Police v Polataivao [2018] WSDC 12 (11 July 2018)

DISTRICT COURT OF SAMOA
Police v Polataivao [2018] WSDC 12

Case name:	Police v Polataivao
Citation:	[2018] WSDC 12
Decision date:	11 July 2018
Parties:	POLICE (Informant) vs MISIPELE VAA POLATAIVAO and TAIULU MULITALO (Defendants)
Hearing date(s):
File number(s):	D1880/18, D1882/18, D1887/18, D1888/18
Jurisdiction:	District
Place of delivery:	In the District Court of Samoa, Mulinuu
Judge(s):	DCJ Fepuleai A. Roma
On appeal from:
Order:	(i) On the joint charge of Common Assault, you are both convicted and ordered to appear in Court within 6 months if you re offend; (ii) On the charge of Common Assault against the defendant Misipele, you are convicted and ordered to complete 40 hours community work under the direction and supervision of the Probation Service; (iii) On the charge of Theft against the defendant Misipele, you are discharged without conviction; (iv) On the charge of uttering insulting words against the defendant Misipele, you are convicted and discharged.
Representation:	Ms. I. Atoa for the Prosecution
	Defendants Unrepresented
Catchwords:	Common assault – insulting words – theft – offending – aggravating factors – mitigating factors – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s123, 161 & 165(d), Police Offences Ordinance 1961 s4(g),
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE
Informant

AND
MISIPELE VAA POLATAIVAO, male of Nuu fou, and
TAIULU MULITALO
male of Nuu fou
Defendants

Representation: Ms I. Atoa for Prosecution
Defendants Unrepresented

Sentence: 11 July 2018

SENTENCING REMARKS OF JUDGE ROMA

Charges

1. You appear for sentencing on the following charges:
   • (i) 1 Joint charge of Common Assault (s123, Crimes Act 2013);
   • (ii) 1 charge of Common Assault against the defendant Misipele (s123, Crimes Act 2013);
   • (iii) 1 charge of uttering Insulting Words against the Defendant Misipele (s4(g), Police Offences Ordinance 1961);
   • (iv) 1 Theft against the defendant Misipele (s161 & 165(d), Crimes Act 2013).
2. The maximum penalty is 12 months imprisonment for the charge of Common Assault; $200.00 fine or 3 months imprisonment for the charge of uttering insulting words; and 12 months imprisonment for the charge of Theft.
   
3. Misipele is therefore liable to a maximum penalty of 3 years and 3 months imprisonment or 3 years imprisonment and a $200.00 fine on all 4 charges. Taiulu, on the other hand is a liable to a term of 12 months imprisonment.

Offending

4. The offending took place on 2 separate occasions. The first on 1 April 2018 involved a joint assault by you on the victim. The victim works at a nearby shop. You both went to the shop, Taiulu waited outside whilst Misipele went inside to buy his son an ice cream. The victim was busy serving other customers. It appears that the victim took a while before he could attend to Misipele. Misipele became angry and swore (‘kefe’) at the victim. As the victim walked to get the ice cream, Misipele followed and grabbed him by the collar before challenging him to a fight. They went outside the shop where they fought, Taiulu then joining Misipele against the victim. After some people stepped in to separate you, Misipele grabbed 2 cabbages worth $3.00 and walked away with them.
5. Misipele says that he took the cabbages because he had paid for it and it was part of the goods he bought from the shop before he fought with the victim.
6. The second incident occurred the following day. Misipele came back to the same shop where the victim was working. He challenged the victim to a fight and punched him on the eye. They fought and again ended up outside the shop where people nearby joined to stop them.

Aggravating factors

7. As to your offending, the first is obviously the pain and harm caused to the victim. The material before me does not refer to any injury. I do not doubt however that the victim suffered some sort of pain and / or harm as a result of the assaults. Secondly, the first assault was a joint offending. Thirdly, the second assault by you Misipele was clearly planned and premeditated. As you said yourself, you were still angry from the previous incident which is why you came back and challenged the victim the following day. When you go looking for trouble, you will surely get trouble. That is exactly what happened here.
8. There are no aggravating features relating to you as offenders.

Mitigating factors

9. You have both pleaded guilty to the charges at the earliest opportunity. I accept that you have also apologised and reconciled with the victim. You are both first offenders.

Sentence

10. Having considered the above matters, a custodial sentence is not appropriate. The Court sentences you as follows:
    • (i) On the joint charge of Common Assault, you are both convicted and ordered to appear in Court within 6 months if you re offend;
    • (ii) On the charge of Common Assault against the defendant Misipele, you are convicted and ordered to complete 40 hours community work under the direction and supervision of the Probation Service;
      • (iii) On the charge of Theft against the defendant Misipele, you are discharged without conviction;

(iv) On the charge of uttering insulting words against the defendant Misipele, you are convicted and discharged.

11. Are you clear on the sentence? Thank you, you may stand down.
    

JUDGE FEPULEAI A. ROMA