Police v Tiumalu [2015] WSSC 48 (7 May 2015)

SUPREME COURT OF SAMOA
Police v Tiumalu [2015] WSSC 48

Case name:	Police v Tiumalu
Citation:	[2015] WSSC 48
Decision date:	7 May 2015
Parties:	POLICE (prosecution) v SILAO TIUMALU (accused)
Hearing date(s):
File number(s):	S2753/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- (a) On the charge of causing actual bodily harm with intent, the accused is sentenced to 18 months imprisonment. - (b) On the charge of being armed with a dangerous weapon, the accused is sentenced to 3 months imprisonment. - Both sentences to be concurrent. Any time the accused has spent in custody pending the outcome of this matter is to be further deducted from that sentence.
Representation:	O Tagaloa for prosecution Accused in person
Catchwords:	causing actual bodily harm with intent – armed with a dangerous weapon – maximum penalty – aggravating and mitigating features – vulnerability of the victim - impact of the offending – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.119 (1) Police Offences Ordinance 1961 s.25
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S2753/14

BETWEEN

P O L I C E
Prosecution

A N D

SILAO TIUMALU male of Saleaaumua.
Accused

Counsel:
O Tagaloa for prosecution
Accused in person

Sentence: 7 May 2015

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of causing actual bodily harm with intent, contrary to s.119 (1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment, and one charge of being armed with a dangerous weapon, namely, a small pocket knife, contrary to s.25 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. The accused pleaded guilty to the charge of being armed with a dangerous weapon at the earliest opportunity and not guilty to the charge of causing actual bodily harm with intent. At trial, the accused was found guilty of the charge of causing actual bodily harm with intent.

The offending

2. On 2 September 2014, the village of Saleaaumua, Aleipata, was hosting guests from the SIDS Conference that was held in Samoa. The accused and the victim were amongst the untitled men of Saleaaumua who were preparing the tafolo and faausi for the guests and serving the guests and the matais of the village. The accused at the time had with him a small pocket knife to perforate (tasu’i) the coconuts for drinking by the guests.
3. When the guests from the SIDS Conference arrived around 10am, the village of Saleaaumua had gathered in a maota, probably the laoa of Tafua, to welcome them. The father of the accused delivered the welcoming speech on behalf of the village. At that time, a cellphone rang and one of the police officers who was accompanying the guests called out to turn off the cellphone. The accused who suspected that it was the victim who had the cellphone that was ringing called out to the victim to turn off his cellphone. The victim replied that it was not him who had the cellphone that was ringing. The accused then said to the victim not to be cheeky.
4. At 2pm, the guests left Saleaaumua. The accused, the victim, and about five other untitled men of Saleaaumua who had been serving the guests bought two large bottles of vodka called Maso and took them to the cooking house (umukuka) of the victim’s aunty where they started drinking. Everything went happily and smoothly until around 7pm when they finished their vodka. All of them were intoxicated and were about to disperse. The victim then said to the accused not to call him again cheeky and the accused replied that matter was finished.
5. The accused who was sitting down then asked the victim to stand him up. The victim then held the accused’s left hand and pulled him up. When the accused stood up, the victim was taken by surprise when the accused stabbed him with a pocket knife which caused the victim to fall down. When the victim stood up, the accused stabbed him again. The victim then picked up an empty crate on which he had been sitting and struck the accused twice with it causing the accused to fall down. This resulted in lacerated injuries to the accused’s head, left eye, and one of his ears, as it appears from the prosecution’s sentencing memorandum.
6. It was not clear from the evidence whether it was the first or the second stab by the accused that wounded the victim. But it is more likely that it was the first stab because the victim was not ready for it and it was that stab that caused him to fall down.
7. The victim was shortly afterwards taken to the Lalomanu district hospital. The registered nurse who received and treated the victim at the hospital testified that she found an injury on the left side of the victim’s lower abdomen which was consistent with an injury caused by a sharp instrument such as a knife. There was much bleeding from the injury. The nurse also testified that the injury was about six centimeters (6cm) wide and five centimeters (5cm) deep and required six stitches which stopped the bleeding. In the opinion of the nurse the injury was serious. The victim was admitted in the hospital for seven days for treatment and observation.

The accused

8. As it appears from the pre-sentence report, the accused is now 39 years and was 38 years old at the time of this offending. He finished school at Year 11. He then stayed home and helped his family with their plantation and cattle farm. He now looks after his family’s plantation and cattle farm and is the main person of his family serving his father with his matai obligations in their village of Saleaumua. He also participates in the faa-taulele’a of his village.
9. The testimonial given by the sister of the accused to the probation service shows that the accused is a reliable and hardworking person. His family is very much dependent on him. The testimonial from the pastor of the accused’s church shows that the accused is an active, highly motivated, hardworking, and responsible person in the village and the church. The testimonial from the pulenuu of Saleaumua shows that the accused is a dependable member of his village and family. The pulenu’u also reports that the accused has been penalised by the village with twenty sows (aumatua) and he has paid his penalty. This matter has also been reconciled and everything is back to normal.
10. It therefore appears that the accused was a person of good character prior to the commission of this offence. The accused is also a first offender.

The victim

11. The victim is 25 years old. He said in his evidence that even though the outside of his injury has healed, he still feels pain inside especially as he is no longer taking any medication.

Aggravating features relating to the offending

(a) Use of a pocket knife

12. The use by the accused of a small pocket knife which was in his possession to stab the victim twice is an aggravating feature relating to the offending.

(b) Vulnerability of the victim

13. The victim was unarmed when he was stabbed by the accused. This was also an unexpected attack because the victim had assisted the accused to stand up when he was unexpectedly stabbed by the accused with a pocket knife.

(c) Severity of the victim’s injury

14. In the opinion of the registered nurse who examined and treated the accused at the Lalomanu district hospital, the victim’s injury was serious and required six stitches. The victim was also admitted in the hospital for seven days for treatment and observation.

(d) Impact of offending on the victim

15. The victim at times still feels pain from his injury.

Mitigating features relating to the accused as offender

(a) Previous good character

16. The accused is a first offender and the testimonials provided by the sister of the accused, the pastor of his church, and the pulenu’u of his village to the probation service show that the accused had been a person of good character prior to the commission of this offence.

(b) Penalty imposed by the village

17. The penalty of twenty sows imposed by the village on the accused and which has been paid is another mitigating feature relating to the accused as offender. This matter was also reconciled before the village and everything has been settled.

Discussion

18. Having regard to the aggravating features relating to the offending, I will take 2½ years as the starting point for sentence. I will deduct 6 months for previous good character. That leaves 2 years. I will deduct another 6 months for the penalty paid to the village. That leaves 18 months.

Result

19. (a) On the charge of causing actual bodily harm with intent, the accused is sentenced to 18 months imprisonment.
    • (b) On the charge of being armed with a dangerous weapon, the accused is sentenced to 3 months imprisonment.
20. Both sentences to be concurrent. Any time the accused has spent in custody pending the outcome of this matter is to be further deducted from that sentence.

Honourable Chief Justice