Police v Auvailiili [2010] WSSC 88 (23 August 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

AUMAGA AIOMALAGA AUVAILIILI,
male of Lalomauga
Defendant

Presiding Judge: Justice Slicer

Counsel: P Chang for Prosecution
T Enari for Defendant

Hearing: 21 May 2010
Decision: 23 August 2010

Charge: Grievous Bodily Harm

REASONS AND DECISION

1. Aumaga Auvailiili pleaded guilty, at the end of the prosecution case of a defended hearing in which he is charged with the crime of causing Grievous Bodily Harm contrary to the Crimes Ordinance 1961, section 79.
   
2. On 8 May 2008, a group of young men were watching dance rehearsals of persons preparing for Mother's Day celebrations. Aumaga walked past and without provocation or warning kicked the complainant in the head. The injuries were severe. The blow fractured the mandible, loosened 3 teeth and caused lacerations to the gingival tissue. The complainant required hospitalisation and a surgical operation. The defendant was interviewed and admitted kicking the complainant who was from his village.
   
3. The defendant aged 42 has a long history of Schizophrenia and was first treated as a mental patient in 1970 in New Zealand. He returned to Samoa in December of that year but was arrested in 1992 for violent conduct. He was imprisoned but treated by the Mental Health Unit until his release in October 1992. He received further treatment between January 1993 and July 1994. Since then he has been involved in further acts of anti-social behaviour with intermitted treatment until this event in May 2008. He had been held in custody but granted bail within a short time. In February 2009, he received further treatment and made subject to an Inpatient Treatment Order between 25 February and 8 April 2009.
   
4. His illness is of long standing and is likely to afflict the defendant long into the future. His conduct can be controlled or helped by medication. The opinion of the clinical nurse consultant of the unit is that the conduct of 8 May was a result of a relapse due to the offender being off treatment for some 5 years. He is currently being treated by an injected and long acting drug. In the opinion of the nursing consultant;
   

"He is most likely be well controlled and maintained on on-going regular treatments and follow up, in an environment that is conducive in terms of providing support and where client's needs are met. As long as he remains on treatments, he is likely stays stable and perfectly well."

5. That opinion is shared by the treating psychiatrist who states;
   

"His on going care has been a problem in the past and may continue to be a problem but if the family being him in regularly then his care is likely to be much more reliable."

6. The prosecution suggests the appropriate penalty to be that of 3 ½ years imprisonment. I do not agree.
   
7. A sentence of a person who is significantly mentally affected is relevant to sentence as a mitigating matter since the condition reduces culpability (Gilchrist v R Tas, unrep 82/1982).
   
8. While a sentence ought to take into account the need to remove a person from the community, it ought not to be used as a form of long term protective device disproportionate to culpability (Veen No.2 [1988] HCA 14; [1988] 164 CLR 465).
   
9. The Court has no power to make an order pursuant to the Mental Health Act 2007. The offender has served time in custody. He is responding to treatment. Continued treatment should protect the offender and the community. The Court will use the provisions of the Criminal Procedure Act 1975 section 113 to provide a form of control and provide for the treatment of the offender. The sentencing hearing will be adjourned for 3 months so as to permit contact and treating arrangements to be made through the Mental Health Unit. A Section 113 Order will be made on the resumed hearing.
   

ORDERS

(1) Aumaga Auvailiili is convicted of the crime of causing Grievous Bodily Harm.

(2) The sentencing hearing is adjourned for a period of 3 months.

(3) The defendant will not be admitted to bail during that period.

FURTHER ORDER (23 August 2010)

(4) Aumaga Auvailiili is to appear for sentence within 2 years if called upon by the Court to do so and it is a condition of this order that he submit to a Community Treatment Order in accordance with the Mental Health Act 2007 sections 11 and 12.

JUSTICE SLICER