Police v Bourne [2017] WSSC 139 (14 November 2017)

SUPREME COURT OF SAMOA
Police v Bourne [2017] WSSC 139

Case name:	Police v Bourne
Citation:	[2017] WSSC 139
Decision date:	14 November 2017
Parties:	O Tagaloa for prosecution Accused in person
Hearing date(s):
File number(s):	S277/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	Convicted and sentenced to 18 months supervision. As a special condition of his term of supervision, he is to perform 100 hours of community service as directed by the probation service.
Representation:	O Tagaloa for prosecution Accused in person
Catchwords:	Armed with a dangerous weapon – causing grievous bodily harm with intent – provocation – sentencing approach –
Words and phrases:
Legislation cited:	Crimes Act 2013, s.118 (1) Police Offences Ordinance 1961, s.25
Cases cited:	Police v Wilson and Mafi [2016] WSSC 83; R v Taueki [2005] NZCA 174, Tele’a v NPO [2017] WSCA 4
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

ILI PANAPA BOURNE male of Vailele
Accused

Counsel:
O Tagaloa for prosecution
Accused in person

Sentence: 14 November 2017

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of causing grievous bodily harm with intent, contrary to s.118 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and one charge of being armed with a dangerous weapon, namely, a bushknife, contrary to s.25 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. He initially pleaded not guilty to both charges but on the date of trial he changed his plea to one of guilty after the victim had given evidence for the prosecution.

The offending

2. According to the prosecution summary of facts confirmed by the accused, the accused who is 52 years old and the victim who is 24 years old are father and son. They reside at Vailele. On 26 January 2017, when the victim returned home, he saw his younger brother removing timbers from his house. This made the victim angry and resulted in an argument and then a fight between him and his younger brother. Upon seeing the fight between his two sons, the accused approached his sons and told the victim to stop. However, the victim turned to the accused and started punching him.
3. The victim’s younger brother then intervened and tried to stop the fight between the victim and the accused. When the accused was freed, he grabbed a machete and stabbed the victim with it. The machete cut through the victim’s back and entered his internals which resulted in profuse bleeding. The accused immediately fled the scene.

The accused

4. The accused is married with five children one of whom is the victim. He is presently unemployed but stays home and look after his mother and grandchildren including the victim’s children. He had a low level of education having finished his education at primary school level. He then went with his parents to American Samoa where they spent eight years whilst his parents were employed at the Star Kist company. When they returned to Samoa, the accused had several jobs involving manual labour.
5. The pre-sentence report shows that the mother of the accused speaks well of him as a person of good character. The accused is also well supported by the character testimonials from the former Roman Catholic catechist of his village church and his village pulenu’u. The accused has a previous convictions for inciting and burglary in 2002.
6. This matter has been reconciled and settled within the family and everything is smooth again.

The victim

7. The victim impact report confirms that this matter has been reconciled and settled within the family and the victim pleads for mercy on the accused. The victim also says that his family depends on his father for looking after their family. He has also written to the Court asking for the charges against his father to be withdrawn.
8. It appears from the statements made by some of the people interviewed by the police that as a result of the injury inflicted on the victim, he was admitted at TTM hospital. But the extent of the injury is not clear and likewise the duration of the victim’s stay in the hospital.

Sentencing approach in grievous bodily harm cases

9. The leading New Zealand case on sentencing in cases of grievous bodily harm is R v Taueki [2005] NZCA 174, paras [32] – [42]. It sets out the aggravating features relating to the offending, the mitigating features relating to the offending, the aggravating features relating to the accused as offender, the mitigating features relating to the accused as offender, sentencing bands and ranges of starting points for sentence, and the need for flexibility in the case of sentencing bands and starting points, for example, in a case where there is any particular feature or combination of features. The Taueki approach to sentencing in grievous bodily harm cases was adopted in Police v Wilson and Mafi [2016] WSSC 83; Tele’a v NPO [2017] WSCA 4.

The aggravating features relating to the offending

10. I accept the submission by the prosecution that the use by the accused of a machete to stab the victim is an aggravating feature relating to the offending. But this should be seen in the context of what happened as shown from the summary of facts. The victim was fighting with his younger brother when the accused intervened and tried to stop them. The victim then turned around and started punching the accused and a fight ensued between the victim and the accused. The victim’s younger brother tried to stop this fight. When the accused was freed he grabbed a machete and stabbed the victim who immediately ran away. It is not clear from the summary of facts how the machete came to be at the scene of the fight. It also appears that there was no pre-meditation on the part of the accused when he stabbed the victim. He came on to the scene to stop the fight between his two sons. Things happened on the heat of the moment.
11. I am not satisfied that the nature of the injury inflicted on the victim was out of the usual injuries classified as “grievous bodily harm”. This is primarily because there is no medical report and consequently insufficient description of the injury in the summary of facts. As pointed out in Taueki, where the injuries are very serious, a higher starting point than in cases of minor injury will be called for. This is particularly in the case where the injuries are potentially fatal or are such as to cause long term or permanent disability impacting on the victim’s quality of life. The victim’s injury is undoubtedly serious otherwise it would not qualify as grievous bodily harm. But I am not able to say from the summary of facts whether it was potentially fatal or such as to cause long term or permanent disability impacting on the victim’s quality of life.
12. I am also not convinced that the victim was in a particularly vulnerable position because he was not armed when the accused stabbed him with the machete. Both men were fighting when the accused grabbed a knife and stabbed the victim. If the victim was in a helpless situation where he could not defend himself but the accused still stabbed him, then I would be inclined to consider that the victim was in a defenceless and vulnerable position. In Taueki, it is relevantly stated that where the victim is particularly vulnerable (for example, a child or where there is a disparity in size or strength between the attacker and the victim), then that will also be a significant factor in the assessment of culpability.

The mitigating features relating to the offending.

13. It is clear from the summary of facts that there was a high degree of provocation from the victim to the accused who is his father. When the accused came to stop the fight between the victim and his younger brother, the victim turned around and started punching the accused. A fight then ensued between the victim and the accused. In the eyes of Samoan custom, this was highly disrespectful of the victim. It was also very provocative.

The aggravating features relating to the accused as offender

14. I would not consider the accused’s previous convictions for inciting and burglary in 2002 as disqualifying him from being a person of previous good character. The previous convictions are not only quite old but they were for a different type of offence. People can change and the character testimonials on the accused show that he has not re-offended since 2002 and has been a person of good character. Not everyone who was bad in the past will necessarily continue to be so forever.

The mitigating features relating to the accused as offender

15. The following features relate to the accused as offender: previous good character; this matter has been reconciled and settled within the family, and guilty plea though late.

Plea for mercy

16. In the circumstances of this case, I have decided to take into account the accused’s plea for mercy on the accused as a mitigating circumstance for sentence.

Discussion

17. Having considered the aggravating and mitigating features relating to this unusual offending, I am of the view that the accused’s culpability is at a low level. It was the victim who started the fight with the accused who was intervening to stop the fight between the victim and his younger brother. The accused’s conduct was not only highly disrespectful of his father but it was also highly provocative. There was also no pre-meditation; the accused’s action of stabbing the victim was on the heat of the moment. This matter has also been reconciled and settled within the family and the accused continues to look after his grandchildren including the victim’s children. The victim has also pleaded for mercy on the accused. Add to all that the mitigating features relating to the accused as offender and I have decided to impose a non-custodial sentence.

Result

18. The accused is convicted and sentenced to 18 months supervision. As a special condition of his term of supervision, he is to perform 100 hours of community service as directed by the probation service.

CHIEF JUSTICE