Police v Fatu [2008] WSSC 39 (9 June 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

POLICE
Prosecution

AND:

ILAI FATU
male of Faleasiu
Defendant

Presiding Judge: Justice Vaai

Counsel: Mr Koria for prosecution
Ms Tuala for defendant

Sentencing Date: 9 June 2008

SENTENCE BY JUSTICE VAAI

Defendant you are charged that on the 28th April 2007, wilfully and without lawful justification caused grievous bodily harm to Kalifa Tolai male of Tufulele. The summary of facts says that on between 10 and 11pm of that night you were at your home drinking alcohol when stones were thrown at your house. You responded by going to search for the person or persons who threw the stones. You came across the victim who was standing outside his house awaiting the car to take him to work. He asked you what was happening. You asked the victim if he was the one who threw the stones at your house and the victim replied no. You then struck the victim on the head with a large bottle of beer and the victim fell to the ground. He lost consciousness and he was taken to Leulumoega District hospital. Because of the seriousness of the injuries he was immediately referred to the Apia hospital where he was hospitalised for three weeks. On Sunday the following day the police came and you were cautioned and interviewed at the Faleolo Police post. As a result of the investigation you were charged with causing grievous bodily injury.

You now appear for sentence on that charge and for that offence you are liable to seven years imprisonment. I have received written submission from counsel for the prosecution they are seeking a term of imprisonment of not less than three years imprisonment. The reason why they are seeking the term of imprisonment is because this type of offence always attracts or warrants imprisonment sentence. On the other hand your counsel is seeking a non-custodial sentence and has advanced a number of grounds for the court not to impose a custodial sentence. The nature of your offending indicated that you intended to lash out at the first person that you came across that night as you were under the influence of alcohol. You responded to the victim’s inquiry by viciously striking him on the head with the bottle of beer. He told you that he was not the person who threw the stones at your house but nonetheless you decided to strike him. That strike to the head caused a linear fracture in the left temporal region resulting in cerebral injury which in turn affected the right side of the victim’s body. The injury to the head is described in the medical report as severe. He was unconscious on arrival at Leulumoega Hospital; where he was resuscitated and he vomited blood stained food. He was admitted to the surgical ward at Motootua Hospital where he made slow but steady progress with the assistance of regular physiotherapy. After he was discharged from hospital he still required regular visit for his physiotherapy treatments. As a result of the incident and the permanent physical disability he inherited through your offending he has lost the ability to provide and care for his family. Instead he is now a liability to his family who have to care and provide for him. The offending by you on the victim was completely unprovoked. From my reading of the facts you premeditated the full venting of your drunken anger on the first suspect that you came across. Where unjustified and unprovoked violence result in serious injury a term of imprisonment is warranted to protect society, to deter the offender and other like-minded violent Samoans and to reflect the seriousness of the offence. I am told by your counsel that you have 5 children ranging from 11 years to 8 months old. You are the sole breadwinner and if I send you to prison I will take you away from your children. I also accepted that you are remorseful and that you have attended two counselling sessions and there has been a reconciliation between your family and the victim’s family as well as between yourself and the victim. I am being urged by your counsel to exercise my inherent power to exercise mercy, although I accept that the court has an inherit power to exercise mercy that should not deprive the court from fulfilling its duties when considering sentence for these offences.

Taking into account the prevalence of this type of offending, as well as the lack of provocation and the seriousness of the injuries you caused on the victim I am satisfied that a custodial sentence should be imposed. As a starting point I take two years and six months as the appropriate starting point. For your guilty plea and your remorsefulness I take away six months. For the reconciliation I take away a further six months. You will serve a term of one year and six months imprisonment.

JUSTICE VAAI