Police v Ulberg [2010] WSSC 29 (29 March 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

EDWARD ULBERG
male of Vailoa Faleata.
Defendant

Counsels: Mr M. Lemisio for the prosecution
Defendant unrepresented

Sentence: 29 March 2010

SENTENCE

Edward is one of two people charged with assaulting and robbing the victim taxi driver. There were aspects of the police summary of facts that the defendant disputed but he accepted the following:

1. he threw a bottle at the complainant;

2. he smashed the front windscreen of the complainants taxi; and

3. he stole the vehicles wheelcaps as well as its taxi sign.

The court has heard from the complainant who testified that he was asleep in the early hours of the morning of 7 November 2009 under a street light at Vailoa Faleata. His vehicle was parked on the side of the road. While the complainant denied it there is evidence that he did this because of a combination of alcohol and fatigue. The complainant was adamant however that he did nothing to provoke the assault that was to occur on him. An assault that was occasioned by the defendant and allegedly his co-defendant friend.

Having seen and heard the witnesses I find that assertion by the complainant difficult to accept. I prefer the version given by the defendant to the Probation Office which was that the co-defendant who is his cousin and the complainant were fighting and he intervened in order to assist his cousin. What he did was to throw a bottle at the complainant and then to go on and damage the complainants taxi.

The medical report before the court shows that the injuries to the complainant were severe. According to paragraph 10 of the summary of facts, the injuries included a cut above his left eye which required six stitches, another cut to the jaw which required three stitches plus a cut to the left elbow which required nine stitches. In addition to that, x-rays determined that the complainants jaw was fractured and required to be wired. All these injuries are consistent with what the defendnat says that he struck the complainant in the face by throwing a bottle.

It is also clear that the damage caused to the taxi of the complainant was significant. The taxi does not belong to the complainant but its owner told the Probation Office that repairs cost in excess of $2,000. Only $300 of this has been made good by the defendants family. The complainants medical expenses he testified were around $50. He also lost his licence which cost another $50 to replace and his further evidence was that he had $60 in cash stolen by the boys that night.

As a result of all this the defendant now appears for sentence on charges of grievous bodily harm and robbery. The maximum penalty for grievous bodily harm is seven years in prison and for robbery ten years in prison. I have considered your case carefully Edward because you are only a young man. But this assault is far too serious for you to be able to avoid a prison sentence. It is clear the defendant either alone or in the company of the co-defendant was intoxicated and in a drunken rage they attacked the taxi driver and his taxi and if people did not come to the rescue of the complainant who knows where this would have stopped. It must be made clear from the courts sentencing that attacking another person with a weapon such as a bottle or a rock causing substantial injuries will almost always lead to prison. There is far too much of this sort of behaviour in our community especially involving young people and alcohol late at night.

The prosecution has also asked that the court consider this as a two-on-one attack, two people attacking one victim and they have sought a penalty of three years in prison. I do not agree with the prosecution, it cannot be regarded as a two-on-one attack because the co-defendant has pleaded not guilty and is therefore denying any responsibility in this matter. The only one who has pleaded guilty is Edward and he stands alone for what he has admitted he did.

I take into account the fact that this is your first offence and that you pleaded guilty and to some extent you were going to help your cousin in this matter. If you had just punched the taxi driver there may have been room for leniency but you went too far, you went overboard and you not only assaulted the taxi driver but proceeded to smash up the taxi. Then steal parts of it.

An appropriate start point for grievous bodily harm sentencing in this matter would be 4 years in prison. I deduct from that one-third for your guilty plea. I will give you full credit for your guilty plea because you did have a basis for challenging the summary of facts. For the fact that you are a first offender I deduct 12 months or a period of 1 year. That leaves a balance of 20 months. For the fact that there has been partial atonement in restitution by your family I deduct a period of 6 months, that includes a period allocated for the other mitigating factors raised in your favour by the Probation Office. That leaves a period of 14 months. The defendant is convicted and sentenced on the charge of grievous bodily harm to 14 months in prison. On the charge of robbery, considering the value of what was stolen this is the lesser of the two offences, for that you are convicted and sentenced to 6 months in prison but this term is to be served concurrent with your other term of imprisonment. Given your age I recommend to the police that you serve your term at the Olomanu Juvenile Facility if that is appropriate.

JUSTICE NELSON