Police v Tuai [2009] WSSC 22 (6 March 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

TUITOGA TUAI, male of Lufilufi.
Defendant

Counsels: Mr G. Patu for the prosecution
Defendant unrepresented

Sentence: 6 March 2009

SENTENCE

The defendant in this case appears for sentence on a charge of causing grievous bodily harm to the complainant Amataga Talalelei. The maximum penalty for grievous bodily harm is 7 years imprisonment.

The evidence at trial established that the defendant used a rock to cause the grievous bodily harm and that the rock struck the left side of the complainants neck and upper body. There was also evidence the complainant suffered facial and scalp lacerations from punches and/or kicks. That the injuries to the complainant were severe is beyond doubt. He was admitted to the national hospital unconscious and remained unconscious for about four days. His injury necessitated a twenty five day stay in hospital and the complainant in his evidence before the court talked about the long term damage to him and his ability to play sports. As the defendant was the only one proven to have assaulted the complainant the severity of the complainants injuries must reflect the severity of the defendant's assault. That the defendant was under the influence of alcohol at the time of the assault was also established and this aggravates his offending.

It is too often the case in our community that drunken men go too far and become embroiled in violent quarrels causing serious injury sometimes even death. The consumption of alcohol to excess leading to violent crime is becoming so common that this sort of offence rivals drug offending as the number one offence in the country. The majority of cases of grievous bodily harm coming before the court involve alcohol in one way or another which is why in an effort to try to stamp out this sort of behaviour the court imposes deterrent prison sentence on offenders. The need to continue that practice is clear and the time has probably also come for alcohol rehabilitation programs to be put into place by either the Probation Office or some suitable Non-Governmental-Organisation under the direction and control of the probation authorities particularly in the case of young and middle aged offenders. The defendant however is not young nor middle aged, he is a father and grandfather aged 70 years according to the confirmation in the Probation Office pre-sentence report and I doubt whether any alcohol rehabilitation programs would be suitable for him.

The question for me today is what do I do with this 70 year old father and grandfather who clearly lost control of himself on the night in question. I have already referred to the aggravating factors of the defendants offending but there are also to be taken into consideration mitigating factors in his favour.

First and foremost is the matter of provocation. The evidence at trial indicated that the complainant was responsible for the pregnancy of the defendant's teen-age granddaughter, a fact no doubt known to the defendant at the time of this offence. To add insult to injury the facts showed that the complainant went uninvited and drunk late at night after 11pm to the defendant's house wanting obviously to join in the drinking party being held there by the defendant and his friends. Such conduct was insensitive and disrespectful behaviour at best and culturally offensive at worst. The facts showed that the defendant sent the complainant out but he was brought back in by Mose a member of the defendants drinking party. The defendant this time chased both boys out and when Mose told the complainant to go the complainant began swearing and became belligerent towards the defendant. So Mose took the noisy complainant away to the main road watched by the defendant and another man. The evidence showed that the complainant kept on with his uncouth behaviour and uttered a threat to shoot the defendant. This was the final straw and the defendant and his friend approached the complainant and Mose. Mose’s evidence was he was able to stop the defendant's partner but not the defendant who then proceeded to assault the complainant. This assault caused the injuries that I have referred to.

I am told by the Probation Office that the defendant is a senior matai of the village. And there are numerous references that I have read in relation to the defendant attached to the Probation Office pre-sentence report. Clearly a visit late at night from a drunk uninvited and untitled young man is provocative enough. Add to that the unwanted pregnancy of the defendant's granddaughter and the matter moves from culturally disrespectful and offensive to conduct that is contemptuous and taunting. These are all strict no-nos in our aganu’u (culture) and indeed in European society drunken trespassing teenage gatecrashers are never welcome. This is not to say Tuitoga that you were justified in severely beating the complainant in retaliation, but it is to say I accept that for the purposes of this offence there was a high degree of provocation in the complainants actions, provocation exacerbated by the abuse and threats he subsequently hurled at you. That is the first factor in your favour.

The second factor in mitigation are those raised in the Probation Office pre-sentence report, in particular the fact that the Village Council of Lufilufi has imposed a fine of $3,000.00 on the defendant which is a significant sum by any measure. The village council has fulfilled their function and the law of this country mandates the court to take that penalty into account in assessing a suitable sentence.

I have also taken into account the petition by the complainants father Talalelei at a previous calling of this matter when he appeared personally and made a plea in favour of the defendant and confirmed that the defendant had performed the appropriate and required traditional ifoga or formal apology which their family have accepted.

Finally in the defendants favour as acknowledged by the prosecution is the fact that at 70 years of age, this is his first appearance on any offence. This clearly shows the offending was out of character but no doubt fuelled by the fires of alcohol.

I have considered the cases cited by the prosecution in support of their submission that a substantial imprisonment penalty must be imposed for this offence. I agree with them as stated by the learned Chief Justice in Police v Leifi [2005] WSSC 25 that the sentences imposed by the Court depend very much on the circumstances of each case with previous cases providing only general guidance. But that as a general rule this type of case normally attracts a term of imprisonment because of the seriousness of the offence. I have reviewed the other cases cited by the prosecution in their submission where imprisonment terms have been imposed by the court: Police v Fatu [2008] WSSC 39, Police v Sefo unreported 4 March 2008 and Police v Seleni unreported 25 February 2008. But I note that those cases were all cases involving an unprovoked assault which is not the case here.

The guiding considerations in sentencing grievous bodily harm cases were canvassed by the Court of Appeal in Chong Wong v Police [1980-1993] WSLR 451 where the Court of Appeal referred to the primary function for sentencing as being "to protect the community while at the same time acting with an appropriate measure of mercy that the circumstances would justify". Principles of reparation for the victim and rehabilitation of the offender were also referred to by the Court of Appeal as noted in Police v Tosoni & Matafeo (unreported) 28 November 2007 where I also reviewed the wide range of penalties the court has imposed in the past which only reinforces the comments in Leifi that the sentence depends very much on the circumstances of each case.

I have given this matter much consideration Tuitoga because of the seriousness of the circumstances and severity of the assault. While I accept as a general rule cases involving severe injury should receive imprisonment penalties I have decided to follow the approach I took in Tosini & Matafeo where I said:

"While I accept the general principle that grievous bodily harm normally attracts a penalty of imprisonment, I am mindful of the Leifi approach that the variation of circumstances means previous cases are guidelines only. The circumstances here in particular the degree of provocation displayed by the victim's behaviour on the evening in question in my view takes this case out of the normal custodial penalty range. But it still calls for a sentence commensurate with the seriousness of the offending and the injury sustained by the victim."

Accordingly the penalty imposed for this offending is as follows:

You will be convicted and fined $750.00, this sum is payable to the court office.

You will pay a further sum of $750.00 to the Probation Office that is your contribution to the victims medical and other associated expenses. This total sum of $1,500.00 is payable forthwith in default six (6) months imprisonment.

In addition you will pay $100.00 prosecution costs and $100.00 probation office costs also payable forthwith in default one (1) month for each unpaid $100.00.

O le upu mulimuli a le fa’amasinoga Tuitoga ua loa fo’i lou soifua, e lē tatau ona e toe a’afia i mataupu fa’atamaitiiti fa’apenei (sei tulou le fa’afofogaaga a le fa’amasinoga). Atonu o lou tula’i muamua lenei o lou tula’i mulimuli lenei i luma ole faamasinoga i so’o se solitulafono aua e le pō se lilo a toe aumai oe i se mataupu fa’apenei ia ua tatau loa ona fa’ata’atia atu se fa’asalaga fa’afalepuipui. Ae mo le asō o le fa’aiuga lena o le mataupu lenei.

JUSTICE NELSON