Police v Savaiinaea and Savaiinaea [2016] WSDC 17 (2 May 2016)

DISTRICT COURT OF SAMOA
Police v Savaiinaea and Savaiinaea [2016] WSDC 17

Case name:	Police v Savaiinaea and Savaiinaea
Citation:	[2016] WSDC 17
Decision date:	2 May 2016
Parties:	POLICE v TAVITA SAVAIINAEA and JUNIOR SAVAIINAEA, both males of Lotosoa Saleimoa
Hearing date(s):
File number(s):	D172/16, D174/16, D175/16, D311/16, D312/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	District Court Judge Roma
On appeal from:
Order:	-In view of the above, I sentence you Tavita as follows: (a) On the charge of causing bodily injury, you are convicted and sentenced to 6 weeks imprisonment. Upon serving that imprisonment term, you will be placed on supervision for 3 months on conditions that: (i) You undertake the Alcohol Awareness Programme with the Probation Service; (ii) You undertake the Anger Management Programme with the Probation Service. (iii) On the charge of being armed with a dangerous weapon, you are convicted and sentenced to 4 weeks imprisonment, to be served concurrently with the imprisonment term for the causing bodily injury charge; (b) On the charge of insulting words, you are convicted and discharged. - Junior Savaiinaea (Second Defendant) (i) In your case Junior, your involvement was minimal compared to Tavita, having joined him after the first encounter. (ii) A custodial sentence in my view in inappropriate. I consider appropriate and helpful for you that you attend the same programmes which I have ordered your brother Tavita to attend. For that reason, I will defer your sentence to allow you the opportunity to undergo those programmes. (iii) You are ordered to attend and undergo the Alcohol Awareness Programme and Anger Management Programme delivered by the Probation Service. (a) You are to appear again before this Court at 12.30pm on 1st July 2016 for sentencing. -
Representation:	S. Uelese for National Prosecution Office S. Wulf for both defendants
Catchwords:
Words and phrases:
Legislation cited:	Criminal Act 2013 s.123, s.119(2) Police Offence Ordinance 1961 s.25 & s.4(g)
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

TAVITA SAVAIINAEA and JUNIOR SAVAIINAEA, both males of Lotosoa Saleimoa
Defendant

Counsel:
S. Uelese for National Prosecution Office
S. Wulf for both defendants

Decision : 2 May 2016

SENTENCING DECISION OF DCJ ROMA

Charges

1. Tavita and Junior, you both appear for sentencing this afternoon on a number of charges.
2. Against Tavita, the charges are:

(i) Causing bodily injury to Mikaele Fue Tomasi, male of Lotosoa, Saleimoa (s119(2), Crimes Act 2013);

(ii) Being armed with a dangerous weapon (knife), not being so armed for a lawful purpose (s25, Police Offences Ordinance 1961);

(iii) Using insulting words (s4(g),Police Offences Ordinance 1961)

3. Against Junior, the charges are:

(i) Common Assault of Mikaele Fue Tomasi (s123, Crimes Act 2013);

(ii) Being armed with a dangerous weapon (hockey bat) not being so armed for a lawful purpose (s25, Police Offences Ordinance 1961).

4. The maximum penalties for the above charges are as follows:

(i) Causing bodily Injury – 5 years imprisonment;

(ii) Common Assault – 1 year imprisonment;

(iii) Armed with a dangerous weapon – 1 year imprisonment;

(iv) Insulting words – 3 months imprisonment or a fine of $200.00.

5. Through Counsel, you both pleaded guilty to all charges at the earliest opportunity.
6. On 2 March 2016 when you first appeared for sentencing, you disputed parts of the Prosecution’s Summary, which then required hearing evidence. However, on 21 April 2016 when that hearing was to take place, you both conceded through Counsel the disputed parts.

Offending

7. From the Summary, the incident from which the charges arose occurred on the evening of Boxing Day (26 December) 2015 around 11.30pm.
8. The victim had been sleeping in his home when he heard Tavita making noises outside. The victim looked out and Tavita swore at him. The victim told Tavita off for being rude and by then, the victim’s children had awoken.
9. Tavita then grabbed a stone and walked inside the victim’s house. The victim

- tried to chase him out, but Tavita continued inside and struck the victim on left shoulder.

10. The victim’s older son managed to push Tavita out of the house. Tavita then left saying that he would come back.
11. When Tavita came back, he brought Junior with him, both armed, Tavita with a knife and Junior with a hockey bat.
12. The victim confronted you both and asked how you could return, but you told him that you were coming for the victim’s older son, whom you then proceeded to chase around the house with the objects in your hands.
13. Tavita threw the knife at the victim’s older son. Fortunately it missed and when you could not catch him, you returned to where the victim was standing with his younger son.
14. This time, despite pleas from the victim, Tavita struck him on the right shoulder with a stone causing him to fall, before Junior joined and threw punches at the victim whilst he was still on the ground.
15. Again, the victim pleaded with you to stop, but you continued with the assault until the victim managed to run off to the road in time for the police to arrive.
16. You both fled the scene and were subsequently apprehended by the Police.

Victim

17. The victim is a 52 year old male of Leauvaa and Lotosoa Saleimoa.
18. According to the Summary, he sustained a swollen right shoulder and a broken right collar bone from the assault. That part of the Summary appears to have been based on a document before this Court labelled as the “doctor’s first opinion” when the victim was first examined in December 2015.
19. However, in a report dated 26 February 2016 by the same doctor, which report is also before the Court, he refers to the injuries suffered as “generalised body aches and bruises”, and confirms that the victim was treated and discharged with medication.
20. The second report suggests that the injuries were not as serious as stated in the first and in the Summary by the prosecution.

Defendants

21. Tavita, you are now 25 years of age and the third eldest of four siblings. Your formal education ended at Primary level. You are single and you work the plantation to support your parents and family.
22. You told Probation that you have no idea how the incident happened. You were too drunk, and only remember waking up at the Police station the following morning.
23. Junior, you are now 24 years of age. Tavita is your older brother, and from your Counsel’s plea, you are now employed at a plantation at Tanumalala.

Aggravating Factors

24. The following are the aggravating features of your offending:
    • (i) This was a joint assault. Clearly, when Tavita came back, he struck the victim whilst holding a stone in his hand, before Junior joined and continued with the assault whilst the victim was on the ground;
    • (ii) You entered the victim’s home late at night uninvited, clearly with intention to cause trouble;
    • (iii) The assaults were continuous. After the first assault by Tavita, he was joined in the second by Junior, which despite pleas by the victim, continued until the victim managed to run off. Even prior to the second assault, Tavita threw the machete at the victim’s older son, which fortunately missed;

(iv) The assaults involved the use of a stone, not once but twice;
(v) The assaults were unprovoked;
(vi) The victim is an elderly man, respectively 27 and 28 years older than you, and for whom you should have therefore shown and treat with respect;
(vii) Impact on the victim. Apart from the injuries sustained, there was a high risk that the victim would suffer far worse consequences. I bear in mind however, that the injuries are not as serious as other matters that have come before the Court.
(viii) The charges are alcohol related. From the material before the Court, you could not remember anything, an indication of the level of your intoxication on the night of the incident.

25. There are no aggravating features relating to you as Offenders.

Mitigating Factors

26. There are no mitigating features relating to your offending.
27. As offenders, I take into account the following mitigating factors:
    • (i) Your guilty pleas to all charges at the earliest opportunity;
    • (ii) Apology and reconciliation with the victim as confirmed in the pre

sentence report ordered for Tavita;

(iii) Personal Circumstances including your previous good character.

Discussion

28. Prosecution submits that a custodial sentence is warranted, with different starting points because of the different charges you face.
29. They refer in their sentencing memorandum to previous sentences for causing injury, but in none of those cases was a custodial sentence imposed. Further, they do not refer to the circumstances of each case in their memorandum, which is not helpful for purposes of this sentencing.
30. But I have considered this case carefully in particular, the circumstances of your offending.
31. I accept that this was fuelled by alcohol as submitted by your Counsel, but also make it clear that that is no excuse. In saying that, I am of the view that your case is one example of how people can abuse alcohol up to the point where they cannot remember their actions, and only regret the consequences the following morning, a prevalent occurrence as seen in the number of similar matters coming before the Courts.
32. That aside, what is also clear is that this was not a spur of the moment and brief dispute. You provoked the incident Tavita with your utterances of insults. You did not heed the victim’s advice to stop but instead, entered his house uninvited and struck him whilst holding a stone.
33. You went back and brought Junior with you, then armed with a hockey bat and knife. You chased after the victim’s older son and when you could not catch him, you returned to the victim. More seriously, despite his pleas, you again struck him whilst holding another stone, before you both engaged in assaulting him whilst on the ground.
34. In those circumstances, I am of the view that a custodial sentence is warranted.
35. I bear in mind however your respective culpability and the different charges that you appear for sentencing on.

Tavita Savaiinaea (First Defendant)

36. In your case Tavita, taking into account the aggravating features of your offending, I adopt a starting point of 9 months imprisonment.
37. I deduct 2 months for your apology and previous good characters, leaving a term of 7 months. I deduct a further 3 months for your early guilty pleas leaving a period of 4 months.
38. That is the term of imprisonment you would have had to serve for the charge of causing bodily injury, if a custodial sentence was the only sentence I impose.
39. But given the circumstances of your offending, I also consider it appropriate and helpful for you that you undergo the Alcohol Awareness and Anger Management Programmes, which I am told are delivered by the Probation Service.
40. In view of the above, I sentence you Tavita as follows:
    • (i) On the charge of causing bodily injury, you are convicted and sentenced to 6 weeks imprisonment. Upon serving that imprisonment term, you will be placed on supervision for 3 months on conditions that:

(ii) You undertake the Alcohol Awareness Programme with the Probation Service;

(iii) You undertake the Anger Management Programme with the Probation Service.
(iv) On the charge of being armed with a dangerous weapon, you are convicted and sentenced to 4 weeks imprisonment, to be served concurrently with the imprisonment term for the causing bodily injury charge;
(v) On the charge of insulting words, you are convicted and discharged.

Junior Savaiinaea (Second Defendant)

41. In your case Junior, your involvement was minimal compared to Tavita, having joined him after the first encounter.
42. A custodial sentence in my view in inappropriate. I consider appropriate and helpful for you that you attend the same programmes which I have ordered your brother Tavita to attend. For that reason, I will defer your sentence to allow you the opportunity to undergo those programmes.
43. You are ordered to attend and undergo the Alcohol Awareness Programme and Anger Management Programme delivered by the Probation Service.
44. You are to appear again before this Court at 12.30pm on 1^st July 2016 for sentencing.
    

JUDGE FEPULEAI A ROMA