Police v Joseph [2016] WSDC 19 (11 May 2016)

DISTRICT COURT OF SAMOA
Police v Joseph [2016] WSDC 19

Case name:	Police v Joseph
Citation:	[2016] WSDC 19
Sentence:	28 April 2016
Parties:	POLICE v APISAI JOSEPH, male of Leufisa and Tafaigata Prison
Hearing date(s):	28 April 2016
File number(s):	D766/16.
Jurisdiction:	CRIMINAL
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	- Convicted and sentenced to a term of imprisonment of 4 months. This term is cumulative to your current term of imprisonment
Representation:	O Tagaloa for National Prosecution Office Defendant in person
Catchwords:	Sentence – common assault – mitigating features – aggravating features –
Words and phrases:
Legislation cited:	Crimes Act 2013 s.123
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D

APISAI JOSEPH, male of Leufisa and Tafaigata Prison
Defendant

Counsel:
Mr O Tagaloa for National Prosecution Office
Defendant in person

Decision : 11 May 2016
.

SENTENCING DECISION OF JUDGE CLARKE

1. Apisai Joseph, you appear for sentencing on one count of common assault of Fale Levi on 17^th March 2016 in breach of section 123 of the Crimes Act 2013.
2. You entered a guilty plea to the charge at the first available opportunity.

The Offending

3. According to the Prosecution Summary of Facts accepted by you, this offending occurred at the Apia Police headquarters. While in Police custody, you had an argument with the victim, a 21 year old male from Faleapuna who was also being held in Police custody.
4. When the victim asked to go to the bathroom and went to the bathroom, you also told Police you needed to go to the bathroom. When you went to the bathroom and while the victim was “doing his business” as stated in the Summary of Facts, you came from behind and punched the victim twice. The first punch hit the victim on his left ear and the second punch struck the victim’s right eye as he turned around.
5. You told the Court that you hit the victim because he was drunk and making a lot of noise in the adjacent cell. This caused the argument which then later led to you assaulting the victim in the bathroom.

The Accused

6. You are a 17 year old male of Leufisa and Tafaigata Prison. You have a number of previous convictions starting from 2011 when you were 13 years of age and convicted of being armed with a dangerous weapon. Since you started your criminal career at such a young age, you have developed a steady list of convictions to include throwing stones to graduating to more serious offending including burglary, theft and in September 2015, to assault causing injury with intent amongst a number of other offences amounting to 12 convictions in all.

The Victim

7. The victim is a 21 year old male from Lufilufi and Faleapuna. He was at the Police Station following his arrest by Police.

Aggravating features

8. The aggravating features of your offending are as follows:
   • (i) You committed your offending whilst a Prisoner serving imprisonment for other offending;
   • (ii) Your offending occurred within the Police Station;
   • (iii) Your offending was premeditated, calculated and involved deceit. You lied to Police in order to access the victim in the bathroom to carry out your assault;
   • (iv) You struck the victim from the rear when he was vulnerable and without notice;
   • (v) Your assault targeted the victim’s head and involved two punches;
   • (vi) You are a previous offender with a history of offending including violent offending for which you were convicted in September last year, only 7 months ago.

The mitigating features of your offending

9. There are no mitigating features in respect of your offending. In terms of you as an offender, I take into account your early guilty plea at the first available opportunity. You expressed some remorse in Court for your offending.

Discussion

10. The punch you inflicted on the victim is called in the media as the “cowards punch” because it is a punch from behind against an unsuspecting victim. It is also a very dangerous punch which in many cases results in very serious injuries to a victim either resulting from the punch or the fall to the ground. Your actions were cowardly and dangerous.
11. In mitigation, you told the Court that you were very sorry and you will not appear before the Court again. You asked the Court for leniency as you only have 14 months imprisonment remaining. You told the Court that you do not wish to have any further term of imprisonment imposed and you wished to go back to your family.
12. The Prosecution has asked the Court to impose a custodial sentence of six months on you. I agree with Prosecution that in all the circumstances, a custodial sentence is warranted. You have a history of offending including violent offending. In this case, you carried out your offending whilst still a Prisoner and held in Police custody at Apia Police Station. Offending by Prisoners is a matter of significant public interest and concern and Prisoners must understand that should they offend whilst they are Prisoners, they run the real risk of further imprisonment. If you wish to go back to your family as you told the Court and on your release, to remain with your family, you must understand that you must abide by the law. By abiding by the law, it is your only guarantee of remaining out of prison after you complete your term of imprisonment.
13. Having regard to all the aggravating and mitigating factors of your matter, I adopt a starting point of 4 months imprisonment. I will uplift this term by 2 months for matters personal to you as an offender. I will deduct 1/3 for your guilty plea and the remorse you have expressed to the Court.

The penalty

14. You are convicted and sentenced to a term of imprisonment of 4 months. This term is cumulative to your current term of imprisonment

JUDGE CLARKE