Police v Ionatana [2010] WSSC 39 (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. Joseph Ionatana has been found guilty of the crime of causing grievous bodily harm contrary to the Crimes Ordinance s.79. The assessors had found him not guilty of the crime of attempted murder. On 25 April 2008 Joseph threw a petrol lit bottle at or towards a group of students waiting at the bus stand in the centre of Apia. He did so at a busy time when both the market and bus stop were crowded especially with students waiting to go home after school. The petrol bomb hit a young girl (the complainant) and two of her fellow students. She was horribly injured suffering second degree burns.
   
2. The attack on 25 April had followed an assault on the Head Boy of Don Bosco College made at a rugby match the previous day by students from Leifiifi College. Senior students including the Head Boy of Don Bosco planned a fight in retaliation during the morning of 25 April which included the wearing of non-school clothes, the carrying of weapons such as metal bars and stones and at least one soft drink bottle containing petrol and fitted with a cloth wick. Many students were involved including those of the second form of which Joseph was a member. The students went to the market and bus station in accordance with the plan. The hostility was directed at students from the Avele and Leifiifi schools although it is not clear why the former school was to be involved in the retaliation. Joseph went with others to the bus station. It is said that he was merely following the directions of older students and was subject to peer group pressure. But he could have elected not to become involved as, to their credit, did some of his fellow students. Fighting broke out at the bus station and continued for some time extending to conflict with police.
   
3. Before the fighting started Joseph was given the prepared bottle containing petrol. He went to one of the shelters, ignited it and threw it in the direction of students from the Leifiifi College who were mainly if not wholly girls as the boys of the school had been advised to stay away. Students at the station waited in school groups and the Leifiifi girls were waiting in a section between the St. Mary's and Samoa College sections.
   
4. The fire bomb was thrown in the general direction of the girls and hit the complainant spreading petrol over her hand, head, face and torso. It also injured at least two other girls.
   
5. Joseph is to be punished for his acts of taking the fire bomb, walking to a specific part of the bus shelter, lighting the weapon and throwing it at or towards a group of young persons. He is to be punished for the life threatening injuries he inflicted on a young girl, who had caused him no harm or insult and which have continued to ruin her life. Whether he intended to hit the particular girl is irrelevant. The area was busy and his conduct bound to harm a member or members of the public gathered in a public place. The action was directed at an identified group.
   
6. Joseph is a young man aged 20. He has led a troubled life and was badly treated when he was young. It is said that ill-treatment has made him more likely to be obedient to others and to be influenced by peer group pressure. That might be correct but when he was handed a petrol bomb, went towards a group of students, lit the cloth and threw it at them, he was in control of his own actions. Groups might be incited to irrational and unthinking violence but Joseph's conduct was deliberate, dangerous and directed at an identified group namely students from a specific school. It is for that he ought be punished.
   
7. Joseph has a good record in his studies both at Don Bosco and now at the Pastoral Formation School at Lotofaga. He is preparing to become a member of the pastoral outreach programme. It is said that this Court could require him to remain as a resident of that programme, subject to restrictions as a substitute for imprisonment. Such a course is beyond the power of this Court. He does not come within the terms of the juvenile justice legislation. The Community Justice Act 2008 Part III does not permit a supervision order unless a sentence of imprisonment less than 12 months is imposed. The nature of the crime does not permit the application of the Criminal Procedure Act 1972 s.113. It would be inappropriate for this Court to regard the nature of the offence as a circumstance permitting a deferred or non custodial sentence. The use of a petrol bomb in a busy public place requires a deterrent sentence. The aggravating features are the weapon used, the place, the range at which it was used, the identification by the offender of the group to be attacked and the serious foreseeable and totally unnecessary injuries caused. General deterrence is here an important factor. The Court is aware that from time to time schools and their students engage in confrontations and fighting. It is natural that there is rivalry between schools and often there will be good spirits and pride in the rivalry. Human nature suggests that sometimes blows will be exchanged. But when rivalry extends to weapons, the beating of the helpless, groups against individuals and the mentality of the lynch mob it becomes cowardice and contempt or hatred of people like ourselves. The Court will not countenance that escalation. The sentence must also reflect the principle of retribution. This offender is fortunate in that the young woman did not die. But her injuries were grievous and her future life harmed. The just desert theory is a modern form of retribution. Retribution takes into account the community's indignation revulsion and restrained moral outrage of an informed community. Senseless harm of this nature cannot but give rise to general outrage. Particular outrage to a particular act might not be a relevant consideration since it might put more value on the life or safety of one person over that of another but general concern for the nature of the act and its risk is relevant.
   
8. Retribution is also necessary to prevent unofficial or vigilante sanction. Crime requires state retaliation on behalf of the community not that by private individuals. Failure to impose an appropriate sentence attracts the risk that community respect for the administration of the criminal law will be lessened and increases the likelihood that members of the community will improperly take the law into their own hand and inflict harsh and personal retribution on the offender. The victim would be entitled to feel neglected by the system and discontent with the legal process.
   
9. The Court is conscious that its decision will harm or ruin the future prospects of the offender. It accepts responsibility for that harm. But a significant sentence is required despite the mitigating matters and the youth of the offender. The time already spent in custody is not sufficient to warrant any allowance. The Court has considered the range of cases such as Tuitogi 2007 WSSC 6, Gali 1999 WSSC 19, Matalavea 2006 WSSC 30 and Leifi 2005 WSSC 25 which are of some assistance but concerned individual acts arising from a fight with another individual. Here the attack was against a group in a public place involving a random victim. The case of Chong Wong 1993 WSLR 451 relied upon by counsel for the defendant is of little assistance involving a fight which had escalated. Another case Aiga 1993 WSLR 344 involved the use of excessive force and likewise is not a comparable case. The use of weapon (Iosia [2006] WSSC 3) and the harm caused to the victim (Amituanai [2009] 41) are more relevant to the circumstances of this case. The maximum sentence provided for by the Ordinance is one of imprisonment for 7 years. Allowing for the youth of the offender, his good record and the effects of his childhood on his reaction to peer or group pressure the appropriate penalty is that of 5 years imprisonment.
   

Orders:

1. Joseph Ionatana is convicted of the crime of Causing Grievous Bodily Harm.
   
2. Joseph Ionatana is sentenced to a term of imprisonment for a period of 5 years to commence as and from 22 March 2010 the date of the sentencing hearing.
   

JUSTICE SLICER