Police v Taavao [2012] WSSC 99 (19 November 2012)

SUPREME COURT OF SAMOA

Police v Taavao [2012] WSSC 99

Case name: Police v Taavao

Citation: [2012] WSSC 99

Decision date: 19 November 2012

Parties:
POLICE vTAAVAO ISAAKO TAAVAO, male of Eva

Hearing date(s):

File number(s):

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s): Nelson J

On appeal from:

Order:

Representation:
Ms F Vaai for prosecution
Ms M V Peteru for defendant

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:
Police v Leifi [2005] WSSC 25

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

THE POLICE

Prosecution

AND

TAAVAO ISAAKO TAAVAO, male of Eva.

Defendant

Counsel: Ms F Vaai for prosecution

Ms M V Peteru for defendant

Sentence: 19 November 2012

SENTENCE

This defendant appears for sentence on a charge of causing grievous bodily harm. He is 49 years of age, currently single and according to his probation office pre-sentence report was at the time of the offence living with his family at Eva. He was reasonably well educated has reached Year 12 level of schooling. He has held several jobs including a 10 year stint working overseas and supporting from there his family in Samoa. He has a clean police record and is described by all who know him as well mannered and a well behaved individual. The court accepts his actions in this matter were not in keeping with his normal character and that he behaved out of character. Further that this was a spur of the moment action.

The offence arises out of a boundary dispute. The defendant and the 30 year old complainant are neighbours in the village of Eva. His pre-sentence report from the probation office more fully describes the background to this offending than the police summary of facts. It reports that that the defendant had agreed with the complainants older brother to put up a fence on their border to prevent pigs going over from one property to another. The defendant was to put up the fence. He started by firstly putting up the posts. He then laid the wire for the fence next to the posts intending to complete his task the next day.

The next day when he went to complete the job he saw that someone had removed the posts and the wire and tossed them back into his yard. He saw the complainant working on their land so he called out to him but the complainant did not reply or look at him. This agitated the defendant so he went and talked to the complainants older brother and mother. They told him they will talk to the complainant when he returns home. The defendant decided to leave matters as it was.

About a week elapsed and the defendant then returned to the back of their property with a sapelu to do some work. There he found that the complainant had planted posts for a fence. But he noticed that the posts trespassed onto their land. He questioned the victim who just stood there holding onto a post. The complainant then said to him he knows the border “o lea oute iloa o le tuaoi lea”. The defendant told the probation office it was that remark that made him lose control and strike the victim. The strike landed on the victims left hand and severed his hand at the left wrist. The complainant ran off and retreated to safety and was subsequently taken to hospital.

The medical report from the head of the surgical unit at the hospital states that examination on arrival revealed an amputated left hand through the wrist with bone exposed. He was taken to the operating theatre the same day for closure of the wound and bleeding control. He was discharged later that week and attended to follow-up surgical visits at the hospital.

The complainant appears to have suffered a permanent loss of his left hand as I am advised no effort was made to reattach the hand. This loss as far as I can determine from the material before me has not been separately compensated by the defendant. Only the usual village fine and ifoga presentation has been attended to. The complainants victim impact report refers to how the loss of the defendants left hand has impacted on his life and activities. The complainant was a left handed person and is having to do everything with his right hand which is difficult for obvious reasons. The report also speaks of the pain and suffering the complainant had to endure as a result of the injury.

The offence of grievous bodily harm carries a 7 year maximum penalty. As stated in previous cases by this court for example in Police v Leifi [2005] WSSC 25 by the Honourable Chief Justice:

“The sentences imposed by the court have depended very much on the circumstance of each case with previous cases providing only general guidance. But one thing which can be said with confidence is that this type of case normally attracts a term of imprisonment.”

In the present matter a weapon a machete or bush knife was used by the defendant. It was used to deliver a blow which severed the complainants left hand through the wrist. The single blow was forceful enough to cut through sinew, muscle and bone. The result is a permanent incapacity to the complainant. There is no question an imprisonment sentence must be imposed to mark the seriousness of the offence. And as a deterrent sentence against such behaviour. The real question is how long a term is appropriate.

Considering the circumstances of the matter a 4½ to 5 years start point is appropriate. I will take the lower of the range and start at 4½ years. That needs to be adjusted downward to reflect the mitigating factors as referred to by your lawyer. From the start point of 54 months I will deduct one quarter of sentence or approximately 14 months for your guilty plea. From the remaining period of 40 months I will deduct a further 6 months in recognition of the fact that the complainant provoked your reaction leaving a balance of 34 months. You are a first offender I will make a further deduction of 6 months to recognize that fact leaving a balance of 28 months. The village council have done what they are required to do, I will take that into consideration by deducting a further 6 months from the 28 leaving a balance of 22 months. In recognition of the ifoga that has been carried out by you and your family I will make a further deduction of 4 months leaving a balance of 18 months. There are no further factors that need to be taken into consideration. For this matter Taavao you are convicted and sentenced to 18 months in prison.

.........................

JUSTICE NELSON