Police v Sulusi [2006] WSSC 2 (3 February 2006)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

ONESEMO SULUSI
male of Saoluafata.
Accused

Counsel: K Koria and A. Lesa prosecution
Accused in person

Sentence: 03 February 2006

SENTENCE

The charge

The accused is charged under s.79 of the Crimes Ordinance 1961 with the offence of having caused grievous bodily harm without lawful justification which carries a maximum penalty of seven years imprisonment. To the charge the accused has pleaded guilty at the first available opportunity.

The offending

The accused together with the victim who is his paternal uncle and other members of their family were involved in the construction of the house of the accused’s family at Saoluafata. The victim who resides in Australia was visiting his family at Saoluafata.

According to the pre-sentence report prepared by the probation service, the accused told the probation service that during the week when his family’s house was under construction his uncle, the victim, was always on his back as whenever he made a mistake his uncle would tell him off before his relatives and other people who were engaged in the construction of his family’s house. He felt hurt and humiliated by some of the comments made by his uncle about him and his parents.

On Wednesday afternoon, 4 January 2006, during the construction of the house of the accused’s family, the accused was again scolded by his uncle for not being careful with the use of tools. As his uncle was walking back to the site of the construction, the accused walked up from behind and punched his uncle on the side of the face and then on the mouth. The assault was stopped by family members who were nearby.

As a result of the assault, the victim sustained a bruise to his right cheek, a laceration to his upper lip, a loosened tooth, and the plate of his artificial tooth was broken. The artificial tooth of the accused’s uncle has since been fixed.

According to the pre-sentence report, this matter has been settled within the family and the accused has apologised to his uncle. However, the family decided to report this matter to the police for fear of retaliation against the accused from the children of the victim.

The accused

The accused is a 25 year old male from the village of Saoluafata. He is single and lives with a paternal aunt and her husband at Saoluafata. His parents separated when he was at a young age. His grandparents then brought him up. Both his grandparents have passed away so that the accused is now under the care of his paternal aunt and her husband at Saoluafata.

The husband of the accused’s aunt with whom he is staying told the probation service that the accused is a peaceful and obedient person. The testimonial from the pulenu’u of the accused’s village also shows the accused as a quiet, peaceful and obedient person who is supportive of the matais of his village and in particular the enforcement of village curfews. The accused is presently unemployed but participate in village and church activities and assists his family with domestic chores.

The accused is also a first offender.

The victim

The victim is 58 years of age. He is a paternal uncle of the accused. He resides in Australia but at the time of this incident was visiting his family at Saoluafata.

Aggravating circumstances

The fact that the victim is an elderly uncle of the accused is an aggravating factor.

Mitigating circumstances

The accused’s plea of guilty to the charge against him at the first available opportunity, the fact that the accused is a first offender and had been a person of good character prior to the commission of this offence, and the fact that the accused has apologised to his uncle are mitigating circumstances in this case. There was also an element of provocation from the victim. This matter has also been settled within the family of the accused and the victim.

The decision

Even though the offence of causing grievous bodily harm has usually been dealt with a custodial sentence, having regard to the aggravating circumstances, the mitigating circumstances, the nature of the assault, and the nature of the injuries sustained by the victim, I have come to the conclusion that a monetary fine should be imposed.

The accused is convicted and fined $350.

Before leaving this case, it would be advisable for the prosecution to determine at the outset whether the nature of the injuries sustained by a victim of an assault justify a charge of causing grievous bodily harm or the lesser charge of causing actual bodily harm which lies within the jurisdiction of the District Court.

CHIEF JUSTICE