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Police v Bahns [2019] WSSC 52 (9 August 2019)

THE SUPREME COURT OF SAMOA
Police v Herman Bahns [2019] WSSC 52

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

MANI HERMAN BAHNS male of Vaiusu-uta
Accused

Counsel:
A Matalasi for Prosecution
Accused Unrepresented

Sentence: 9 August 2019

SENTENCE

The charges

1. The accused appears for sentence on one charge of causing serious bodily injury with intent pursuant to section 118(1) Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment, and one charge of being armed with a dangerous weapon pursuant to section 25 of the Police Offences Ordinance 1961 which has a maximum penalty of 1 year imprisonment.
2. On 20 May 2019, the accused pleaded guilty to both charges.

The offending

3. According to the summary of facts, on 8 April 2019, the victim and the accused got into a fist fight. The accused’s father in law intervened and stopped the fight. The accused’s sisters went to the victim’s house to reconcile. The sisters apologised to the victim and the victim apologised to the accused’s family. Whilst the families were discussing the matter, the accused armed himself with a kitchen knife from his home and went to the victim’s home. He went straight to the victim punched him and then stabbed the left side of his back with the knife. The victim was taken to hospital where surgery was performed on the victim to remove the knife from his back. The victim sustained a pneumothorax whereby air had leaked into the space between the lungs and chest wall. The medical report said that the victim is fortunate to be alive because the bone stopped the knife from reaching the lungs and heart.

The accused

4. The accused is 35 years old in a de facto relationship with 3 children. He currently travels back and forth from Savaii helping his sister and partner run their store.
5. His de facto partner says that the accused is a loving, caring and hard working father and partner. She says that this offending was completely out of character.
6. He says that he has apologised to the victim and reconciliation has occurred.
7. He expressed remorse to Probation.
8. He is a first offender.

The victim

9. The victim is 34 years old, and is a carpenter. He is the accused’s wife’s uncle.
10. He says he did not know that he was stabbed. He became unconscious and woke up in hospital feeling severe pain.
11. He says the accused apologised to him, he has accepted the apology and they have reconciled.

Aggravating features of the offending

12. The aggravating features of this offending are;

It was a premeditated attack as he took the knife from his home and went to the victim’s home;

He attacked from the back of the victim which meant the victim was defenseless and unaware;

He used a knife which is a lethal weapon; and

The injury sustained was serious and almost fatal;

Mitigating Factors

13. The mitigating factors in favour of the accused are;
    1. The apology and reconciliation;
    2. The testimonial of his partner and his previous good character; and
    3. His early guilty pleas.

Discussion

14. Prosecution has recommended an imprisonment term with a starting point of 4 years.
15. In Telea v National Prosecution Office [ 2017] WSCA 4 (31 March 2017), the Court of Appeal stated grievous bodily harm attacks with a machete have tended to result in starting points of four to six years imprisonment. Although in this case, it was a kitchen knife, kitchen knives are just as lethal. So they would all fall within the same category as machetes.
16. The Court must continually impose deterrent sentences in these cases. The risk to life is too great when a weapon such as a knife is used. This case is no different and the accused will be sentenced to prison.

Sentence

17. Having regard to the aggravating features relating to the offending, I take 4 years imprisonment as a starting point for sentence.
18. I deduct 10 months for his apology and reconciliation, and 6 months for the testimonial of his partner and his previous good character. Finally I deduct 11 months for his early guilty pleas.
19. He is therefore convicted of causing grievous bodily harm and sentenced to 1 year and 9 months imprisonment.
20. He is convicted and discharged of the charge of being armed with a dangerous weapon.
21. Time spent in custody to be taken away.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN