Police v Aigaalii [2015] WSSC 13 (3 March 2015)

SUPREME COURT OF SAMOA
Police v Aigaalii [2015] WSSC 13

Case name:	Police v Aigaalii
Citation:	[2015] WSSC 13
Decision date:	3 March 2015
Parties:	POLICE (prosecution) v AEMALO MISIPUSI AIGAALII (accused ) male of Tuvao Moataa.
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and fined $600 payable in 7 days in default 6 months imprisonment.
Representation:	L Su’a-Mailo for prosecution D Roma for accused
Catchwords:	attempted murder - serious bodily harm with intent- armed with a dangerous weapon – maximum penalty – aggravating features – use of a knife – injuries to the victim – knife stabs- provocation – mitigating features – previous good character – apology by the accused’s family – reconciliation with victim – guilty - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.104 s.118(1) Police Offences Ordinance 1961s.25
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND

AEMALO MISIPUSI AIGAALII male of Tuvao, Moataa.
Accused

Counsel:
L Su’a-Mailo for prosecution
D Roma for accused

Sentence: 3 March 2015

S E N T E N C E

The charges

1. The accused Aemalo Misipusi Aigaalii was charged with: (a) one charge of attempted murder, contrary to s.104 of the Crimes Act 2013, which carries a maximum penalty of life imprisonment, (b) one charge of causing serious bodily harm with intent, contrary to s.118(1) of the Act, which carries a maximum penalty of 10 years imprisonment, and (c) one charge of being armed with a dangerous weapon, contrary to s.25 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment.
2. When this matter was called for mention on 15 September 2014, the accused pleaded not guilty to all charges. It was then adjourned for hearing to the week commencing on 2 February 2015. However, at the callover on 29 January 2015, defence counsel informed the Court that there was likely to be a change of plea to guilty. When the matter was later called for hearing on 2 February 2015, the prosecution withdrew the charge of attempted murder and the accused vacated his plea of not guilty to the charges of causing grievous bodily with intent and being armed with a dangerous weapon and entered a guilty plea. It would appear that the reason for the accused entering his initial plea of not guilty was because of the charge of attempted murder which was subsequently withdrawn.

The offending

3. On Friday evening 1 August 2014, the victim was walking back home after meeting with his estranged wife regarding his children. He came across the accused whose taxi was parked in front of Greg’s store at Tamaligi. Upon seeing the accused seated inside his taxi in the driver’s seat, the victim approached him and confronted him regarding his extra-marital affair with his wife. The victim and the accused then engaged in a heated exchange of words. The accused then told the victim, who was standing outside the car, to go and report his grievance to the police.
4. In the course of this heated exchange of words, the victim punched the accused three times in the mouth while the accused was still seated in his taxi. Several people were standing by watching what was happening. The accused then picked up the small kitchen knife which he kept in the glove box inside his taxi for opening cans of herrings with his fellow taxi drivers at their taxi stand when they have lunch. He then came out of the taxi and started stabbing at the victim. Some of the stabs missed the victim who was trying to fend off the accused but three of the stabs landed on the victim’s upper body. The accused then left in his taxi.
5. A bystander, who was watching what happened, took the victim to the hospital where the victim was examined by a doctor. The doctor noted the following injuries on the victim: (a) two lacerated stab wounds approximately 2.5cm and 3cm in length on the left shoulder, and (b) one wound on the left side of the chest approximately 2cm in length. The victim was later taken to the surgical ward of the hospital where it was found that there was a decrease of air entering the left middle to lower zones with slight reduction in chest expansion suggestive of pneumothorax or the presence of air at the covering of the lungs and of the inner surface of the chest wall. The victim was given antibiotics and underwent chest drain. He was admitted to the hospital for a whole month.
6. Apart from punching the accused while seated in his taxi, the accused told the probation service that the victim had also verbally insulted him in a public place which embarrassed him. He said that he was inside his taxi waiting for a passenger who was doing some shopping inside Greg’s store when the victim came and verbally insulted him and started punching him. He also admitted to the probation service that he had an affair with the victim’s estranged wife but she had told him that she was divorced from the victim.

The accused

7. The accused is 46 years old and a taxidriver. As shown from the pre-sentence report, he had worked in three different construction companies for a number of years until 2009 when he bought two taxis. He has been a taxidriver up to now.
8. The pre-sentence report also shows that the matais of the family of the accused have apologised to the victim and his family and presented $200 cash, two boxes of cracker biscuits, one box of chicken legs, one large bag of rice, and two boxes of noodles. It is reasonable to infer that the accused must have provided for that presentation or made a substantial contribution to it. The apology was accepted and there has been a reconciliation.
9. The accused has a previous conviction in 1990 in the District Court for causing actual bodily harm. Given the age of that conviction, I will not consider it as a factor against the accused for present purposes. The testimonials from the accused’s wife, the bishop of his church, and the pulenuu of his village all show that the accused had been a person of good character.
10. The accused has also expressed remorse to the probation service and to the Court. He accepts that he over reacted to the victim and used excessive force.

The victim

11. The victim impact report shows that the victim is 45 years of age and is a carpenter. As a result of this incident, he was admitted to the hospital for a whole month. He used the $200 received from the apology by the accused’s family in part-payment of his medical bill of $460. After he was discharged from the hospital, he continued to attend the hospital for check-ups.
12. The victim impact report also shows that the victim told the Office of the Attorney General that there has been a positive impact for his family from this incident. His wife has now returned to him and they are now living together with their children. He had experienced great despair but is happy to have his family together again. The victim and his wife have also approached the accused and made a reconciliation regarding this matter.

The aggravating features relating to the offending

13. The aggravating features relating to this offending are as follows:

(a) Use of a knife

14. This offending involved the use of a small kitchen knife which was inside the accused’s taxi to stab the victim. The knife was kept in the glove box of the accused’s taxi to open cans of herring when the accused and his fellow taxi drivers have lunch at their taxi stand.

(b) Number of knife stabs

15. The accused stabbed the victim several times but some of the stabs missed. Only three stabs landed on the victim.

(c) Injuries to victim

16. As a result of the offending, the victim sustained two lacerated wounds on the left shoulder and one wound on the left side of the chest which seems to have affected the covering of the left lung and of the inner surface of the chest wall. As a result, the victim was admitted in the hospital for a whole month and after he was discharged had to attend to the hospital for check-ups.

Mitigating features relating to the offending

(a) Provocation

17. It was the victim who first punched the unsuspecting accused three times and verbally insulted him while the accused was seated inside his taxi waiting for a passenger who was shopping inside Greg’s store. If the victim had not confronted the accused and punched and insulted him in a public place, this incident would not have occurred.

(b) Reunion of victim and his wife

18. According to the victim impact report, one positive impact of this incident is that the victim and his wife are now living together with their children.

Mitigating features relating to the offender

(a) Apology by accused’s family

19. The family of the accused has apologised to the victim and his parents with a presentation of $200 cash and foodstuffs. It is reasonable to infer that the accused must have provided for that presentation or made a substantial contribution to it. The apology was accepted and there was a reconciliation. The money was used in part-payment of the victim’s medical expenses. It is in accordance with Samoan custom for the family of an offender to make such an apology rather than the offender himself.

(b) Previous good character

20. The accused had been a person of good character as shown from the testimonials from his wife, the bishop of his church, and the pulenuu. This is in spite of his previous conviction in 1990 for causing actual bodily harm.

(c) Reconciliation with victim and his wife

21. Since the victim has been reunited with his wife, they have approached the accused and reconciled. This matter has therefore not only been settled between the family of the victim and the family of the accused but also between the victim and his wife and the accused.

(d) Plea of guilty

22. The plea of guilty by the accused has saved the Court and the prosecution time and expense. It is also clear that the reason why the accused had initially pleaded not guilty was because the prosecution had laid a charge of attempted murder against him in addition to the charges of causing grievous bodily harm with intent and being armed with a dangerous weapon. Once the charge of attempted murder was withdrawn by the prosecution, the accused vacated his plea of not guilty to the other charges and entered a plea of guilty.

Discussion

23. After giving careful consideration to the aggravating and mitigating features relating to this matter, the accused is convicted and fined $600 payable in 7 days in default 6 months imprisonment.
    

Honourable Chief Justice Sapolu