Once violence commences it gets out of control. Group violence takes on the face of unthinking and uncontrollable conduct. Each action produces a reaction and the mind of a mob. Here it harmed an innocent student uninvolved in the original cause or in the conflict of others. For a male to hit another male in fair and even combat is one thing, to attack a woman with a firebomb is another. The Court sends a clear warning to those who incite these forms of violence and retaliation that they will be held responsible for the consequences.
   
9. Komiti Ene will be sentenced to 5 years imprisonment.
   

Orders:

1. Komiti Ene is convicted of the crime of Causing Grievous Bodily Harm.
   
2. Komiti Ene is sentenced to a term of imprisonment for a period of 5 years such sentence to commence as and from 22 March 2010.
   

JUSTICE SLICER