Police v Vaitoelau [2016] WSDC 35 (26 August 2016)

DISTRICT COURT OF SAMOA
Police v Vaitoelau [2016] WSDC 35

Case name:	Police v Vaitoelau and Enesi
Citation:	[2016] WSDC 35
Decision date:	26 August 2016
Parties:	POLICE v FAIGAME VAITOELAU, male of Sapunaoa and SIMEKI ENESI, male of Moataa
Hearing date(s):
File number(s):	D1042/16A, D1043/16A
Jurisdiction:	Criminal
Place of delivery:	District Court Samoa, Mulinuu
Judge(s):	DISTRICT COURT JUDGE CLARKE
On appeal from:
Order:	Faigame - convicted and sentenced to 14 weeks imprisonment, to be served cumulative. Simeki - convicted and sentenced to 8 weeks imprisonment, to be served cumulative.
Representation:	I Atoa for National Prosecutions Office Defendants in person
Catchwords:	Assault – aggravating features – mitigating 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

FAIGAME VAITOELAU, male of male of Sapunaoa and SIMEKI ENESI, male of Moataa
Defendant

Counsel:
I Atoa for National Prosecutions Office
Defendants in person

Decision: 26 August 2016

SENTENCING DECISION OF DCJ CLARKE

1. Faigame and Simeki, you both appear this morning for sentencing on one count each of common assault in breach of section 123 of the Crimes Act 2013. You both originally pleaded not guilty to the charges on 11 May 2016. On the hearing date on 13 July 2016, you both vacated your pleas of not guilty and entered pleas of guilty.
2. The maximum penalty for common assault is 12 months imprisonment.

The Offending

3. According to the Prosecution Summary of Facts accepted by you both, on 11 April 2016, the victim went with other prison officers to the National Hospital, Moto’otua to escort the defendants for examination. After the defendants were seen by the doctor, the victim got into an argument with another prisoner, Daniel Vailopa outside the Out Patient area of the hospital. As they argued, Daniel Vailopa picked up a stone and walked towards the victim. Other prison officers saw Daniel Vailopa and disarmed him. The victim then went and punched Daniel Vailopa. Daniel Vailopa then punched the victim and as this was occurring, you Simeki walked up behind the victim and strongly pushed the victim on his shoulder.
4. You were both then placed in the Police car and taken away together with Daniel Vailopa to Apia Police Station. When the car reached Malifa, you Faigame together with Daniel Vailopa then threw punches at the victim. As a result, the car stopped. When the car stopped, you both got out of the car and walked away. The car left, went and got back up Police officers and returned and picked you both up and took you to Apia Police Station.

The Accused

5. According to the Summary of Facts, you Faigame are 27 years of age. This however is inconsistent with your Prior Conviction Record which says you were born on 7 May 1983 which would make you 33 years of age. I accept the Prior Conviction Record as correct because if the Summary of Facts is correct, you would have been 12 when you first committed rape, which is unlikely. You are a Prisoner at Tafaigata Prison. You confirmed your lengthy history of criminal offending starting in 2001 when you were 17 years of age to date. You have been convicted of violent offending including rape, a number of assaults and intentional damage. You have also been convicted of numerous offences of dishonesty and breaking prison and escape. You are what is unfortunately known as a career criminal.
6. You Simeki are 28 years of age and also a prisoner at Tafaigata. Your prior conviction record shows one prior conviction for theft as a servant for which you were convicted last year to 2 years and 8 months imprisonment.

The Victim

7. The victim is a 30 year old prison guard at Tafaigata Prison.

Aggravating features of Offending

8. The aggravating features of your offending are as follows:
   • (a) Breach of the trust of the Prison Service that you would not offend whilst taken for medical check-up at the hospital;
   • (b) You committed your offending whilst you are serving a custodial term at Tafaiagata;

(c) Your assaults were against a Prison Guard;

(d) Your assault Faigame was a group attack with Daniel Vailopa against the victim; and

(e) Your assault Faigame was premeditated.

The mitigating features of your offending

9. I note that there is a minimal level of provocation in your favour Simeki in terms of the actions of the victim against your fellow Prisoner Daniel Vailopa who the victim punched when disarmed and following which, you became involved.

The aggravating factor relating to you as an Offender:

10. You both have prior convictions. Faigame, your prior convictions are very lengthy.

The mitigating factors relating to you as an Offender:

11. I take into account your guilty pleas.

Discussion

12. The Prosecution has sought the imposition of a custodial term on you both with a starting point of 10 months. Prosecution has not distinguished between the two of you, your prior conviction histories or the nature of each of your separate assaults.
13. The assault that you both carried out was against a Prison Officer. He was on duty and had taken you both for medical check-ups. For prisoners, they must be quite clear that offending whilst they are prisoners runs a serious risk of further imprisonment. In this case, because your assault was carried out against a Prison Officer, a deterrent sentence must be imposed to hold you accountable for your actions, denounce your conduct and importantly, deter other prisoners from committing the same or a similar offence. Where a Prisoner assaults a Prison Officer, they must be prepared for the likelihood of a further prison term being imposed. In both your cases, a further custodial sentence is warranted.
14. In seeking a custodial sentence, the Prosecution has cited a number of authorities for sentences imposed by the District Court for cases of common assault. All except one case resulted in the defendant being convicted and to come up for sentence if ordered by the Court. On the one case where a different sentence was imposed, it was a sentence of community work and under judicial monitoring. There are no cases cited of common assault resulting in a custodial sentence being imposed. This case is however different because in none of the cases cited was it a Prisoner that was sentenced. In my view, the start point of 10 months sought by the Prosecution is however out of kilter with the sentences that have been imposed by the Court. The Summary of Facts furthermore states no injuries in respect of the victim.

The penalty

15. Faigame, I adopt a start point of 12 weeks imprisonment. For the aggravating features personal to you as an offender, I add 4 weeks. For your guilty plea on the date of hearing, I deduct 2 weeks leaving an imprisonment term of 14 weeks. You are convicted and sentenced to 14 weeks imprisonment.
16. Simeki, I adopt a start point of 8 weeks. For the aggravating features personal to you as an offender, I uplift your sentence by 2 weeks. For your guilty plea, I deduct 2 weeks. You are convicted and sentenced to 8 weeks imprisonment.
17. Both your terms are to be served cumulatively.

JUDGE LEIATAUALESÃ D M CLARKE