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Police v Tafiligia [2005] WSSC 13 (26 August 2005)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

VAINIU TAFILIGIA also known as
DENNIS TAFILIGIA, of Saanapu.
Accused

Counsel: K Koria for prosecution
Accused in person

Sentence: 26 August 2005

SENTENCE

The charge

The accused is charged under s.79 of the Crimes Ordinance 1961 with the offence of having caused grievous bodily without lawful justification which carries a maximum penalty of seven years imprisonment. To the charge the accused has pleaded guilty at the earliest opportunity.

The offending

On Saturday evening, 25 June 2005, the accused was walking along the public road at his village of Saanapu when he met two boys who are his friends. The three boys then stood on the road and talked about the rugby game that had taken place in their village earlier that day. While they were talking, the accused mentioned the victim’s name saying that it was a good thing the victim had not come to the rugby game because the victim would have made the game less enjoyable by showing off his power and strength as a professional boxer to the players. It appears that unbeknown to the accused, the victim was walking towards the area where he and his friends were talking. The victim who was drunk and holding a beer bottle in his hand heard what the accused was saying. According to what the accused told the probation services, the victim asked him and the other two boys as to why he, the victim, was the subject of their conversation. No one replied. The victim then punched the accused on the head causing the accused to fall down on the road. When the accused tried to stand up, the victim punched him again on the face and the accused fell down again. Other youths of the village came and stopped the victim from continuing to assault the accused. The accused was then taken to his home.

When the accused got to his home, he picked up a machete and returned to the road. He met up with another person who told him that the victim had just finished throwing a beer bottle at his (the accused’s) mother but missed. This made the accused more angry. When the accused met up with the victim on the road, he struck the victim with the machete aiming at his head. The victim managed to block the blow with his left arm resulting in severe injuries to his arm. The accused was about to deliver a second blow with his machete when he was stopped by the son of the village pastor.

The victim was brought to the national hospital in Apia the same night. The report by the doctor who examined the victim on arrival at the hospital shows a serious lacerated wound to the victim’s left forearm and compound fractures to the left radius and ulna.

The accused

The accused is a 22 year old male from the village of Saanapu. He is single. He has no paid job but stays at home and works on the family plantation and performs other domestic chores. He is a member of his village group of untitled men (aumaga) and church choir. The village pastor has provided a favourable testimonial which shows that the accused is an obedient, helpful, peaceful and humble person. He also attends church services on Sundays regularly. The accused’s family also depends on him for domestic chores as his older siblings have migrated overseas. It may therefore be said that the present offence is out of character.

In 2002, the accused was charged with a different kind of offence which did not involve the use of violence. He was then 19 years of age. He pleaded guilty to that offence and was sentenced to a term of probation. According to the pre-sentence report prepared by the probation service for this case, the accused responded positively to the conditions of his probation. It has therefore come as a shock to the probation service that the accused is appearing again before the Court.

In his plea in mitigation, the accused expressed remorsefulness for what he has done. He also expressed remorsefulness to the probation service. He is very worried and concerned about the outcome of this case. The family of the accused has also performed a traditional apology (ifoga) to the father of the victim and was accepted. This was confirmed to the Court by the father of the victim. The accused’s family has also presented one cattle beast, two large pigs, thirty boxes of tinned fish as well as breakfast and lunch for the village as penalty for the offence committed by the accused. All of this was accepted by the village. Thus this matter has been settled in accordance with Samoan custom not only between the family of the accused and the family of the victim but also between the family of the accused and the village. This is all part of what is now commonly referred to as ‘restorative justice’ even though for very many years it has been the customary way Samoans penalise offences committed within a village and settle any possible enmity or friction that may arise between the family of an accused and the family of a victim.

The victim

The victim is a 28 years old male. He is from the same village of Saanapu as the accused. He is a well-known professional heavyweight boxing champion. His skills, power and strength in the boxing ring are well-known. It is rather unfortunate that this incident may have affected his talent and his future career in boxing due to the serious injuries to his left arm. In the victim impact report prepared by the probation service, the victim told the probation service that he has forgiven the accused and he does not want the accused charged with any offence as it was his actions that provoked the accused.

The father of the victim also appeared in person and addressed the Court. He told the Court that he and his family have accepted the formal apology by the family of the accused. The family of the accused have also paid the penalty imposed by the village. He also told the Court that his family and the family of the accused are related. He has also forgiven the accused.

While these expressions of forgiveness by the victim and his father show magnanimity on their part, they do not exonerate the accused of responsibility for the crime he has committed.

Submissions by counsel for prosecution

Counsel for the prosecution in his submissions referred in detail to the mitigating and aggravating features of this case. He also referred to the recent case of Police v Ose Ose (2005) where after a plea of guilty by the accused to a charge of causing grievous bodily harm without lawful justification, this Court on 4 July 2005 sentenced the accused to 2 ½ years imprisonment. Counsel then submitted that a custodial sentence is still warranted in this case given the gravity of the offence.

Mitigating features

There are several mitigating features of this case. The first is the accused’s plea of guilty to the charge against him at the earliest opportunity. Secondly, the accused’s expression of remorsefulness to the Court and to the probation service. Thirdly, the formal apology made by the family of the accused to the father of the victim. Fourthly, the substantial presentation of foodstuffs made by the family of the accused to the village as the accused’s penalty for the offence committed within the village. Fifthly, the offence is out of character. I also put aside for the purpose of this case the accused’s previous conviction for quite a different kind of offence. And finally is the high degree of provocation in this case. The victim who is a professional heavyweight boxing champion had to be stopped by other youths of the village from continuing to punch and assault the accused who had twice fallen on the road from the two punches already delivered by the victim. The victim was the initial aggressor. If it was not for him, this incident would not have occurred.

Aggravating features

This is a case of a serious attack by one person on another person involving the use of a machete which is a dangerous weapon. The blow delivered by the accused was aimed at the victim’s head. If the victim had not been quick enough to block it with his left arm, the consequences for him could have been much more serious. The accused was about to deliver a second blow with the machete when he was stopped by the pastor’s son. The other aggravating feature is the seriousness of the injuries suffered by the victim as a result of the attack on him. They are likely to affect his future career as a professional boxer.

The decision

In determining what should be the appropriate sentence, I have to weigh up both the mitigating factors as well as the aggravating factors. This of course cannot be done with exactitude. I have to take an overall view and then come down to what is considered to be a just sentence. Sentences in previous cases for the same kind of offence may provide a helpful guide. But given the factual variations between different cases, the focus should primarily be on the facts of the particular case that is before the Court.

In this case, the use by the accused of a dangerous weapon such as a machete to inflict serious injuries on the victim justifies an immediate sentence of imprisonment. The mitigating factors which have been referred to earlier must then be taken into consideration, particularly the high degree of provocation from the victim, the accused’s plea of guilty at the earliest opportunity, the formal apology made by the family of the accused to the father of the victim, and the substantial penalty paid by the family of the accused to the village as an act of atonement for the accused’s offence.

The accused is convicted and sentenced to 2 years imprisonment.

CHIEF JUSTICE