PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Samoa
You are here:  PacLII >> Databases >> Supreme Court of Samoa >> 2014 >> [2014] WSSC 33

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Police v Lima [2014] WSSC 33 (20 June 2014)

SUPREME COURT OF SAMOA

Police v Lima [2014] WSSC 33


Case name: Police v Muliagatele Anae Pala Brian Lima

Citation: [2014] WSSC 33

Decision date: 20 June 2014

Parties: POLICE (prosecution) and MULIAGATELE ANAE PALA BRIAN LIMA male of Letogo

Hearing date(s): 24 – 25 April 2014, 7 – 9 May 2014

File number(s):

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): JUSTICE IDA M MALOSI

On appeal from:

Order:

Representation:
L Sua-Mailo for prosecution
R Drake and M Vaai for defendant

Catchwords:

Words and phrases: causing serious bodily injury with intent, threatening words, armed with an object, throwing an object

Legislation cited:
Crimes Act 2013, s.118(1)
Police Offences Ordinance 1961, ss.4(g), 25, 26

Cases cited:
R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769

Summary of decision:


IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE

Prosecution

AND

MULIAGATELE ANAE PALA BRIAN LIMA male of Letogo

Defendant


Counsel: L Sua-Mailo for prosecution

R Drake and M Vaai for defendant

Hearing: 24 – 25 April 2014, 7 – 9 May 2014

Submissions: 28 and 29 May 2014

Judgment: 30 May 2014

Reasons: 19 June 2014

Sentence: 20 June 2014

Charges: Causing Serious Bodily Injury with Intent (2), Using Threatening Words (1), Armed with an Object (1), Throwing an Object (1)


ORAL SENTENCE OF MALOSI J

Charges

  1. Muliagatele Anae Brian Lima, you appear for sentencing today on 5 charges, having been found guilty of those on 30 May 2014 following trial.
  2. With the greatest of respect, I acknowledge the huge number of supporters who have come to Court today and the silent prayers of those who cannot be with you. I particularly acknowledge the presence of Lemalu Sina Retzlaff and Brian Junior Lima, an incredibly brave young man who has stood to address the Court through his mother, stood tall and proud on behalf of his brothers, on behalf of his mother and on behalf of you. I appreciate this is a very difficult day for all of you.
  3. Your charges are as follows:

Each of those charges carries a maximum penalty of 10 years imprisonment.

(iii) Using threatening words – section 4 (g) of the Police Offences Ordinance 1961, which carries a maximum penalty of 3 months imprisonment or a fine of 2 penalty units;
(iv) Being armed with an object, namely a bottle – section 25 Police Offences Ordinance; and finally
(v) Throwing an object to the danger of a person – section 26 Police Offences Ordinance.

Those two last charges each carry a maximum penalty of 1 year imprisonment.

The offending

  1. The offending arises out of an incident which occurred outside the Y-Not Bar at Matautu-uta not long after midnight on Friday, 13 December 2013. I found that after your Saint Joseph’s Class of 1988 fundraising meeting you drove past Y-Not because you knew from your children that Lemalu was seeing someone, knew she was a regular there and wanted to see if she and Sialofi were there. I also found that when you saw her car parked directly outside Y-Not you deliberately parked your car away from hers and waited until she and Sialofi were about to drive off before approaching them.
  2. The conversation which ensued started out friendly enough but quickly turned nasty when you moved onto dangerous territory, ie talking about her relationship with Sialofi (which at that point was only 2 – 3 weeks in) and your children. It reached a low point when you asked her whether she was fucking him on your bed.
  3. While Sialofi and Lemalu were still in the car, you punched him in the face first and then her. She got out and screamed for help. Two Security Guards came to her aid. A struggle followed between you and Sialofi before he too was able to get out. By then you had approached Lemalu who was standing on the passenger side of the car with blood pouring out of her nose. I did not accept that you had been aiming to punch Sialofi and hit her accidentally. I found that for the second time you punched her deliberately. That time it was with such force that she fell to the ground and probably lost consciousness, although she was not certain about that. When she picked herself up she got into her car but as she was reversing you reached in and grabbed her around the scruff of her neck. She managed to get away however, stopped to pick up Sialofi and then they made their way across the Vaisigano Bridge. In what was yet another serious lapse of judgment on your part you went after them in your car, causing her to do a U-Turn in reverse just outside Aggie Grey’s Hotel and seek refuge from family in Vini-fou.
  4. Between Lemalu getting up off the ground and driving off, I found that you also used threatening words to the effect that people would die if they touched you again, and threw a bottle at Sialofi, hitting him and one of the Security Guards.

Victims views

  1. Victim Impact Reports have been received from both Lemalu and Sialofi.
  2. So far as he is concerned I acknowledge that while he is a victim of your offending as well, for obvious reasons the focus throughout this trial, and indeed at this sentencing, has been on Lemalu and your children. He describes the experience of the incident and the following media attention as surreal. He says he has tried his best to rise above the negative comments about him and his role on that night. In terms of his physical injuries he sustained lacerations to his nose and head which required stitches. Although one of the Doctors, Dr. Leavai, was of the view that he also sustained a fracture to his nose, I cannot be sure of that. He certainly did not require any follow up regarding any fracture to his nose. As a father himself, Sialofi says he feels for your children and hopes he can be there to help them in difficult times, and to be their friend in this time of need. Importantly, he says he has forgiven you and did so a long time ago. He sees what happened “as a flaw in judgment”. Although you have not apologized to him personally, he has accepted your apology as conveyed to him through Lemalu.
  3. Lemalu’s views in respect of sentencing are contained in her Victim Impact Report and also the Probation Report. She has reaffirmed those views in her oral submission to the Court this afternoon. I have carefully considered the intimate details contained in those reports and whether or not those should be revealed. On balance, I find it is necessary to do so in order that the outcome of your sentence be properly understood. Sentencing needs to be a transparent process.
  4. There is no doubt in my mind, and there should be no doubt in yours, that the impact of your offending on Lemalu has been huge. In terms of her physical injuries she sustained extensive bruising to her eyes and cheeks, and a cut to her nose which required stitches and has left a scar. Her left cheek is now slightly distorted, although in her mind I imagine that distortion is huge; it being a constant reminder of what happened on that night. Again, the medical evidence was at odds as to whether or not she sustained any fractures to her face, but that aside her injuries were serious and you accept that that was the case. The psychological scars remain. In her words,

“The most negative impacts, however, have not come from receiving grievous bodily injuries, or being beaten in itself, but from going through the motions of taking the 'legal process' of 'breaking the silence’ through to its completion.”

  1. She is worried about “the risk of being nothing else in society but the woman who put her children’s father in prison.” She does not think she could even continue to live in Samoa if he was sent to prison, such would be the consequences for her. She says she has cried herself to sleep every night since the verdicts at the mere thought of it. Worryingly from the Court’s point of view, she describes the mindset of people who she has come across since the incident who consider “it normal for a man to beat a woman if she deserves it (as an aside it is difficult to conceive of a situation where a woman deserves to be beaten but to return to her words) and does not conform to her wifely duties and/or certain behaviours expected of a Samoan woman.” She perceives that there has been a distinctive change in how people in our society perceive her and now look at her.
  2. All that said however, it is important to stress that her Victim Impact Report is mostly focused on the impact of sentencing on your children. The main part of her report is headed “A Desperate Plea of a Mother”. She speaks of the cost of intrusion into your children’s private lives from the fact that they are sons of a legendry Rugby Player and also happen to be grandchildren of a former Deputy Prime Minister. As Lemalu puts it, “They did not choose a public life and now have to live with the consequences of their parents’ mistakes.”
  3. They have felt the impact of your offending sharply. They have been approached by other children at school and taunted about your situation. They are bereft (and I do not consider that too emotive a description) at the prospect of you going to prison. Brian Junior (15 years old) leaves for a Rugby Scholarship in New Zealand tonight. Through Lemalu we have heard the voice of your children. They know, just as you do, that what you did was wrong. Quite properly you have apologized to them and with great mercy they tell the Court they have forgiven you wholeheartedly. I consider they have done so with the pureness and innocence of children that regrettably we lose as we grow older.
  4. For reasons which I shall return to, Lemalu believes you are truly remorseful for your actions in a way she has never seen before. Essentially, on behalf of your 3 sons she pleads for you not to be sent to prison but rather given a chance to rehabilitate through specialist counseling.

Sentencing principles

  1. In terms of the principles I must apply when sentencing you, I start my sentence by setting some parameters.
  2. This is not a Court of public opinion. This is a Court of law.
  3. This is not a private case between two or three individuals. This is a criminal case brought by the State against an individual. That means however impassioned the pleas of the victims are, they do not determine the matter. The Court must always be mindful of the public interest. This is particularly relevant in domestic violence cases where it is not unusual to hear pleas for mercy by victims at sentencing on behalf of children, and to hear about the inevitable impact on children. If the Court were to be persuaded by that on every occasion virtually no one would be sent to prison for committing domestic violence. Some cases call for imprisonment regardless of the impact on loved ones.
  4. The principles by which a Judge must be guided when sentencing are well established. They are unsurprisingly based on those shared values of our community which are, in this country, Christian values.
  5. You must be held accountable for the harm you caused to the victims and the community. Your actions must be denounced and you deterred from offending in this way again, and others deterred from following down the same path.
  6. I must have regard to the gravity of your offending, the seriousness of the offences and the attempts you have made to right your wrongs.
  7. This is an opportune time for the Court to make some comments about domestic violence generally. It is a growing concern in Samoa and has been for quite some time, but it is not unique to us. It is a worldwide phenomenon. It comes in many shapes and sizes, and just like cancer it does not discriminate. Arguably the most defining characteristic of domestic violence is systematic use of fear by control.
  8. Under the guiding hand of Chief Justice Sapolu a specialist Family Violence Court has been operating in the criminal jurisdiction of the District Court since 9 September 2013. As at March 2014, Her Honour Judge Tuala-Warren had approximately 150 cases on hand. That figure has no doubt risen since then.
  9. From the Ministry of Police, Domestic Violence Unit Database for the period of 2007 to 2012, we see damning statistics: 1,884 cases of domestic violence involving 85% male offenders. I calculate that equates to one case of domestic violence having been reported to the Police somewhere in Samoa every single day of each of those 5 years. They involve offences ranging from threatening words to grievous bodily harm.
  10. Significantly, they do not include sexual offences apart from indecent assault, or murder and manslaughter which would give a complete picture of the extent of reported domestic violence incidents in this country. The unreported incidents of course would paint a completely different picture.
  11. Whilst many people are well attuned to the psychological cost of domestic violence not nearly enough attention, in my view, is given to the financial cost which is alarming. In a 2011 report from the New Zealand Women’s Refuge, the authors noted that the hope was once Government realised the huge cost of domestic violence they might move to act more. And to act more urgently.
  12. According to that Report the estimated cost of dealing with domestic violence in New Zealand each year is NZD$8 billion. Not million; billion. That figure is said to be about the same in Australia and the United Kingdom. I am not aware if a similar kind of cost analysis had been done in Samoa, but I would be surprised if it was not proportionately the same.
  13. The point is domestic violence is costly to this country, whatever measure is used.

Positions adopted by Prosecution and Defence

  1. The Prosecution seek a term of imprisonment.
  2. On your behalf, a discharge without conviction is sought. I can say immediately there is no prospect of that. The fallback position is a community-based sentence with emphasis on rehabilitation.
  3. The Prosecution, adopting the causing injury with intent charges as the lead offences, submit a starting point of 5 years imprisonment is appropriate. That view is based on the tariff case for grievous bodily harm charges in New Zealand, R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372, (2005) 21 CRNZ 769. They place it at the bottom end of Band 2.
  4. The Prosecution also refer the Court to a number of like cases, some of which resulted in terms of imprisonment and others which did not. The difference of course comes down mostly to the varying circumstances of the offending and of the offenders.
  5. In terms of the aggravating factors put forward by the Prosecution, I accept that the following are relevant:
  6. I do not accept that being a public figure is an aggravating factor of the offence, but agree that it is a factor personal to you because a higher degree of behavior is expected from those in these privileged positions.
  7. There are no mitigating factors of the offence.
  8. In the event that you are sent to prison, I agree with the Prosecution that a starting point of 5 years would be appropriate on the causing injury with intent charges.

Mitigating factors

  1. The law requires me to take into account your personal circumstances, particularly those which are favorable to you. These are often referred to during sentencing as mitigating factors.
  2. It matters not whether you are a famous former rugby international or an unknown farmer from Savaii. Both might well have mitigating factors which are equally persuasive to the Court. I wish to dispel any suggestion that your sentencing is unduly influenced by your rugby career. Every single person who appears for sentencing is entitled to their life’s work and service to be taken into account.
  3. You are 42 years old. We know you are the father of 3 sons, who you love and cherish. You are the tenth of thirteen children in a very close knit family. Your mother passed away in 2008 and I know that was a devastating blow for all of you. I also know that your father continues to work as an Accountant and exercises like he is only 50 years old.
  4. Rugby has been your life. At just 19 years old, not much older than BJ is now, you made the Manu Samoa team for the first time and went on to represent our country at 5 consecutive Rugby World Cups, a record which I think still stands. I suspect there might be times when you tire of hearing that accolade, but it is something that belongs to all of us because for every Samoan that rises, we rise with them, and for every Samoan that falls, we fall with them, but together we rise again.
  5. In between times you played professional rugby in New Zealand, France, Wales, Japan and Ireland, which are big boots for BJ to have to fit into but it looks to me like he might just be able to do that. You have the distinction of being the only Samoan from Samoa inducted into the International Rugby Hall of Fame. After you retired in 2007 you took up coaching. I accept that as a consequence of this offending you resigned from that position.
  6. I take into account the Medical Report you have filed from Dr. Ben Matalavea who was the Team Doctor for Manu Samoa between 1996 and 2011. He confirmed that when you played you suffered concussions. Medical evidence is emerging all the time about the long term effects of high impact sports. Depression and violent behavior are but two. After NFL Linebacker Junior Seau took his own life his family donated his brain to neuroscientists for studies to be carried out to better understand this phenomenon; this connection between bangs to the head all the time and behaviours further down the track. I cannot help but wonder whether your long sporting career, which started at a time when science tells us your brain had not fully developed, is now manifesting itself in a detrimental way. I urge you to investigate this further with medical professionals and ideally one who specializes in this area.
  7. I take into account the 10 or so character references you have presented to the Court. Predictably they come from government, church, rugby and community circles.
  8. The Chairman of the Samoa Rugby Union Board, who happens to be our Prime Minister, seeks leniency on your behalf. Given the recent publicity over the last reference he gave I was surprised to see this one for you but having read it, it is completely explicable. He makes it clear, and I accept, that he does not intend in any way to interfere with the Court process, but given your unprecedented contribution to Samoa he felt compelled to support you, but not your behavior. He clearly sees you and Lemalu as children of Samoa and as the Leader of our country, showed leadership by reaching out to both of you; not just you but to Lemalu as well, in your time of crisis.
  9. Whilst I took care to read all of your references which were resoundingly glowing, the only one I wish to specifically comment on is from Reverend Elder Tavita Roma. It is an important and reassuring message from one of our most respected Church Leaders. He says:

“...The Church does not condone any form, manner or degree of violence either in theory or in practice, and whereas the Church does not condone the violation of State Laws, be that as it may, we are confident of Brian Lima’s willingness and ability to redress the harm he has done to his family, to his sporting fraternity, to his Church, to our beloved country of Samoa, and of course to himself.”

  1. He then went on to say:

“We rest assured of his determination and sincerity to prove to himself and to all of us that he is still a worthy leader and a positive role model for all the males of Samoa.”

  1. I note that you do not have any previous convictions.
  2. Significantly, I accept that your remorse is genuine and deep. Poignantly, Lemalu speaks of the meeting between the two of you facilitated by Probation after the verdicts. During that you accepted what had happened on that night and did not seek to minimize your behavior in any way. You apologized to her in a way she says you have never done before; that is you took total responsibility for your behavior. You even admitted you acted in the way that you did because you still love her and found it difficult to see her with another man. I suspect that is difficult for your family to hear, but for your sake I am pleased that in this process there was a safe space for you to tell her where that behavior came from. She believes, and I accept, this entire Court process and particularly the findings of guilt have made you realize, for the first time, your actions towards her were unacceptable.
  3. Your hero status within in our country and beyond, and within your own family I suspect, has protected you in a way that has been unhelpful to you because the truth has not been revealed to you.
  4. Those around you, who are all here today in support of you, I pass no judgment on them. I know they love you just as the sun will rise tomorrow, but domestic violence has a voice. It took your 15 year old son, grandson, nephew, friend to stand up in front of the world and speak the truth to his father. I hope that his courage will be an example to all of your family.
  5. Taking all of those mitigating factors into account I consider a reduction of 1½ years would be appropriate off the 5 year starting point which is significant given that you did not plead guilty to the charges but appropriate in my view in light of the service you have given to the country.

The balancing act

  1. Muliagatele, I am required to take into account the Community Justice Act 2008. In relation to the Community Based Sentencing part of it, the purpose is to provide the Court with a range of sentencing options and means of dealing with offenders other than by imprisonment.
  2. Indeed, where an offender is convicted of an offence punishable by imprisonment, the Court when considering the sentence it should impose, must have (not may have, must have) regard to the desirability of keeping offenders in the community so far as that is practicable and consistent with the safety of the community.
  3. Probation recommends two years supervision with a special condition to attend an Anger Management Programme to address your “violent outbursts” as they describe it. They also see it as an opportunity for you to contribute through the use of your profile to raise awareness about domestic violence.
  4. Muliagatele, it will not surprise you to know that this sentencing has caused me some angst. This was serious offending, appalling behavior by a much loved son of Samoa against a much loved daughter of Samoa. Appalling behavior towards the woman who gave your life meaning in the form of your children. Appalling behavior because you know better, but chose to act like some kind of primal animal marking out his territory.
  5. Lemalu is not your possession. She never was. She was your wife. She remains connected to you however through your children. No one can ever change that, not even the two of you.
  6. I do not consider you have ever had the help you needed to transition from rugby into the real world. You certainly never had any professional help to assist you in grieving for the loss of that career and then your marriage.
  7. I remind myself that except where a term of imprison is mandatory, and it is not in relation to any of your charges, s5 of the Community Justice Act 2008 dictates that the first consideration must be a community-based sentence “so far as that is practicable and consistent with the safety of the community.”
  8. I accept this Court case has been a huge wake up call for you. I do not consider you to be a risk to the community and find that any ongoing risk to Lemalu could be appropriately managed short of imprisonment. She does, after all, have a Protection Order as a result of this offending.
  9. Having regard to all of the circumstances of your case, your otherwise exemplary service to our country, the views of both victims and particularly the impact of a term of imprisonment on your children, I have decided not to send you to prison – but there is a catch.
  10. The sentence I am about to impose, in my view, will not be easy but it will hold you sufficiently accountable and just as importantly give you the tools to change.
  11. I am persuaded that this is a just outcome for you, for Lemalu, for Sialofi, for society and mostly for your children.

Sentence

  1. Muliagatele Anae Brian Lima, on the Threatening Words charge you are convicted and discharged.
  2. On the two charges of Causing Injury with Intent to Lemalu Sina Retzlaff and Sialofi Fuatogi respectively, one charge of Being Armed with an Object and one charge of Throwing an Object, you are convicted and sentenced to 2 years supervision with standard conditions.
  3. Section 16 of the Community Justice Act enables the Court to impose special conditions related to the rehabilitation or reintegration of an offender as the Court thinks necessary. That gives very broad scope to be creative and there is no doubt that this is a case which calls for creativity in order to rationale a community based sentence.
  4. Accordingly, in order to impose the highest level of accountability possible I impose the following special conditions:
  5. Although I am a little concerned in your particular case about whether or not, at this point, we are able to offer you the type of programmes that might be needed, unusually this might be a case where Lemalu herself is able to offer some solutions through her international networks in domestic violence.
  6. I do not intend this sentence to be a soft option. I have every confidence in Probation based on what I know of their work in the Family Violence Court, but it may be that some push is needed to ensure that high end programmes are available in this particular circumstance.
  7. To ensure we are on track I direct that no later than 5.00pm, 4 July 2014, Probation provide me with a copy of the proposed rehabilitation plan for you.
  8. Although there has been some suggestion that you use your profile to raise awareness of domestic violence, can I caution everyone against that at this point. I consider that would be most unwise during the period that you are serving your sentence. Your focus should be on you. With respect, you should focus on claiming your own life back and come to understand your own behavior before trying to help people with theirs. You have given your life to rugby. You have given your life to this country. No one will criticize you for wanting to take your life back, perhaps back to the time when you were 19 years old and did not bear the weight of the country on your shoulders.
  9. This sentence is your opportunity to prove you are serious about continuing to accept responsibility for your offending, and to never put yourself and your loved ones in this nightmarish position again.
  10. I leave you all with these words – I wish I could say they were mine but they have to be attributed to the late, great Dr. Maya Angelou:

“Love is that condition in the human spirit so profound it allows us to forgive.”

  1. Muliagatele, I pray for many things and many people involved in your case but most of all I pray that you will be able to forgive yourself in the divine way that Lemalu and your children have forgiven you.
  2. To Lemalu and your children, I salute you for giving voice to the voiceless; for reminding us domestic violence is a crime; for reminding the Court that even for serious offending mercy is a cornerstone of justice, and for reminding Muliagatele that even a great legend like him is capable for making really serious mistakes, but equally capable of rising from the ashes.
  3. Mr. Lima, please stand and step out of the dock - that is not where you belong today. BJ, stand next to your father. I want to see how tall you are. Muliagatele, when you are all grown up, I hope you will be like your boy. You may have done some things wrong in your life, but it looks to me like – Lemalu, can you stand on the other side of your boy so I can see you – I am not wanting to paint a happy family picture here but I really do want to see all of you.
  4. The two of you may have got some things wrong in your relationship; the two of you might very well have lots of regrets about your relationship, but I know with every bone in my body BJ, there is nothing they regret about you and your two brothers.
  5. Sometimes it takes a really, really big crisis to effect change. This was your family’s really, really big crisis and over the next 2 years I am going to move heaven and earth to help Dad change. There are selfless reasons for that. It is not just for you, or for your Mum or even for him. It is for all us, because we have to believe that from these very serious things that the human spirit can triumph.
  6. I am sure it is that same spirit and drive that you are going to take with you tonight on that plane, for that Rugby Scholarship. What a bittersweet day it is for you, but at least your Dad is not going to prison; you are going off into the world, and you have all of these lessons to learn from his life journey. The next generation of Retzlaff-Lima's continues.
  7. Lemalu and Muliagatele, to your families, I say this with the greatest of respect; leave them alone. They deserve that. Leave them alone to feel what they want to feel; to do what they want to do with their children, and to find their own way forward wherever that path is for them.
  8. May God hear all of our silent prayers at this moment and give us all nothing but strength and determination.
  9. Counsel, I am obliged to you for your submissions, for the way in which you have all conducted yourself in the highest traditions of the Samoan bar. To Probation, it is an absolute delight to see our work within the Family Violence sphere coming to fruition. This is a case which can potentially take us to another level, and be of huge benefit to the country overall.
  10. Thank you everyone. God bless you all.


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

JUSTICE I M MALOSI

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/ws/cases/WSSC/2014/33.html