Police v Pelosi [2013] WSSC 84 (15 October 2013)

SUPREME COURT OF SAMOA

Police v Pelosi [2013] WSSC 84

Case name: Police v Pelosi

Citation: [2013] WSSC 84

Decision date: 15 October 2013

Parties:
POLICE (prosecution) and TITA’E PESAMINO PELOSI (accused) male of Afega.

Hearing date(s):

File number(s): S1996/13

Jurisdiction: CRIMINAL

Place of delivery: MULINUU

Judge(s): CHIEF JUSTICE PATU FALEFATU SAPOLU

On appeal from:

Order:

Representation:
F E Niumata and O Tagaloa for prosecution
Accused in person

Catchwords:
Sentence, causing actual bodily harm with intent, maximum penalty, aggravating and mitigating factors, starting point for sentence

Words and phrases:

Legislation cited:
Crimes Act 2013 s.119 (1)

Cases cited:

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

FILE NO: S1996/13

BETWEEN

P O L I C E

Prosecution

A N D

TITA’E PESAMINO PELOSI male of Afega.

Accused

Counsel: F E Niumata and O Tagaloa for prosecution

Accused in person

Sentence: 15 October 2013

S E N T E N C E

The charge

1. The accused Tita’e Pesamino Pelosi appears for sentence on one charge of causing actual bodily harm with intent, contrary to s.119 (1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. To the charge the accused pleaded guilty at the earliest opportunity.

The offending

2. This incident occurred on Tuesday night 10 September 2013 at around 7:00pm. The victim and his family were having their evening meal when the accused, who is related to the victim, walked into the house and called out ‘Levaopolo’, which is the victim’s name. The victim turned to see who was calling him. At that time, he was hit on the face from behind with a beer bottle. The victim fell to the floor and lost consciousness. The accused then delivered kicks and punches to the victim. Members of the victim’s family intervened and pulled the accused away.
3. The victim was then taken to the hospital the same night. His left nostril (left opening of the nose) was torn downwards and required stitches. The right side of his abdomen was also bruised from the kicks and punches by the accused. The accused was apprehended by the police the same night and kept in custody. The next morning he was cautioned and interviewed by the police. He admitted to assaulting the victim due to a family grudge he had against the victim since 2008.
4. In the pre-sentence report, the accused told the probation service that he had been selling drinks and snacks around town. He then drank two large bottles of beer before he returned home. When he walked past the victim’s house he saw the victim inside his house. He then went to his house, had a shower, went with a bottle to the victim’s house, and hit the victim’s face with the bottle. He then delivered ten punches to the victim. The accused also told the probation service that he was angry because the victim had threatened to have him banished from their village. That must have been in 2008.

The victim

5. The victim is 52 years old. He and the accused are cousins. As it appears from the victim impact report, not only was the victim’s left nostril torn but one of his upper teeth was broken. He now has difficulties eating because he can no longer eat anything hard like biscuits or baked taro as it hurts his teeth. He also now feels pain on his right side when he coughs.
6. There has been a reconciliation of this matter between the victim and the accused. The victim also told the Office of the Attorney General which prepared the victim impact report that he told the accused that he has forgiven him but he still wants this matter to proceed to Court.

The accused

7. The accused is 32 years old. He earns his living by selling drinks and snacks in town. He is a first offender but there is nothing before the Court about his previous character. He has also apologised to the victim and has pleaded guilty to the charge against him at the earliest opportunity.

Aggravating and mitigating factors

8. The aggravating features of this offending are the use by the accused of a bottle to hit the victim on the face while having his evening meal and then continuing to kick and punch him while he was lying unconscious and defenceless on the floor. This was a brutal attack. If the reason for the accused being angry was because the victim had in 2008 threatened to have him banished from their village, then I would not consider that to be provocation because that was five years ago and the mode of retaliation is also out of proportion. In other words, I consider this assault on the victim to have been unprovoked. The impact of the offending on the victim is another aggravating feature of this offending. There is no mitigating feature of the offending.
9. On the other hand, there is no aggravating feature relating to the accused as offender. But there are mitigating features personal to the accused. He has apologised to the victim and had pleaded guilty to the charge against him at the earliest opportunity.

Discussion

10. Having regard to the aggravating features of the offending, there being no mitigating features in this regard, and the need for deterrence in this type of offending, I will take 10 months as the starting point for sentence. I will deduct one month for the accused’s apology to the victim. That leaves 9 months. I will deduct a further 3 months for the plea of guilty at the earliest opportunity. That leaves 6 months.

The result

11. The accused is convicted and sentenced to 6 months imprisonment. Any time he has already spent in custody is to be further deducted from that sentence.
    

CHIEF JUSTICE

Solicitor

Attorney General’s Office, Apia, for prosecution