Police v Faamausili [2016] WSDC 18 (11 May 2016)

DISTRICT COURT OF SAMOA
Police v Faamausili [2016] WSDC 18

Case name:	Police v Faamausili
Citation:	[2016] WSDC 18
Sentencing:	28 April 2016
Parties:	POLICE v ALIIMALEMANU METUSELA FAAMAUSILI , male of Leauvaa and Malie.
Hearing date(s):	28 April 2016
File number(s):	D1065/16, D1066/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	- To the charge of assault on the 24th March 2016, you are sentenced to eight months supervision on the condition that you carry out 40 hours community work; and - To the charge of assault on the 26th March 2016, you are sentenced to eight months supervision on the condition that you carry out 60 hours community work and you are to attend an anger management course during your supervision period as directed by the Probation Service.
Representation:	O Tagaloa for prosecution Defendant in person
Catchwords:	Sentence – assault – maximum penalty – aggravating features – mitigating features -
Words and phrases:
Legislation cited:	Criminal Act 2013 s.123 Road Traffic Ordinance 1960
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

ALIIMALEMANU METUSELA FAAMAUSILI, male of Leauvaa and Malie.
Defendant

Counsel:
O Tagaloa for National Prosecution Office
Defendant in person

Decision : 11 May 2016
.

SENTENCING DECISION OF JUDGE CLARKE

The Charges

1. You appear for sentence on 2 assault charges as follows:
   • (i) That on the 24^th March 2016 at Leauvaa, you assaulted Loi Fa’amuli in breach of section 123 of the Crimes Act 2013; and
   • (ii) That on the 26^th March 2016 at Leauvaa, you again assaulted Loi Fa’amuli in breach of section 123 of the Crimes Act 2013
2. Each charge carries a maximum penalty of 1 year imprisonment. You pleaded guilty to both charges at the first available opportunity.

The Offending

3. You and the victim are both bus drivers. The Summary of Facts accepted by you is that on the 24^th March 2016 between 5.00am and 6.00am, you saw the victim picking up passengers from Leauvaa village, however, the victim’s bus is not registered to pick-up passengers from Leauvaa. This made you angry so you walked into the victim’s bus and punched the victim twice on the mouth.
4. On the 26^th March 2016 between 9.00am and 10.00am, the victim’s bus was heading to Tuanai uta from Apia. Again, you walked on to the victim’s bus and punched the victim on his face and the back of his neck 6 times. The victim sustained a swollen left eye and a bruise on the back of his neck. You left the bus and drove off.

Background of the defendant

5. You are a 37 year old male of Malie and Leauvaa and are employed as a bus driver for Leauvaa. You have previous offending involving 10 earlier convictions, all except one involve traffic infringements including dangerous driving, careless driving and overloading. Your offending appears connected with your role either as a bus driver or connected with driving of a vehicle.

Background of the victim

6. The victim is a 33 year old male of Leauvaa. He is employed as a bus driver for Tuanai. In his Victim Impact Report, he says that as a result of your assaults, he felt dizzy, suffered a swollen left eye that took 3 days to heal accompanied by blurred vision. He suffered bruising to his neck and he feels pain on his neck.

Aggravating features of the offending

7. The aggravating features of your offending are as follows:

(a) Your offending occurred in the course of your employment as a public service bus driver;

(b) Your assaults were unprovoked;

(c) Your second assault involved in my view premeditation;

(d) Your assaults were a continuing assault in that they involved multiple punches and on two separate occasions;

(e) Your assaults targeted the victim’s head, the first involving two punches to the victim’s mouth and the second assault targeting his head and neck, which continue to cause the victim pain.

8. The Summary of Facts does not state whether either the victim’s bus or your bus was carrying passengers. If your assaults had taken place in the presence of passengers, that would be an aggravating factor relevant to my sentencing.

Mitigating features of the offending

9. There are no mitigating features in respect of your offending.

Aggravating features in respect of the offender

10. This is your first offence involving violence. It is therefore different in nature to your earlier offending. Whilst it is different in nature, it nevertheless is connected with your employment and was an assault that occurred in the course of your role as a bus driver. I will therefore have some regard to your earlier offending.

Mitigating features in respect of the offender

11. You entered a guilty plea at the first available opportunity. You asked the Court for forgiveness, that you have reconciled, you won’t be back to Court and that your work as a bus driver provides for your family and for your children’s schooling.

Discussion

12. The assaults committed by you were unprovoked. They targeted the victim’s face and head and involved multiple punches. As a result, the victim sustained a number of injuries including a swollen left eye, dizziness, bruising to his neck and continued pain to his neck. They also took place on separate days
13. A significant and aggravating factor of your assaults was that it was committed in the course of your employment as a bus driver. You are entrusted with the lives of the public each and every day you go to work and drive your bus. Your driving of a bus is a privilege and not a right. Your actions are unacceptable at any time, let alone when you are driving your bus in the course of your employment. If the Road Traffic Ordinance 1960 permitted me to suspend or disqualify your licence to drive a bus, I would order accordingly. Fortunately for you, the Road Traffic Ordinance 1960 does not permit me to suspend or disqualify your licence. The sentence that I will impose will however address the underlying cause of your actions, deter and denounce your conduct and address the public interest.

Sentence

14. Prosecution has appropriately not sought a custodial sentence. Having taken into account your offending as a whole including the aggravating and mitigating factors, you are convicted and sentenced as follows:

(a) To the charge of assault on the 24^th March 2016, you are sentenced to eight months supervision on the condition that you carry out 40 hours community work; and
(b) To the charge of assault on the 26^th March 2016, you are sentenced to eight months supervision on the condition that you carry out 60 hours community work and you are to attend an anger management course during your supervision period as directed by the Probation Service.

15. Your period of supervision shall be concurrent but your period of community work shall be served cumulatively.
16. I direct the National Prosecutions Office to forward a copy of this decision to the Chief Executive Officer of the Land Transport Authority.
    

JUDGE CLARKE