Police v Falaniko [2018] WSSC 90 (20 June 2018)

IN THE SUPREME COURT OF SAMOA
Police v Falaniko [2018] WSSC 90

Case name:	Police v Falaniko
Citation:	[2018] WSSC 90
Decision date:	20 June 2018
Parties:	POLICE (Informant) and TAUMASINA FALANIKO, female of Levi Saleimoa & Fagamalo Savaii (Accused)
File number(s):	S634/18
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- In respect of the charge of assault contrary to section 118(1) of the Crimes Act 2013, you are accordingly convicted and sentenced to one year and six months imprisonment less anytime remanded in custody.
Representation:	L I Atoa for Prosecution Accused self represented
Catchwords:	You bite off a large part of the victim’s ear, you then chewed it and swallowed it. Permanent disfigurement of the victim
Words and phrases:	The harm suffered by the victim involving the loss of a large part of her right ear being a disfigurement that will be lifelong for her.
Legislation cited:	Crimes Act 2013
Cases cited:	Police v Luataei [2016] WSSC 171 (31 August 2016), Police v Napa [2017] WSSC 22 (12 April 2017) and Police v Amituanai [2017] WSSC 49 (22 February 2017).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

TAUMASINA FALANIKO, female of Levi Saleimoa & Fagamalo Savaii
Accused

Counsel:
L I Atoa for Prosecution
Accused self represented

Sentence: 20 June 2018

SENTENCE

The Charge:

1. Taumasina Falaniko, you appear for sentencing on one charge that at Levi Saleimoa on the 13th March 2018, with intent to cause grievous bodily harm, you caused grievous bodily harm to Vailelia Vaiala, a female also of Levi Saleiomoa.
2. You entered an early guilty plea to the charge.

The Offending:

3. According to the Summary of Facts accepted by you, you had been angry with the victim for some time arising out of disputes on the volley ball Court. Apparently, the victim would usually strike the volley ball at you.
4. On the 13th March 2018 between 5.00pm and 6.00pm, you then challenged the victim to a fight. You then fought with the victim and in the course of the altercation, you bit off the victim’s ear lobule, chewed it and then swallowed it. A photo showing the victim’s ear accepted by you as true shows a large part of the victim’s right ear missing described in the medical report dated 10th June 2018 in terms of a medical examination conducted on the 13th March 2018 as “complete laceration (-3cm by 1cm surface area) right upper external ear lobe 2 to tooth bite (type 1 wound).” Other bruises and minor injuries were noted to her face and neck.
5. In your PSR, you said that the victim had challenged you to a fight. Today, when questioned about the different between what is stated in the Summary of Facts and your Pre-Sentence report, you confirmed that on the date of this incident, it was you that challenged the victim. You also admitted to the Probation Service that you chewed her ear and then swallowed it. You were not truthful to the probation service in terms of the actions of the victim but you did accept that you started the physical altercation.

The Accused:

6. You are a 22 year old female of Levi Saleimoa. According to your Pre-Sentence Report, you are the eldest of 6 children and attended school including at Don Bosco in Savaii. Your parents separated when you were 5 years of age and you stayed with your mother. You married in 2017. Your husband seeks leniency in your sentencing.
7. You have worked on your family plantation and formerly worked for two different resorts in Savaii. You resigned your employment with the resort so that you can help your mother with her handicraft business.

The Victim:

8. The victim is a 23 year old female. She said that she continues to feel pain with her ear as the ear wounds to the date of her Victim Impact Report on the 13th June 2018 had not fully healed.
9. The victim in her Victim Impact report says that she forgives you and that there has been reconciliation and discussions with you and her as well as between the families.

Aggravating and Mitigating Features of Offending:

10. The aggravating features of your offending are:
    • An element of premeditation in your assault with your challenge to the victim because of your anger towards her;
    • The assault was an assault targeting the victim’s head;
    • The injury is a serious injury with the harm suffered by the victim involving the loss of a large part of her right ear being a disfigurement that will be lifelong for her; and
    • You swallowed that part of the ear that you bit off, an act that is particularly disturbing and which probably meant that the ear could not be sewed back.

Aggravating and Mitigating Features Personal to Offender:

11. There are no aggravating features personal to you as an offender. You are a first offender.
12. In terms of the mitigating features, I accept reconciliation and the apology rendered. This is reflected in the Victim Impact Report dated 13 June 2018. I also take on board your prior good character, the village penalty one (1) cattle beast, three (3) sows, twenty (20) boxes of tinned fish and large fine mats and your early guilty plea.
13. After conducting your Pre-Sentence interview, the Probation Service concluded that whilst you said you were remorseful, it didn’t match with your reaction or tone of voice and you didn’t appear to be genuinely remorseful. Having heard from you and what you have said, I will extend a deduction for remorse.

Discussion:

14. Falaniko, your assault on the victim was a serious assault because it has resulted in the permanent disfigurement of the victim. It was also barbaric and repugnant to community standards because not only did you bite off a large part of the victim’s ear, you then chewed it and swallowed it.
15. The prosecution seeks an imprisonment term with a start point of three (3) years. I have considered the Prosecution authorities together with other authorities including Police v Luataei [2016] WSSC 171 (31 August 2016) where a 10 month start point for sentence was adopted for an injury to the victim’s ear 1.5 inches long and involving an assault with a beer bottle. I have also considered other sentencing authorities including Police v Napa [2017] WSSC 22 (12 April 2017) and Police v Amituanai [2017] WSSC 49 (22 February 2017).
16. There is no question that an imprisonment term is warranted both as a deterrent to you and others from this type of offending but to also hold you accountable for the harm that you have caused. Having considered the authorities and the aggravating and mitigating features of your offending, I adopt a start point of 2 years and 9 months imprisonment. I deduct 9 months for your prior good character, the reconciliation and apology extended, the village penalty imposed and for your remorse leaving 2 year imprisonment. From the balance, I deduct 6 months for your early guilty plea.
    

The penalty:

17. In respect of the charge of assault contrary to section 118(1) of the Crimes Act 2013, you are accordingly convicted and sentenced to one year and six months imprisonment less anytime remanded in custody.

JUSTICE CLARKE