Police v Vesi [2014] WSSC 107 (24 November 2014)

IN THE SUPREME COURT OF SAMOA
Police v Vesi and Vesi [2014] WSSC 107

Case name:	Police v Vesi and Vesi
Citation:	[2014] WSSC 107
Decision date:	24 November 2014
Parties:	The Police (Prosecution) Kaisa Vesi (First Defendant) Vavao Vesi (Second Defendant)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Courthouse, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	For the defendant Vavao – Placed on Probation Service for a period of 18 months you will be under the supervision of the probation office. Special conditions of your supervision firstly 100 hours of community service; secondly no alcohol of any kind during your period of supervision; thirdly you will attend all programs as directed by the probation office. For the defendant Kaisa - On the charge of grievous bodily harm you will be convicted and sentenced to 18 months in prison. -
Representation:	L Sio and L Tavita for prosecution Unrepresented
Catchwords:	Serious bodily injury – fighting – threw stones – imprisonment term
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

THE POLICE
Prosecution

AND:

KAISA VESI male of Leauva’a-uta.
First Defendant

AND:

VAVAO VESI male of Leauvaa-uta.
Second Defendant

Counsel: L Sio and L Tavita for prosecution
Defendants unrepresented

Sentence: 24 November 2014

SENTENCE

1. These two defendants have pleaded guilty to causing serious bodily injury to the victim. The police summary of facts which they admitted this morning says the first defendant Kaisa Vesi is 30 years of age from Leauvaa-uta married with children and is a “fai fa’atoaga.” The second Vavao Vesi is his 19 year old brother single and works at a lawn mowing company. The victim is a 20 year old male of Leauva’a single and works at the lawn mowing company with the second defendant. The victim is the first cousin of the two defendants. His mother is the younger sister of the defendants mother. All these people live together on the same land at Leauva’a-uta but in different households.

2. The police summary of facts says on the night of Friday 04 April 2014 at about 10:00 p.m. the victims father Safai and the defendant Kaisa returned home after a drinking session. They were both drunk. They had dinner at Safais house. They got into an argument and began fighting resulting in Safai being injured by the defendant Kaisa. The fight was broken up and Kaisa left Safais house.
3. The victim came home and was told about the fight between Kaisa and his father. So he went out looking for Kaisa. He found and confronted him. Not only confronted but threw stones at him. This resulted in a fight between Kaisa and the victim. Kaisa got the better of the fight and his punches caused injuries to the victims face.
4. The summary also says that he used a rock to hit the victim in the face in particular the right eye part. Vavao also jumped in and assisted Kaisa in beating the victim. He used a rock to inflict the injury to the back of the victims head. People of the family quickly intervened and stopped the defendants from further beating the victim. The victim ran away lost consciousness and was taken to hospital by relatives for treatment.
5. The examining doctor at the hospital noted injuries to the victims right eyebrow and right face as well as lacerations to other parts of his head. The victim impact report says that the most serious injury was an injury to the victims right eye. That notes that the victim cannot see properly anymore out of his right eye. And at night he cannot see anything but only blurred light. The damage to the right eye is considered permanent damage.
6. Clearly the right eye injury was a substantial injury and represent a permanent loss to the victim. The victim impact report also notes the defendants and his family have reconciled with the victim and their side of the family. The victims side of the family has accepted the apology and the victim has forgiven the defendants for what they did to him. The court takes note of that but that is not where the matter ends. This is a case where the defendants used rocks to inflict serious injury and in respect of the right eye injury caused a permanent loss of vision.
7. It is clear Kaisa was the primary person involved in this assault. It was his strike that injured the victims right eye. Vavaos part was to join in the beating and use a rock to strike the victim on the head while he was on the ground. The law cannot ccondone this kind of behaviour.
8. I accept the victim to some extent started it by looking for and pursuing Kaisa and then when he found him throwing rocks at him. But that is no justification for the subsequent beating that he received from the defendants. Perhaps gentleman if this had been left at the fist fight stage you would not be facing imprisonment. But the matter escalated the minute you grabbed rocks leading to permanent injury to the victim. The message must be to you and to the general public that if you used a weapon such as a rock and you cause a serious injury you will likely go to jail.
9. I will deal with Kaisa who is the primary offender first. Considering all the circumstances of the matter Kaisa I agree with the prosecution a 3 year start point for sentence is appropriate. But I will make deductions from that for things you are entitled to. For your guilty plea one-quarter of your sentence a period of 9 months, leaves a balance of 27 months. You have a good background as per the pre-sentence report and a clean criminal record. You also have good references attached to the report from your pulenuu and from your Bishop. To reflect those matters I deduct 6 months from the balance, leaves 21 months. I note there has been a settlement within your family and the necessary apologies have been made and accepted. For those matters I deduct 3 months from the balance of your sentence, leaves 18 months in prison.
10. On the charge of grievous bodily harm you will be convicted and sentenced to 18 months in prison.
11. It is clear from what I have read that Vavao played a much lesser role in the matter. You are the younger brother, much younger than Kaisa. I have no doubt you went into the incident to assist your older brother. But you should have tried to stop it instead of helping assault the complainant. However I note your role in the matter Vavao. And the court has just sent your older brother to prison.
12. I am going to place you on probation and spare you prison. For a period of 18 months you will be under the supervision of the probation office. Special conditions of your supervision firstly 100 hours of community service; secondly no alcohol of any kind during your period of supervision; thirdly you will attend all programs as directed by the probation office.
13. Atonu e iai foi isi tu’utu’uga a le ofisa fa’anofo va’ava’ai e tatau ona fa’amalamalama atu i lau susuga Vavao ae te le’i alu ese ma le potu fa’amasino i le asō. Aua e te alu i se mea ae te le’i talanoa i le tamaloa lea. Le alii ofisa lea a le ofisa fa’anofo va’ava’aia e fa’amanino atu tulaga na ia oe. A’o tulaga autu na e 18 masina e te nofo va’ava’aia ai i lalo o le ofisa ma tuli ou itula faigaluega e selau (100) i lalo o le latou polokalame. E iai ma latou polokalame atonu e aoga ia oe. A fa’atonu atu oe e te sau iai usita’i iai. O mea ia e le’o faia mo nisi tagata o lea e taumafai mo oe ona o lou a’afia i mea fa’apenei. Usita’i i ai, aua a e le usita’i iai e mafai ona toe aumai oe e le ofisa i luma o le fa’amasinoga. Ia masalo o lena e te silafia a toe aumai oe i luma o le fa’amasinoga ua ese loa le tulaga ua tatau ona tatou la’asia. Ua manino le fa’aiuga o lau mataupu Vavao? (Defendant indicated he understood). Fa’afetai ua maea.

JUSTICE NELSON