Police v Lio [2013] WSSC 68 (20 August 2013)

SUPREME COURT OF SAMOA

Police v Lio [2013] WSSC 68

Case name: Police v Lio

Citation: [2013] WSSC 68

Decision date: 21 August 2013.
Parties:
POLICE (prosecution) and ALAPATI MAUGA TAI LIO male of Fausaga and Tiavi (accused)

Hearing date(s):

File number(s): S1498/11

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:
Representation:
L Su’a for prosecution
Accused in person

Catchwords:
Sentence, causing actual bodily harm with intent, totality principle, aggravating and mitigating factors,

Words and phrases:

Legislation cited:
Crimes Act 2013
Police Offences Ordinance 1961

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S1498/11

BETWEEN

P O L I C E

Prosecution

A N D:

ALAPATI MAUGATAI LIO male of Fausaga and Tiavi.

Accused

Counsel: L Su’a for prosecution

Accused in person

Sentence: 21 August 2013

S E N T E N C E

The charges

1. The accused Alapati Maugatai appears for sentence on one charge of causing actual bodily harm with intent under s.119 (1) of the newly enacted Crimes Act 2013 which carries a maximum penalty of 7 years imprisonment and on one count of being armed with a dangerous weapon, namely, a kitchen knife under s.25 of the Police Offences Ordinance 1961 which carries a maximum penalty of one year imprisonment. The accused pleaded guilty to both charges at the earliest opportunity.

The offending

2. According to the prosecution’s summary of facts, the accused, his wife and six children live on their plantation and vegetable garden at Tiavi. They earn $80 every Saturday when they sell the produce from their plantation and vegetables from their vegetable garden at the market. This is their only source of income.
3. Included in the accused’s six children is the victim who is his wife’s daughter from a previous union. On one afternoon between 30 June 2013 and 26 July 2013, the accused and the victim were preparing the food for their family’s evening meal. The victim was cooking the taro. However, she took somewhat too long. This made the accused impatient. He threw a kitchen knife at the victim who put up her left hand to protect herself. The kitchen knife deflected off her hand. As a result, the victim sustained a cut of about 4cm long and 2cm deep to her left tendon. This must have been around the victim’s left wrist. Blood came out of the cut and a cloth was wrapped around it.
4. The accused told the Court that the kitchen knife he threw at the victim was a small one, about the length of the palm of his hand. This is confirmed in the victim impact report which refers to the knife as a small knife.
5. As it appears from the pre-sentence report, the accused told the probation service that his action against her daughter was not pre-meditated. It was a spur of the moment reaction. When his daughter was injured he treated her injury with boiled water and salt. It must have been the accused who also wrapped the cloth around his daughter’s injury.
6. The victim, however, was not taken to a hospital. Tiavi is a long distance from any hospital. It was not until an aunt of the victim reported this matter to the Poutasi police about three weeks after it happened that the victim was taken by the police to the Poutasi district hospital on 26 July 2013. The medical report shows an old cut wound to the left tendon measuring 4cm in length and 2cm in depth.
7. The victim’s wound was treated with a saline solution, fluctux which is a semisynthetic penicillin to protect against bacteria, and panadols for mild or moderate pain.

The victim impact report

8. The victim impact report states that the victim’s wound has still not healed properly. The report does not explain why the victim’s injury has not healed properly given the medical treatment the victim has already received. This is not a case of grievous bodily harm.
9. The report also notes that the victim was very sad and she cried when she was injured. She was also angry with her father for injuring her.

The accused

10. The accused as shown from the pre-sentence report is 37 years old. As already mentioned he has a wife and six children, the eldest is the victim who is the wife’s daughter from a previous union. The accused has a small plantation and vegetable garden from which the family earns about $80 every Saturday. No doubt, the family depends on the accused on working the plantation and vegetable garden to sustain the family.
11. The accused has also apologised to the victim who has forgiven him. He has also apologised to his wife and his apology was accepted. He also expressed to the probation service feelings of sadness and disappointment that this matter happened.
12. The accused is also a first offender. His wife told the probation service that the accused is a loving father to her and their children including the victim and there had been nothing wrong in their close relationship. What had happened is out of her husband’s good character. She and her children also depend on the accused for financial support. The accused’s mother also told the probation service that the accused is a caring and loving person. He is also loyal, obedient, reliable, and trustworthy. He also neither smokes nor drinks.

The victim

13. As already mentioned, the victim is the accused’s stepdaughter being his wife’s daughter from a previous union. She is 12 years old and the eldest of the accused’s six children. She no longer goes to school but stays home and performs family chores. The impact of this offending on her has already been mentioned.
14. Since this incident was brought to the notice of the authorities, the victim has lived with the Samoa Victim Support. According to the victim impact report, she very much misses her family; evidently she would like to be re-united with her family.

The aggravating and mitigating factors

15. The only aggravating factors relating to the offending is the throwing by the accused of a small kitchen knife at the victim resulting in a cut to the victim’s left forearm and the impact of the injury on her. The only mitigating factor relating to the offending is that the accused then attended to treating the victim’s injury.
16. In relation to the offender, the mitigating factors are: (a) the accused’s remorsefulness as expressed through his apologies to his wife and the victim and what he said to the probation service, (b) the fact that the accused is a first offender and had been a person of good character prior to the commission of this offence, and (c) the accused’s guilty plea at the earliest opportunity. There is no aggravating factor personal to the accused.

The decision

17. Given the aggravating and mitigating factors relating to the offending as well as the mitigating factors personal to the accused, I have decided to impose a non-custodial sentence in this case. The starting point for sentence approach is therefore inappropriate.
18. This matter has been settled within the family. The accused has evidently regretted his action which was not pre-meditated. The accused is also needed by his wife and their young children including the victim to support the family. A custodial sentence could impact adversely on the family including the victim herself. This is not an offending of such gravity where the father must go to prison regardless of the consequences to the family including the victim. However, the accused needs some supervision and counselling so that he will always be reminded to control his temper and not to repeat what he had done to the victim.
19. On both charges against the accused he is sentenced to 12 months probation.
    

CHIEF JUSTICE

Solicitor

Attorney General’s Office, Apia, for prosecution