Police v Lealasa [2013] WSSC 69 (2 September 2013)

SUPREME COURT ONE

Police v Lealasa [2013] WSSC 69

Case name: Police v Lealasa

Citation: [2013] WSSC 69

Decision date: 2 September 2013
Parties:
POLICE (prosecution) and FAAIFO LEALASA male of Saleilua, Falealili (accused)

Hearing date(s):

File number(s): S1499/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:
Representation:
F E Niumata for prosecution

Catchwords:

Words and phrases:

Legislation cited:

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

FILE NO: S1499/13

BETWEEN

P O L I C E

Prosecution

A N D

TAGATAESE LEALASA male of Saleilua, Falealili.

Accused

Counsel: F E Niumata for prosecution

Accused in person

Sentence: 2 September 2013

S E N T E N C E

The charges

1. The accused Tagataese Lealasa appears for sentence on the charges of causing actual bodily harm, contrary to s.119(1) of the Crimes Act 2013, which carries the maximum penalty of 7 years imprisonment and of being armed with a dangerous weapon, namely, a stone, contrary to s.25 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. To both charges the accused pleaded guilty at the earliest opportunity.
2. Even though the expression “dangerous weapon” is not defined in the Police Offences Ordinance 1961, I am of the clear view that a stone can be a “dangerous weapon” in terms of s.25 of the Ordinance. Perhaps the offence of throwing a stone at a person under s.26 of the Ordinance could have been relied upon if there was any doubt whether a stone is a dangerous weapon.

The offending

3. According to the prosecution’s summary of facts, this incident occurred on Saturday, 1 June 2013. That was a public holiday for Independence Celebrations. The victim had been drinking with his wife’s brother and two other people at the house of the victim at Saleilua, Falealili. After their drinking session, the victim walked his brother in law to his house which is at the other end of the village. Both men, particularly the brother in law, were under the influence.
4. Along the way, the victim and his brother in law passed the village bus stop where the accused and a cousin were drinking. The victim then punched the accused’s cousin after he uttered words to the victim. The victim then also punched the accused but missed. Bystanders intervened and took the victim back to his home. However, the victim, instead of remaining at his home, later returned to the village bus stop where the accused and his cousin were still drinking. Upon seeing the victim, the accused picked up a stone and threw it at the victim hitting the victim on the left ear. The victim fell down while the accused ran away.
5. The victim stood back up and returned home. He had sustained an injury to his left ear. He was later taken the same night to the Poutasi District Hospital where his injury was given five stitches.
6. According to what the accused told the probation service, this incident occurred around 11.30pm on Saturday night, 1 June 2013. He was drinking a large bottle of vodka with his cousin at the village bus stop. The bottle of vodka was half full when the victim unexpectedly appeared and punched his cousin making his cousin momentarily unconscious.

The victim impact report

7. The victim impact report prepared by the Office of the Attorney General shows that the victim sustained an injury to his left ear which required five stitches but he suffered no psychological effects as a result of this incident.
8. The victim impact report also shows that on the day after this incident, the accused and his father went to the house of the victim and apologised to the victim. The apology was accepted by the victim so that this matter has been reconciled and everything is back to normal. The victim has also forgiven the accused.

The accused

9. The accused is 21 years old. He is single and works as a mechanic in a mechanical workshop in his village. He had a good education. He reached the National University of Samoa but left the university after his first year due to financial difficulties.
10. The accused is a first offender. His father told the probation service that the accused is a good, responsible, and reliable person in their family. Their family depends on him. He also does not smoke but usually drinks with his cousins on weekends. The testimonial from the pastor of the accused’s church shows the accused as a person who enjoys going to church. He is also a Sunday school teacher, a member of the church choir, and the leader of the church youths. The testimonial from the pulenu’u of the accused’s village shows that the accused is serving his village well through the aumaga (the village group of untitled men).

The aggravating and mitigating factors

11. The aggravating factors in relation to the offending are the use of a store by the accused to throw at the victim and the resulting injury to the victim’s left ear which required five stitches. The mitigating factors in relation to the offending are that it was the victim who provoked this incident by punching the accused. Then after bystanders intervened and took the victim home, he later returned to where the accused was drinking with his cousin. This was also provocative on the part of the victim. The victim has also suffered no psychological effects as a result of this incident.
12. In relation to the accused as offender, there is no aggravating factor personal to the accused. But there are mitigating factors personal to the accused. The accused is a first offender and had been a person of character prior to the commission of this offence. The accused is also still at the relatively young age of 21 years. The accused and his father also went and apologised to the victim the day after this incident. The victim accepted the apology and forgave the accused. So there has been a reconciliation and everything is back to normal.
13. Furthermore, according to the pre-sentence report, the father of the accused told the probation service that his family had actually performed an ifoga to the victim and his family which was duly accepted. The victim confirmed this ifoga to the probation service and said that he wants to withdraw this matter as he has now realised that he is related to the accused. I am somewhat surprised that this ifoga is not mentioned in the victim impact report obtained from the victim.

The decision

14. In weighing up the aggravating and mitigating factors relating to the offending and the accused as offender, I have decided not to impose a custodial sentence but to give the accused the chance to redeem himself whilst he is still a young man with his future before him. But I must warn the accused to take seriously the chance given to him to redeem himself because if re-offends, he will run the real risk of going to prison.
15. The accused is sentenced to 12 months probation on both charges against him and ordered to pay costs of $100 to the prosecution.
    

CHIEF JUSTICE

Solicitor

Attorney General’s Office, Apia for accused