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Police v Lameko [2014] WSSC 12 (21 February 2014)

SUPREME COURT OF SAMOA

Police v Lameko [2014] WSSC 12

Case name: Police v Lameko

Citation: [2014] WSSC 12

Decision date: 21 February 2014

Parties: POLICE (prosecution) and SEMI LAMEKO male of Lepale, Fasitoo-uta.

Hearing date(s):

File number(s): S725/13, S726/13, S727/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:
Representation:
L Su’a-Mailo for prosecution
S Leung Wai for accused

Catchwords:
Sentence, attempted murder pursuant , charge of with intent to cause grievous bodily harm, did cause grievous bodily harm, aggravating and mitigating features

Words and phrases:

Legislation cited:
Crimes Act 2013 s.118 (1),s.119 (1),
Police Offences Ordinance s.4 (g)
A Crim R 45 (CA).

Cases cited:
J J C (a minor) v Eisenhower [1983] 3 A11 E R 230
Police v TJ Niko [2013] WSSC 65
R v Devine [1982]
R v Scott [2007] NZCA 589
R v Waters [1979] NZCA 24; [1979] 1 NZLR 375

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE NO: S725/13, S726/13, S727/13

BETWEEN:

P O L I C E

Prosecution

A N D

SEMI LAMEKO male of Lepale Fasito’o-uta.

Accused

Counsel: L Su’a-Mailo for prosecution

S Leung Wai for accused

Sentence: 21 February 2014

S E N T E N C E
The charges

1. The accused was originally charged with one charge of attempted murder pursuant to s.104 of the Crimes Act 2013, one charge of with intent to cause grievous bodily harm did cause grievous bodily harm to the victim pursuant to s.118 (1) of the Act, one charge of with intent to cause grievous bodily harm did wound the victim pursuant to the same s.118 (1), one charge of with intent to cause actual bodily harm did cause actual bodily harm to the victim pursuant to s.119 (1), one charge of assault pursuant to s.123, and one charge of using threatening words pursuant to s.4 (g) of the Police Offences Ordinance 1961.
2. Because the offence of attempted murder carries a maximum penalty of life imprisonment, the case was to be tried before assessors. That being so, I have to say that the way the prosecution had brought this case to Court by filing so many different charges with two of them under the same provision, namely, s..118 (1) of the Act should not be encouraged. Presumably, the principal charge is attempted murder and the charges of with intent to cause grievous bodily harm did cause grievous bodily to the victim, with intent to cause grievous harm did wound the victim, with intent to cause actual bodily harm did cause actual bodily harm to the victim, and of assault were filed as alternative charges to the charge of attempted murder. I have to say that the prosecution should have tried to simplify the way it presented its case given that this case was to be a trial before assessors.
3. Fortunately, counsel for the prosecution on the day of trial quite responsibly withdrew the charges of attempted murder, with intent to cause grievous bodily harm did cause grievous bodily harm to the victim, and assault. This helped to simplify matters. As a result, the accused vacated his not guilty plea to the remaining charges and substituted it with a plea of guilty.
4. Two of the remaining charges, namely, with intent to cause grievous bodily did wound the victim and with intent to cause actual bodily harm did cause actual bodily harm t o the victim evidently require proof of a specific intent. The threatening words alleged to have been used by the accused, namely, “E ke koe masae mai loa, ou faga lou guku ile faga. E ke vaai iai o lea ole a ou alu e aumai le faga e kafaga ai oukou”. (If you open your mouth again, I will shoot your mouth with a gun. You’ll see that I am going to get a gun to shoot all of you), could have been used as evidence to show that the accused had the specific intent to cause grievous bodily harm or at least the intent to cause actual bodily harm.
5. In relation to the offence of with intent to cause grievous bodily harm did wound the victim, the meaning of the word “wound” is explained in Adams on Criminal Law (1992) vol 1, CA 188.08.09, where the learned authors state:

“A wound is a break in the continuity of the skin:

“A breaking of the skin would be commonly regarded as characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and, in its occurrence at the site of a blow or impact, the wound would more often than not be external. But there are cases where the bleeding which evidences the separation of tissues may be internal: R v Waters [1979] NZCA 24; [1979] 1 NZLR 375, 378, per McMullin J”

“A wound therefore requires proof of breaking of the skin and a flow of blood either external or internal. However, it would appear that in England rupturing of internal blood vessels only is insufficient to constitute a wound: J J C (a minor) v Eisenhower [1983] 3 A11 E R 230; R v Devine [1982] TASRp 16; [1982] 8 A Crim R 45 (CA). In Devine, an injury which broke the skin and penetrated below the epidermis was held to be a ‘wound’ regardless of whether there was an effusion of blood”.

6. In the recent case of R v Scott [2007] NZCA 589, the New Zealand Court of Appeal again discussed the meaning of the term ‘wound’ in the context of s.188 of the New Zealand Crimes Act 1961 which is similar to s.118 of our Act. In delivering the judgment of the Court, Williams J said at para [49]:

“[We] confirm the passages in Waters to the effect that any rupture of tissues of the body, internal or external, with one of the two intents in the section can amount to a ‘wound’ for the purposes of charges brought under s.188”

The offending

7. According to the prosecution’s summary of facts, on Friday night 10 May 2013 at about 11:00pm, the victim and his cousins were outside the Mormon Church compound at Lepale, Fasito’o-uta, watching a church dance whilst drinking alcohol. The accused later joined them and also consumed alcohol.
8. A matai of the village then approached these men and chased them away as alcohol was prohibited from the area. The matai also picked up the accused’s cup of beer and poured it on the ground. The accused then approached the victim and asked him about his cup of beer. When the victim replied that the matai had taken it, the accused collared the victim and asked him “E ke fia ulavale?” Apparently, the accused did not believe the victim. The accused then went to his car and called out to the victim: “E ke koe masae mai loa, ou faga loa lou guku ile faga” ( If you open your mouth again, I will shoot your mouth with the gun). The victim responded, “Ia sau” ( Alright come). The accused then walked over and punched the victim on the eye. Fortunately, the church dance had just ended and the people from the dance had come to where the victim and the accused were. That stopped what could have developed into fight at that place. The victim and his cousins then walked away. However, the accused called out again “E ke vaai iai ole a ou alu e aumai le faga e kafaga ai oukou” ( You’ll see that I will go and get a gun to shoot all of you).
9. As the victim and his cousins walked away, the accused drove past in his car and stopped it in front of them. He then called out to the victim and his cousins that no one was to walk past his car. A matai of the village intervened and told the accused to leave the victim and his cousins alone. The accused then got back into his car and drove seaward. However, that was not to be the end for not long after that the accused was seen driving back inland to where the victim and his cousins were walking from on the road. The accused drove fast the victim and his cousins. He then turned his car around and drove past the victim and his cousins again heading seaward.
10. When the victim and his cousins arrived in front of the house of the accused’s family, the accused ran to the road and fought with the victim. The accused’s mother came over and stopped the fight. She apologised to the victim and his cousins and told them to go on home. But that was still not to be the end of this matter.
11. As the victim and his cousins continued on their way, the accused got into his car and drove to where the victim was walking. The victim was slow to see the accused’s car coming at him. As a result, he was hit by the car causing him to fly onto the side of the road where he landed unconscious. The victim was later taken to the Leulumoega District Hospital the same night and was subsequently transferred to the Tupua Tamasese Meaole Hospital in Apia (TTM Hospital).
12. The report from the doctor who examined the victim at the TTM Hospital shows the following injuries: (a) abrasion below the eye, (b) abrasion over the nose bridge (no bleeding), (c) arm tenderness (pain in left arm), and (d) minor injuries over the face. To these injuries is to be added the unconsciousness suffered by the victim when he was hit by the accused’s car which is also an injury: Police v TJ Niko [2013] WSSC 65.

The accused

13. The accused is 35 years old. He had a low level of education having left school at Year 7. He was a bus driver but his employment came to an end as a result of this matter. He has six children from his first marriage which ended when his wife died. He has since re-married and has three children from his second marriage. He is also a first offender and it appears from the testimonials from the bishop of his church, the pulenuu of his village, and his former employer that he had been a person of good character prior to the commission of these offences.
14. The accused’s family had performed a ifoga accompanied by the presentation of a large fine mat and $120 to the family of the victim. The ifoga was accepted and this matter has been settled between the two families. The accused has also apologised to the victim and the apology was accepted. The victim has also forgiven the accused.
15. It appears from the pre-sentence report that on the night of this incident the accused had a few large bottles of Vailima beer before he met up with the victim and his cousins. He was apparently under the influence of alcohol but this was no excuse in law for his actions.

The aggravating and mitigating features

16. The aggravating features of this offending is the high degree of deliberateness and persistence involved on the part of the accused, the use of a car to cause harm to the victim which was very dangerous, and the injuries sustained by the victim. It is clear from the threatening words uttered by the accused outside of church dance at Lepale that he was out to cause serious injuries if not more to the victim and his cousins. His subsequent actions also clearly manifested that intent. But there was really no provocation from the victim and his cousins to justify the accused’s outburst of anger. If anything, it was the accused who was very provocative towards the victim and his cousins, and even though the accused was stopped by his mother for fighting with the victim, he still continued to go after the victim until he injured the victim. There is simply no mitigating feature of this offending.
17. In terms of mitigating features personal to the accused, I take into account the fact that he is a first offender who had been a person of good character prior to the commission of these offences, the ifoga by the accused’s family to the victim’s family, and the apology by the accused to the victim, as well as the guilty plea by the accused on the date of trial after some of the charges including the charge of attempted murder against him had been withdrawn.

Discussion

18. Having regard to the aggravating features of the offending and the need for deterrence in this type of case, I will take 5 years as starting point for sentence. I will deduct 6 months for the accused’s previous good character. That leaves 4½ years. I will deduct a further 6 months for the ifoga and the apology by the accused to the victim. That leaves 4 years. I will further deduct 25 % for the guilty plea. That leaves 3 years.

The result

19. On the charge of with intent to cause grievous bodily the accused did wound the victim, the accused is sentenced to 3 years imprisonment. On the charge of with intent to cause actual bodily harm the accused did cause bodily harm to the victim, the accused is sentenced to 3 years imprisonment. And on the charge of using threatening words, the accused is sentenced to 2 months imprisonment.
20. Any time the accused has already spent in custody because of this matter is to be further deducted from that sentence.
    

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia for prosecution
Leung Wai Law Firm for accused