Police v Pita [2012] WSSC 19 (6 February 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

FILIFILI JUNIOR PITA male of Vaigaga.
Defendant

Counsel: Ms L Taimalelagi for prosecution
Ms T Leavai for defendant.

Sentence: 06 February 2012

SENTENCE

The defendant faces two charges one of grievous bodily harm committed on Toma Toma his cousin and one of assault committed two days later on Esau Iakopo a boy of his village of Vaigaga. In respect of the first matter the evidence establishes that the defendant Toma and other boys had an all night drinking session at the house of a relative. During which they consumed at various times vodka and beer. The vodka being of the poorly labelled jet-fuel variety that is commonly sold in this country. As often happens when such excessive drinking occurs it turned violent.

During the party the defendants money and cell phone went missing and members of his group told him it was the victim who took it. He searched for the victim and found him passed out elsewhere on the premises. He grabbed a length of timber and hit the victim with it waking him up. A second strike was parried by the victim causing the timber to break and the victim ran off. But instead of going home he stopped turned around taunted and challenged the defendant before running off again. The defendant followed the victim to his house where he assaulted him again but this time using only his fists. The assault was stopped by members of the victims family and the victims brother later returned the defendants money and cell phone telling him that he found these in the victims pocket. This of course does not necessarily establish the victim took the cell phone and money a fact denied by the victim in his oral evidence. But that was certainly the defendants impression based on information he had been given.

The victim was taken by relatives to the National Hospital where he was treated for a fractured jaw on the right side together with damaged teeth and other associated injuries. The victim for the four weeks or so period of recuperation underwent pain and discomfort from the injuries.

The defendant has through his counsel denied striking the victims face with the timber. But whether the injuries were caused by the defendants fists or from the length of timber there is no doubt the defendant was responsible for the victims injuries. In particular the fractured jaw is more consistent with a timber strike although fists can also cause jaw factures in some cases.

I accept there was cause for the defendant to be angry but his actions were excessive and unnecessary. I have no doubt they were fueled by the alcohol he had consumed. The defendants counsel has pleaded strongly in mitigation for her client and has pointed to how the defendant has reformed and tried to turn his life around. That is all positive stuff and the defendant is encouraged to continue his efforts. And if he does indeed have a drinking problem then the best advice is if you cannot drink responsibly best to leave it alone.

It is also to the defendants credit that he subsequently personally apologised to the victim and the victims parents and a sum of $200 was according to the probation office pre-sentence report paid to the victim as some form of compensation. The matter has been settled and the probation office report said that both men have forgiven each other and are ready to move on. But before the defendant can move on he must pay a penalty for the assaults that he carried out.

Many cases have come before the court involving fractured jaws and the penalties have varied from suspended sentences to monetary penalties to lengthy terms of imprisonment. It shows the wide variety of circumstances and offenders. The difficulty with your case Filifili is that a weapon was used. Had a weapon not been involved the court may well have been able to consider a non-custodial penalty as urged by your counsel. But because a plank of timber was used the court must be consistent in its policy in cases involving the use of weapons by one person to assault another. Deterrence in such cases is the primary focus above all else and the courts message must be clear and unambiguous. You resort to a weapon you can almost guarantee jail time.

The maximum penalty for grievous bodily harm is 7 years as stated. An appropriate starting point for your matter is 4 years in prison. But as pointed out by your counsel you are entitled to certain deductions by law. For your guilty plea a term of 12 months is deducted leaving a balance of 3 years. For the fact that you are a first offender and the fact of the apology and the money paid as compensation a further 12 months is deducted leaving a balance of 2 years. I accept you were acting under the belief that this man had stolen your property and while that is not excusable that is evidence of provocation by the victim. For that matter I deduct a further 12 months leaving a balance of 12 months in prison. For the grievous bodily harm charge the defendant will be convicted and sentenced to 12 months in prison.

In respect of the second charge of assault the facts as established showed that the defendant and the victim of that matter were part of a group drinking in front of a village store. The victim it appears is a "faafafine" and the defendant said the victim made advances upon him and touched him. This angered him. Causing him to punch the victim on the jaw causing the victim to fall onto the road unconscious. Although the victim in her evidence denied all these I find the defendants account is more believable than the victims insistence that this was a completely unprovoked attack.

The victim was taken to hospital treated and discharged which indicates she suffered no serious injury. The victims victim impact report says different but I reject that in the absence of a medical report. And in view of the fact that the victims own testimony was that he was not admitted to hospital. It may have been otherwise if a proper medical report has been produced to establish the extent of the victims injuries as asserted in the prosecution summary of facts. On this second charge of assault the defendant will be convicted and discharged without penalty.

. .........................
JUSTICE NELSON