Police v Ianuari [2016] WSSC 53 (8 April 2016)

SUPREME COURT OF SAMOA
Police v Ianuari [2016] WSSC 53

Case name:	Police v Ianuari
Citation:	[2016] WSSC 53
Decision date:	8 April 2016
Parties:	Police (prosecution) and Lyndon B Johnson Ianuari, male of Leone (defendant)
Hearing date(s):	-
File number(s):	S860/15, S864/15, S865/15, S868/15, S1197/15, S861/15, S862/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Vaai
On appeal from:	-
Order:	For all these offences the defendant is convicted and placed on probation for two years on the following conditions: (i) He will live and work as directed by the Probation Service. (ii) He will continue to attend current remedial and educational programmes under the supervision of the Probation Service. (iii) He will attend any other programme, or community project as directed by the Probation Services.
Representation:	L Su’a-Mailo for prosecution A Faasau for defendant
Catchwords:	Grievous bodily harm – intentional damage – using firearm – armed with a dangerous weapon – insulting words
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

LYNDON B JOHNSON IANUARI male of Leone
Defendant

Counsel:
L Su’a-Mailo for prosecution
A Faasau for defendant

Sentence: 8 April 2016

S E N T E N C E

1. The defendant pleaded guilty to:
   • (a) two counts of intending to cause grievous bodily to two victims and did wound or caused grievous bodily harm to those two victims.
   • (b) one count of attempted grievous bodily harm;
   • (c) one count of intentional damage;
   • (d) one count of using firearm in the commission of a crime;
   • (e) one count of being armed with a dangerous weapon, and
   • (f) one count of insulting words.
     
2. All the charges arose from an incident at Matautu tai on the night of Saturday 15^th February 2015. Mr and Mrs Lome were working late at their sewing shop together with one of their relative Lemi Maiava. The accused, who had been drinking, walked past the shop on his way home. He was noisy and swearing. Lemi Maiava and a friend, Tapelu, were at the time standing in front of the sewing shop talking when the defendant swore at them and challenged them to a fight.

A fight ensued between the defendant and Tapelu but was promptly stopped by the defendant’s older brother who arrived at the scene and led the defendant home.

3. About half an hour later the defendant returned to the sewing shop with a loaded 12 gauge shot gun. He fired two shots in the air which Mr and Mrs Lome heard from the back room of their shop. When Mrs Lome walked to the front to look, the defendant was standing outside the shop glass door with the gun. He called to Mrs Lome if she was one of them. Mrs Lome turned, ran to the back room and warned the others about the armed defendant. The defendant took aim and fired a shot through the glass door Mr Lome and his relative Lemi were injured by some of their gunshot pellets. The defendant’s older brother again appeared, took the gun and led the defendant home.
4. Both Mr Lome and Lemi were taken to the hospital the same evening. On examination Mr Lome had:
   • “5 bullets wounds less than a millimeter suggestive of a gunshot pellet. One on the left jugular area of the neck, the other on the left elbow, and the other on the left lower quadrant of the abdomen and 2 on the left lateral knee. The 5 bullet wound was superficial with no active bleeding noted.

5. Both Mr Lome and Lemi were subsequently discharged. No medical report was submitted for Lemi, an indication that his injuries, if any, were insignificant.

Submissions by the Prosecution

6. For the two offences of intending to cause grievous bodily harm the prosecution at paragraph 20 of its submissions contended:
   • “that taking the totality principles and upon the facts and circumstances of this case, and the features which increase the seriousness of the offending as guided by in Taueki, as well as having the objective of consistency in sentencing approaches for this type of offending at hand, it is respectfully submitted that a starting point of five (5) years imprisonment be adopted for charges of grievous bodily harm.”
     
7. The aggravating features which the prosecution submitted exacerbated the seriousness of the offending are:
   • (a) the attack by the defendant was premeditated and was unprovoked
   • (b) a very dangerous weapon was used
   • (c) serious injuries were inflicted on the two victims, and substantial damage to property was caused.
8. For the attempted grievous bodily harm a custodial sentence of 2 years is suggested. Lesser penalties are sought for the remaining charges.

Submissions by defence counsel

9. Given the history of this 22 year old since his childhood, together with the rehabilitative measures undertaken since his offending, counsel for the defendant urged the court that the positive responses by the defendant should be encouraged so that rehabilitation should be prioritized in the sentence process without ignoring at the same the deterrence aspect. Custodial sentence is not the appropriate sentence.

The defendant

10. From the presentence report and the report from the Samoa Victims Support Group, this defendant was raised up in American Samoa and taken to the United States. He has a scar on his cheek, a living reminder of the violent upbringing in the hands of his aunt in the United States. He returned to American Samoa but the home environment of his uncle and aunty in American Samoa was virtually the same as in the United States. He finally returned to Samoa to be with his father and family.
11. He told the Probation Service the reason for his offending was that: he was provoked and he wanted to prove that he can retaliate and that he was not a coward by getting the shot gun.”
12. Since his offending, the defendant’s older brother invited the defendant to attend the Apia Harvest Centre Church services. As from June 2015 the defendant has regularly attended and engaged in the activities of the church.

Pastor Fa’afetai Fata, a recognised and well respected spiritual leader in the community, together with his wife are doing counseling sessions with the defendant. In his written testimonial pastor Fa’afetai said:

“And I can testify that I perceive a potential in this young man’s life as I find out he is an artistic person. He shared with me one time of his desire to go further with his passion and a willingness to help his family now. As a pastor I am overwhelmed to see some good changes in Lyndon’s life. And I come to believe that through it all in what he underwent, he learnt to become a better person.”

13. The defendant has also attended the Leulumoega Fou School of Fine Arts in the second semester of 2015. He successfully completed 2015 and enrolled for 2016. His Fine Art School principal speaks very commendably of him. In his written testimonial the principal described the defendant as an exceptionally skilful and creative art student; Lyndon was chosen with other students to undertaken art work at the Tanoa Tusitala Hotel and the South Pacific Regional Environment Program; Lyndon’s work has been picked for display. The principal concluded:
    • “I am very proud of Lyndon as a young student and I know that he has a bright future in art and I look forward to Lyndon representing Samoa in art competition such as that which our school has participated in and won in Taiwan and other Pacific Countries.”
14. The defendants Counsellor, Hickling, of the Samoa Victims Support Group in her written testimonial advised the court that the defendant commenced weekly counseling on anger management every Thursday since the 9^th February 2016 and has attended Mens Advocacy twice a week. His punctual attendance and ability to participate in the program has been admirable.
15. There are many others including his family members who have taken the trouble to submit testimonials and pleas of leniency for the defendant.

Reconciliation

16. The probation service has obtained from Mr and Mrs Lome confirmation that the defendant has personally apologised. Compensation of $3,800 was also paid by the defendant’s family and accepted by Mr and Mrs Lome. Mr Lome’s medical bills were also met by the defendant’s family. Through the probation service, Mr and Mrs Lome seek the indulgency of the court for the defendant.

Discussion

17. Resorting to violence when one is angry is a conduct which must be met by severe and stern penalty to reflect denunciation by society and to act as deterrence. Use of firearm exacerbate the offending particularly when serious injuries or loss of life is occasioned.
18. The attack by the defendant with the shot gun was not provoked. It was premeditated. He walked some distance from his home with the loaded gun. He had time to reflect and rethink on his impending criminal act. Instead of retreating he decided to give his anger full vent. Fortunately no one was seriously injured, and fortunately also for the defendant as he would have faced more serious charges. Intoxication may be the reason for the defendant’s conduct, but it is neither a defence in law nor a mitigating factor for sentencing purposes.
19. The circumstances of the offending would normally lead the court to consider a custodial sentence particularly when 10 years imprisonment is provided as the maximum penalty for the grievous bodily harm charge. But the court cannot ignore other significant factors which it must consider to determine the appropriate penalty.
20. It cannot be ignored that this defendant had an unfortunate life as a child which was neither his choice or within his control. Undoubtedly he suffered physical and emotional trauma. It is a wonder that he has managed his journey through life for 22 years free of any crisis. This crisis, however serious, and deserving of a much severe penalty has placed this defendant in the arms of those who are prepared to give him the support, love and care and to advance the inherent knowledge and skills he possesses.
21. To ignore the recommendations by Pastor Fa’afetai, Principal Liufau, Counsellor Hickling and the Probation Service is to turn a blind eye to good sense and good logic. It will also tantamount to ignoring the spirit of the Community Justice 2008.
22. A community based sentence is the most appropriate in the circumstances to allow this defendant to receive the support and guidance he is currently experiencing, and providing also at the same some form of deterrence.
23. For all these offences the defendant is convicted and placed on probation for two years on the following conditions:
    • (i) He will live and work as directed by the Probation Service.
    • (ii) He will continue to attend current remedial and educational programmes under the supervision of the Probation Service.
    • (iii) He will attend any other programme, or community project as directed by the Probation Services.

JUSTICE VAAI