Police v Vaai [2009] WSSC 109 (23 October 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN

POLICE
Prosecution

AND

FALE VAAI
male of Motootua and DANI GAGAMOE male of Motootua and Fasitoouta.
Accused

Counsel: F Vaai and M Lemisio for prosecution
Accused in person

Sentence: 23 October 2009

SENTENCE BY SAPOLU CJ

The charge

1. The accused Fale Vaai and Dani Gagamoe are relatives and appear for sentence on the charge of wilfully causing grievous bodily harm without lawful justification. They had pleaded not guilty to the charge and after a one day trial they were found guilty.

The offending

2. On Friday night 13 February 2009, the victim was drinking a cup of coffee and talking to some people in a store at Motootua. When the store was about to be closed late that night, the victim left and walked to the house of his former employer where he was staying at the time.

3. Soon after the victim left the store, he saw the two accused standing together not far away. The accused Dani Gagmoe then threw a stone which hit the victim on the left side of his face. That was soon after both accused had been involved in a brawl with a man who was drunk and armed with a bushknife. That man was working with the victim for the same employer at that time.

4. When the victim was hit by the stone, he fell down onto the road unconscious. The two accused then punched and kicked the victim. The evidence given at the trial shows that there were many punches and kicks delivered by the accused to the victim. After the assault stopped, the unconscious victim was taken into the National Hospital which is only a short distance from where this incident occurred. The victim regained consciousness at the hospital at about 4 am in the morning which was about 3 to 4 hours after he was assaulted. He was discharged with medication later the same morning when it was daytime.

5. The doctor who examined the victim upon arrival at the hospital testified that he found bruises and swelling on the victim’s forehead and the left side of his face. He also found a cut on the victim’s left upper lip. An x-ray of the victim’s head revealed no broken bones. The doctor also testified that the injuries he found on the victim’s face were moderate to severe, that is to say, those injuries were neither moderate nor severe but somewhere in between.

6. The victim, however, testified that he also lost four teeth as a result of the assault on him. The doctor who examined the victim apparently did not examine the victim’s mouth or teeth but the dentist who examined the victim’s teeth was not available to testify.

7. After the victim was discharged from the hospital he was, according to the submissions by counsel for the prosecution, bedridden for three weeks. The victim, on the other hand, had testified that after he was discharged from the hospital, he laid at home for three months. Given the nature of the injuries to the victim and the fact that the examining doctor saw fit to discharge the victim in only a matter of hours after he was admitted to the hospital, I will accept what is said in the submissions by counsel for the prosecution that the victim was bedridden for three weeks.

The accused Fale Vaai

8. The accused Fale Vaai is a first offender. He is 30 years old, single and was employed as a shop assistant at the time of this incident. He has been laid off temporarily from his job to await the outcome of this case.

9. The pre-sentence report shows this accused to be a reliable person and his family depends on him for financial support. However, the pre-sentence report also shows that this accused drinks alcohol regularly and likes to hang out with his peers. It is also reported that since this incident there have been positive changes in this accused’s behaviour.

10. This accused also showed deep remorse during his plea in mitigation.

The accused Dani Gagamoe

11. The accused Dani Gagamoe is also a first offender. He is 27 years old, married with two young children and was employed at the time of this incident.

12. As shown from the pre-sentence report, this accused was 8 years old when his father passed away. His mother then remarried and he was brought up with his other siblings by his maternal grandmother. As a result, he left school at an early age and found a job when was only 13 years in order to help his family.

13. The pre-sentence report also shows this accused to have been a reliable and trustworthy employee. His wife also told the probation service that the accused is a calm and reserved person and is the sole breadwinner of their family.

14. This accused also showed deep remorse during his plea in mitigation.

The victim

15. The victim is 25 years old. He is single and is no longer employed. When he testified at the trial, he appeared to have recovered from his facial injuries and was able to speak without impediment. There is no victim impact report on the injuries caused to the victim from the assault by the accused.

Aggravating factors

16. The assault in this case was unprovoked. The victim had done nothing to make the accused angry. The throwing by the accused Dani Gagamoe of a stone which hit the victim on the left side of his face was also a very dangerous act. It caused the victim to fall down onto the road and became unconscious. Then when the victim was lying on the road unconscious and defenceless, the accused punched and kicked him many times. As a result, the victim suffered bruises and swelling to his face, a cut to his left upper lip, and lost four of his teeth.

17. It has to be pointed out that a not guilty plea is not an aggravating factor as the submissions by the prosecution suggest. The accused has a right to plead not guilty to a charge against him. If at his trial he is found guilty, the not guilty plea is not to be taken into account as an aggravating factor which may increase the sentence. The effect of a not guilty plea for sentencing purposes is that the accused will not be given a discount which he might otherwise have been given, in the exercise of the Court’s discretion, if he had pleaded guilty. In short, a not guilty plea is not an aggravating factor whereas a plea of guilty can be a mitigating factor for sentencing purposes. The weight to be given to a plea of guilty depends on the circumstances in which it was given in a particular case.

Mitigating factors

18. There are no mitigating factors in this case which relate to the actual offending. The only mitigating factors which relate to the accused personally are the fact that both accused are first offenders and their expressions of remorse to the Court.

The range of sentences in recent comparable cases

19. The sentences which this Court has imposed in cases of causing grievous bodily harm in the recent past ranged from non-custodial sentences such as a suspended sentence as in Police v Iele [2002] WSSC 22 and a monetary fine as in Police v Aiono [2007] WSSC 8 and Police v Tuai [2009] WSSC 22 to custodial sentences the longest being 3 years and 3 months imprisonment in Police v Leotele [2008] WSSC 33 which involved an unprovoked assault and the infliction of very serious injuries on the victim with a bushknife.

20. In my view, the range of sentences imposed in recent comparable cases is a relevant consideration to be borne in mind when passing sentence and, in particular, when determining the starting point for sentence. The maximum penalty for the offence should also not be overlooked.

21. It is also to be borne in mind that sentencing is not an exact science. What is involved is the weighing up of the various relevant factors, including the aggravating and mitigating factors relating to the offending and to the offender, and then to try and arrive at a fair and just sentence.

22. The approach which the Samoan Courts have adopted, following New Zealand cases, in conducting the sentencing exercise is to start by first setting a starting point for sentence by having regard to the aggravating and mitigating factors relating to the offending. That starting point may then be adjusted up or down having regard to any aggravating or mitigating factors relating to the offender. However, I am of the view that other relevant factors like the sentences passed in recent comparable cases and the maximum penalty for the particular offence on which the offender is to be sentenced are not to be overlooked.

The decision

23. Having regard to the aggravating factors and the absence of any mitigating factor relating to the offending, I will take 20 months as the starting point for sentence in this case. For the mitigating factors relating to the accused, I will deduct 3 months for the fact that the accused are first offenders and 2 months for remorse. That leaves 15 months.

Each of the accused is convicted and sentenced to 15 months imprisonment. The one day that the accused were remanded in custody has been taken into account.

CHIEF JUSTICE

Solicitor
Attorney General’s Office, Apia, for prosecution