Police v Lusiluka [2018] WSSC 135 (26 October 2018)

IN THE SUPREME COURT OF SAMOA
Police v Lusiluka [2018] WSSC 135

Case name:	Police v Lusiluka
Citation:	[2018] WSSC 135
Decision date:	26 October 2018
Parties:	POLICE (Informant) and FALEVALE LUSILUKA, male of Samusu, Aleipata
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Mata Keli Tuatagaloa
On appeal from:
Order:	The accused is convicted and sentenced to 4 months’ imprisonment to be followed by 12 months’ supervision with the following conditions: (i) To abstain from taking or smoking marijuana; and (ii) To attend to regular reviews as required by the Mental Health Unit. The four (4) month imprisonment term is already served with the four (4) months that accused has been in custody since 28 June 2018.
Representation:	Lucy Sio for Prosecution Accused in Person
Catchwords:	grievous bodily harm – armed with a dangerous weapon – machete attack – mental health issues – history of marijuana use – non-custodial sentence
Words and phrases:	accused suffers from drug induced psychosis
Legislation cited:	Crimes Act 2013 s. 118(1). Police Offences Ordinance 1961 s. 25.
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

FALEVALE LUSILUKA, male of Samusu Aleipata
Accused

Counsel: Lucy Sio forProsecution
Accused in Person

Sentence: 26 October 2018

SENTENCING OF TUATAGALOA J

1. The accused appears for sentence on the charges of causing grievous bodily injury^[1] which charge carries maximum penalty of 10 years’ imprisonment; and the charge of armed with a machete, a dangerous weapon^[2] which carries a maximum penalty of 12 months’ imprisonment.
2. The victim is the brother-in-law of the accused. The summary of facts prepared by the Prosecution was read out and confirmed by the accused which basically says the following:
   • (i) On 27 June 2018 whilst the victim eating, the accused approached from behind and struck the victim on the left arm with a machete.
   • (ii) The victim ran towards his wife and family who then took him to the hospital.
   • (iii) The victim sustained a big cut wound 15 centimeters in length and 10 centimeters deep on the left posterior underarm.
   • (iv) The victim was stitched under local anesthesia and admitted for observation.
3. The pre-sentence report (PSR) prepared by Probation who interviewed the accused provided the Court with a bit more background or detailed information that is not provided in the summary of facts.
4. From the PSR it seems that the accused had repeatedly asked the victim a question before the victim answered to which the accused was not happy about. He (accused) then went outside to the back kitchen, grabbed the machete and returned to the front of the house where the victim was eating and struck at him with the machete. The accused said that he intended to use the smooth side of the machete but the victim in defence put up his hand and he was somehow hit by the sharp end of the machete.
5. The pre-sentence report put the Court on notice with the possibility of the defendant having a mental illness or mental health condition. The Court was also concerned of how this would have impacted on his ability to fully comprehend the seriousness of his actions and how this would have contributed to the accused having pleaded guilty; the seriousness of his mental condition; and whether he is on medication or some sort of treatment.
6. From the file notes, this matter has had various adjournments for sentencing since 01 October 2018 for the Court to address the issue as to the accused mental health condition.
7. In the course of the adjournments, the Probation further informed the Court that the accused had appeared in 2017 before the District Court on a charge of assault, to which the issue of his mental state was also raised. Ms. Julilly Ah Hao of Probation Services provided a record of the District Court which confirms that the accused had appeared in the District Court in 2017 and also confirms that a mental health assessment was obtained from Dr. George Tuitama of the accused to which Judge Roma of the District Court then ruled the accused to be unfit to plea.
8. The accused having appeared in the District Court in June 2017 and then again a year later but this time a more serious offence put the Court on alert that the accused offending is escalating.
9. The accused mother when asked whether the accused was under medication for treatment by the Mental Health Unit told the court that the accused only received medication after the District Court matter was dismissed and he never came back to the hospital for a follow up.
10. Dr. Tuitama in his report assessed the accused to have suffered from: (i) drug induced psychosis; (ii) impulse control disorder; and (iii) has borderline intellectual functioning. The assessment as summarized is that the accused has a very low I.Q.
11. The accused understands why he is held in custody because of his offending
12. The Court is of the view from conversations with the accused in Court as to what he did (offending), why he did what he did and his connection to the victim indicates the accused knew what he did is wrong. He understood why he was being held in custody. He apologized to the Court and told the Court that he would like to go home and spend time with his mother. Dr. Tuitama in his report says that the accused showed remorse and expressed sadness. This all go to show that the accused knows what he did was wrong and by being able to plead guilty shows the Court that the accused owning up to what he did.
13. Dr. Tuitama provided further information as requested by the Court through Prosecution that the accused would need regular reviews by the Mental Health Unit because he suffers from drug induced psychosis. That ongoing treatment for the accused will be on a need-to-have basis depending on his regular reviews. Dr Tuitama is of the opinion that whatever mental state the accused has can be treated.
14. Dr. Tuitama also provided that ongoing care for the accused can be provided at home subject to the accused being compliant to (i) his regular reviews which would require his attending to the Mental Health Unit in Apia; and (ii) abstinence from cannabis as that is what caused his current psychosis; or any other mind altering substance.
15. I have explained all this to the accused mother who was present in Court in order for her to understand what needs to be done to get her son (accused) well not only for the family’s safety, but also the public and for the sake of the accused as well. The mother admitted that it was her fault the first time in 2017 for not getting her son to follow up on his treatment or medication from the hospital but she need not be. Dr. Tuitama said that the accused in 2017 only needed a one off treatment and most importantly to abstain from any further use of marijuana. This is what the family needs to monitor at home is to make sure that the accused does not smoke any more marijuana or take any other mind altering substance.
16. The question is what would be most appropriate to take or do in order to make sure the accused gets the treatment necessary for his condition? It is my view that the sooner the accused gets treated and receives treatment on an ongoing basis as required would mean that the chance of the accused re-offending in the future will be very slim. The accused will no doubt benefit from ongoing treatments.
17. The Prosecution has not amended or filed supplementary submissions on their memorandum of sentencing given the revelation of the accused mental state. The Prosecution advocated for a custodial sentence with a four year starting point and are still of the view regardless of Dr. George Tuitama’s report following the assessment of the accused that he was unfit to plea, that the accused understood exactly what he did and was fit to plea, therefore should be sentenced accordingly.
18. Although the accused understood what he did was wrong, I cannot, rule out what Dr. Tuitama says in his report after mentally assessing the accused that he does suffer from a drug induced psychosis and that he would benefit from regular reviews and ongoing treatment if needed.
19. I therefore do not think that a custodial sentence or being in prison is appropriate to achieve the treatments and the monitoring or regular reviews required of the accused. The Mental Health Unit do not keep any mental health patients they only bring them in for treatment and then release them to the community. The prison environment is in my view not conducive to accused persons with mental health conditions. In the circumstances of the accused, the most appropriate avenue is to release Falevale Lusiluka to his home environment to attend to his regular reviews and treatment if needed.
20. A non-custodial sentence of supervision with specific conditions is ideal to make sure that he complies with Dr. Tuitama’s assessment and recommendation. I therefore sentenced the accused as follow:
21. The accused is convicted and sentenced to 4 months’ imprisonment to be followed by 12 months’ supervision with the following conditions:
    • (i) To abstain from taking or smoking marijuana; and
    • (ii) To attend to regular reviews as required by the Mental Health Unit.
22. The four (4) month imprisonment term is already served with the four (4) months that accused has been in custody since 28 June 2018.
23. The Probation Services assistance is required as part of their monitoring role of the accused supervision conditions to find out how regular reviews are carried out – how often, the times and to let the accused and/or his family know. Probation must also make sure to regularly follow up that the accused is complying with the conditions. The family of the accused is also urged and encouraged to monitor the accused in making sure that he does not do or smoke marijuana so as to avoid him suffering from drug induced psychosis and most importantly the safety of their family and the wider community from anymore offending by the accused.
    

JUSTICE TUATAGALOA

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^[1]Crimes Act 2013, 118(1).
^[2]Police Offences Ordinance 1961, 25.