Police v Tauese [2011] WSSC 126 (26 September 2011)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

THE POLICE
Informant

AND:

FITI TAUESE male of Satitoa Aleipata.
Defendant

Counsels: Ms T Toailoa and F E Niumata for prosecution
Defendant unrepresented

Sentence: 26 September 2011

SENTENCE

Two charges were originally filed against this defendant. One count of attempted murder and one count of grievous bodily harm. The police have applied to withdraw the attempted murder information on the grounds of lack of evidence. That application is granted, that information S1888/11 is accordingly withdrawn and dismissed. It remains therefore for the defendant to be sentenced on the remaining charge of causing grievous bodily harm which carries a 7 year maximum penalty.

The summary of facts which the defendant has accepted says that he is a 27 year old male of Satitoa Aleipata, single and lives with his family at Satitoa. He is a good provider for his family being one involved in the seasonal work scheme in New Zealand and has a number of people including his parents in respect of whom he is the bread winner. He has a good probation office pre-sentence report which fully sets out his personal situation and circumstances.

The summary says that the victim or the complainant in this matter is a 25 year old male also of Satitoa village, lives in a de facto relationship with one son. He too is a bread winner for his family and has normal family responsibilities. His victim impact report indicates that these have suffered as a result of the offending in this case and the injuries inflicted on him by the defendant.

The facts of the case are that on Saturday night 16 July this year the victim and some friends were on the seawall at Satitoa across from the Government Wharf drinking alcohol. Across the road was another group of young men also drinking alcohol and in that group was the defendant. Once the victim and his group had finished their bottle of alcohol, they walked over to the defendants group. The summary says that the victim approached the defendant who was sitting nearest to them and asked the defendant "who are you?" It is not clear why the victim asked this question but we are all aware of the provocative nature of such a question. The defendants response was to punch the victim in the face and the two men began fighting.

The summary suggests that the trigger to the incident was the victims question. But the probation office pre-sentence report is a bit more detailed and suggests there is a bigger history to the argument and there were words exchanged before the victim and defendant began fighting. I have no doubt that it is more likely that it was these comments probably insults one to the other that precipitated this incident.

The defendants younger brother was also involved in the incident and he intervened to try to calm matters down. Other members of the various groups also broke up the fight and the victim and his friends left the scene. Had Fiti left the matter alone at that stage, he would not be sitting in that dock today facing prison. But instead Fiti, fueled by alcohol took matters to another level. He went to his uncles house, fetched a sapelu, and followed the victim. That was Fitis big mistake because then like the Titanic he became launched on a course of self-destruction.

The summary states that the victim and his friends walked towards the victims house still within the precincts of the village of Satitoa. The defendant caught up with them and with sapelu in hand challenged them to a fight. The victim turned to the defendant and the defendant struck the victim with the sapelu. The victim put up his left arm to defend himself from the strike and the sapelu hit his left hand causing the victim to fall down unconscious onto the road. There is a suggestion that the victim also suffered a head injury but it is not established to my satisfaction that the sapelu wielded by the defendant directly caused that head injury as opposed to his falling onto the road. Members of the victims group continued to scuffle with the defendant and the fight was eventually broken up by people coming on to the scene. The victim was taken to hospital.

The medical report on the victim shows that he suffered the following injuries: laceration to the scalp requiring 3 to 4 stitches, laceration to his left forearm which required 6 stitches, associated with that was a fracture of the underlying bone. The defendant was arrested that night at his home and on the following morning was interviewed by the police and he admitted being the one who assaulted the victim. At the first calling of this charge the defendant pleaded guilty to grievous bodily harm for which he now appears for sentence.

Grievous bodily harm is a serious offence as evidenced by the 7 year maximum penalty given to it by our lawmakers. Fitis case is not the first of a grievous bodily harm to come before the court, there are many previous cases. Of these the Chief Justice said in Police v Leifi [2005] WSSC 25 and I quote:

"The circumstances of cases of willfully and without lawful justification causing grievous bodily harm which has come before the court are so varied and diverse that it has not been possible to set a tariff for this kind of case. Sentences imposed by the court have depended very much on the circumstances of each case with previous cases providing only general guidance. One thing which can be said with confidence is that this type of case however normally attracts a term of imprisonment."

The prosecution sentencing memorandum refers to some of these previous cases Police v Iosia [2006] WSSC 3 where three strikes led to a penalty of 3 years in prison. In Police v Tuitama [2005] WSSC 22 which was a strike which almost severed the thumb of the pregnant female complainant, it resulted in a penalty of 2 years 9 months. And Police v Tauai [2010] WSSC 23 which netted sentences of 2 and 3 years in prison.

This case highlights in my view two very important factors. The first is the dangers of drinking in public places such as the side of a main road which is something that is unfortunately a common sight. It is something to be discouraged by all Alii and Faipule who are responsible at grass roots level for keeping order in any village. Here not one but two groups of youths were drinking on opposite sides of the road. Why the village council of Satitoa allowed this to happen has not been explained by anyone in the material before me. They were certainly quick to impose a penalty on the offender but this could have all been avoided by rules prohibiting roadside drinking as is common in many villages in our country. Together with the imposition of a curfew or "vavao" as is the practice of many villages. These are inbuilt mechanisms of our custom and tradition that some village councils practice but some do not but would have prevented this sort of case. Would also possibly have prevented the sort of case that occurred recently of a man being killed in an urban Apia village by a group indulging in roadside drinking.

This case also highlights the problem of excessive alcohol consumption. The Editor of the Samoa Observer Mataafa Keni Lesa wrote a very good editorial in their edition of the 17th of September about that particular death and the part played by alcohol in that and other like cases. He appropriately titled the editorial "The curse of the bottle". Both this court and the District Court week in and week out warn of the dangers of excessive alcohol consumption. And the dangers of selling alcohol in what appears to be a very poorly regulated manner. All one needs it would seem is a permit and you can sell alcohol from any village store to anyone who comes along. And the ready availability of extremely high alcohol spirits at ridiculously cheap prices is a clear incentive and invitation to the public to get drunk cheaply. The best value for your money it would seem nowadays is not beer but the cheap spirits in plastic bottles you can buy almost anywhere. And the merchants have made it very easy for you and I, if you cannot afford the large size they have a medium size, a small size and even a pocket size. Anything to fit your budget.

I can only echo the comments of the editor of the Observer in his editorial when he said:

"When is this country going to wake up and acknowledge that we've got a drinking problem? How many more people need to die until we decide to do something?

We need to look at the laws governing alcohol consumption. We must also look at the promotion of alcohol. And examine the advertising campaigns that make alcohol look so attractive and the big corporates that promote them."

Mr Keni asks the question "where does the push for the corporate tala stop and moral obligation begin?" I ask the question "does anyone care enough to at least investigate and look into the matter?" Irresponsible consumption of alcohol has been a problem in our society for so long and yet very little seems to be done about it.

Given the seriousness of the circumstances of your case Fiti and your use of a lethal weapon namely a sapelu to cause serious injury, you cannot escape a prison sentence. But that term is mitigated by factors which are in your favour as follows: the fact that you are a first offender and you have previously not been in any trouble; the fact that you have pleaded guilty to the charge against you and have thereby saved the courts time and resources and the need for a trial; it is also in your favour that an apology has been extended to the victims family by your family on your behalf; and that your village council has imposed a penalty on you and your family which has been confirmed by the probation office to have been paid and settled. I also accept Fiti that you are remorseful in accordance with your apology to the court this morning. All these factors have the effect of reducing what would otherwise be a penalty of 3 to 4 years in prison to one of 18 months.

You are convicted and sentenced to 18 months in prison in respect of this charge.

JUSTICE NELSON