Police v Sauafea [2012] WSSC 20 (6 February 2012)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

THE POLICE
Informant

AND:

SWINGLE SAUAFEA male of Magiagi.
Defendant

Counsel: Ms L Taimalelagi for prosecution
Mr T S Toailoa for defendant.

Sentence: 06 February 2012

SENTENCE

The defendant is a 33 year old, single male of Magiagi who works on a cattle farm inland of Apia. He appears for sentence on three charges of causing grievous bodily harm which carries a 7 year maximum penalty each charge. The first charge arises out of an incident on the night of 01 April 2011 and having heard the victim and the defendant testify, I am satisfied the defendants account is the more credible as to what happened. He said that on that day he returned home from work and was having a beer at the house he had been charged with looking after. The defendant who was not known to him and the defendants friend who was then arrived intoxicated with an almost empty bottle of vodka plus a full bottle of vodka. The three men then partied together with the victim serenading on his guitar. But as the party wore on the defendant became annoyed at the victims manner and described in his evidence as "seu".

This eventually led to the defendant chasing the two boys out of the house. But the two men did not leave the property and instead they continued drinking and making a lot of noise outside. Again the defendant chased them away but they refused to go. At some stage the victim kicked in the door of the house which angered the defendant. He dragged the victim outside and assaulted him causing the victim to lose consciousness and leading to the victims friend beating a hasty retreat from the property. The defendant grabbed the full bottle of vodka and left the property and went to continue drinking with his own friends.

Later when the now drunk defendant returned he found the victim still comatose. He said that the victim awoke by himself but I do not accept that. I believe the victims account is more accurate that the defendant punched him causing him to wake up from his comatose stage. The defendant denied using a knife to stab the victim in the eye as alleged in the police summary of facts. But I accept the defendants evidence that he kicked the victim in the mouth causing him to fall onto the concrete steps and that may be how his eye became injured. While there is no victim impact report filed it is clear from my observations the victims eye area and his eyelid were disfigured by the assault. I will deal with this charge first.

While it is correct that the victim provoked the assault, this was a serious assault on the part of the defendant. It caused significant and probably permanent damage. For which a 2 to 3 year term would be quite appropriate. However the defendant as defence counsel has reminded me is a first offender and his admission to the probation officer of another charge is not evidence of a previous conviction. Indeed the police have not pursued the issue of a previous conviction. The defendants guilty plea is also in his favour. His personal circumstances are set out in the probation office pre-sentence report which also refers to a decision by the defendants village to banish him. Probably not only for this offence but in relation to the other offences the defendant is facing sentence for. Accordingly for this particular charge Swingle you will be convicted and sentenced to a term of 12 months in prison.

The other two charges arise out of an incident that occurred on the night of 20 May 2011. It is disconcerting that incident occurred two days after the defendant had been remanded on bail for the first matter. It shows an apparent unconcern for the fact that he had already been charged with a serious criminal offence and perhaps also shows what is hinted at in his background outlined in the pre-sentence probation office report and what seems clear from his action in relation to these offences, namely that he has a violent temper which is prone to explosion when prodded.

Again because there is some dispute as to exactly what the defendant did the prosecution elected to call the victims of those two matters. But the difficulty with the evidence of the first of those two victims namely Leo'o Peau is that he was unable to identify his assailant as he was ambushed from behind. The defendant however pleaded guilty to causing grievous bodily harm to Leo'o and Leo'os medical report indicates that he suffered a multitude of injuries. Which included a comminuted fracture of his left mandible which required plates to be inserted. It also resulted in him needing dentures to replace damaged teeth. As well the report refers to lacerations to his face, head and back and extensive treatment over a period of three to four weeks. There can be little doubt that these injuries caused this victim who is 60 years of age much pain and distress.

As to the circumstances wherein the injuries arose in the absence of any other reliable evidence I accept the defendants account to the probation office and to his counsel. Which is that at the relevant time he had been banned from rowing on the village fautasi team because of the first charge and had been demoted by his team to the position of cook. As he was asleep on the night in question he was woken by his mother and sent across the road to ask them to keep down noise that was being made because there was a party in progress. Suggestion in the probation office report is that he did not get much sleep because of the party and that when he awoke early the next morning he took a pair of kitchen knives to carry out his duties as cook for the fautasi team.

He reached the main road and met up with the first victim Leo'o Peau who suddenly grabbed him by the neck of his shirt. He retaliated by striking Leo'o with the "lau" of his knife which is consistent with the injuries that Leo'o suffered. There is also no doubt that he also carried out other assaulting actions on Leo'o which led to the injuries listed in that gentlemans medical report. The commotion attracted other people to the scene including the third victim. He came armed with a stick and he said in his testimony that he struck the defendant causing the stick to break. For him it had the unfortunate result of causing the defendant to turn his attention to him and assaulting and inflicting serious injuries upon him. These injuries are detailed in this victims medical report as well as photos attached to the prosecution summary of facts. These show that this 62 year old victim lost a few teeth and suffered a split upper lip as well as other bruises and lacerations.

The prosecution are seeking lengthy terms of imprisonment for both these assaults and are requesting cumulative terms because they involved different victims even though they may be seen from one perspective as part of an ongoing incident. In respect of the first assault I accept a lengthy term is required commensurate with the circumstances and the use by the defendant of a weapon albeit the blunt side of the knife. The penalty must also reflect the severity of the assault as indicated by the victims injuries.

The prosecution seek a 4 year term. There is plenty of case precedent to justify their request. But I consider 4 years excessive and it is more appropriately the start point for sentence. From it should be a deduction for the defendants guilty plea. In this respect I note the prosecution did not need to call this victim because his evidence failed to establish the strike was from the sharp end of the knife as alleged in their summary of facts. The injuries of this victim are more consistent with defence counsels submission that the "lau" of the knife was used but that the assault was accompanied by other blows.

As the defendant was a first offender at the offence date he is entitled to be treated as a first offender notwithstanding the earlier incident that occurred first in time. Credit must also be given to him for the ifoga presented by his family to the victims family as confirmed in the probation office pre-sentence report and by the village while the victim was in hospital. The victim impact report also states that this victim has forgiven the defendant despite the extreme nature of his wounds. I also take account of the banishment of the defendant from his village. Accordingly in respect of this charge I reduce the penalty to a term of 2 years in prison to be served cumulative to the penalty in respect of the first charge.

In respect of the third grievous bodily harm charge I accept that the victim in that case struck the defendant first but the defendants retaliation was excessive and disproportionate on a gentleman 30 years his senior. Here again serious and permanent injuries were the result. A 12 months sentence for that matter is in my view quite appropriate and because that involves a separate victim and a separate assault it is also appropriate that penalty be cumulative to the previous terms imposed.

All in all Swingle this means that you will for these assaults serve a total term of 4 years in prison. I consider from the perspective of totality of sentence that is justified by the circumstances and properly takes into account factors in your favour. And that the penalty therefore needs no further adjustment either way.

The prosecution summary of facts refers to a final charge of threatening words which is information S572/11 of threat to kill Lautipolo Leilua who was the wife of the third victim. She accompanied her husband to the scene. Although the defendant said in his oral evidence to the court that he did not see the third victim, only his wife and that it was his wife who assaulted him. This is not consistent with what he told the probation office or his guilty plea to causing grievous bodily harm to Maie. I am satisfied the final charge to which he pleaded guilty then of threat to kill is sustained. He is convicted and sentenced to 3 months imprisonment on that charge. But that term is to be served concurrent to information S860/11 which is the grievous bodily harm information on the third victim. That means Swingle for that final charge there is no increase to your term of imprisonment.

Defendants remand in custody time is to be deducted from his sentence.

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