Police v Fepuleai [2015] WSSC 105 (21 September 2015)

IN THE SUPREME COURT OF SAMOA
Police v Fepuleai [2015] WSSC 105

Case name:	Police v Fepuleai
Citation:	[2015] WSSC 105
Decision date:	21 September 2015 (sentence)
Parties:	Police (prosecution) and Aiga Fepuleai, female of Falelauniu and Manono (defendant)
Hearing date(s):	10 September 2015
File number(s):	S2263/15, S2264/15 and S2265/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Vaai
On appeal from:
Order:	The Court will exercise the power provided by section 104 Criminal Procedure Act and discharge the defendant without conviction. A condition of the discharge is that the defendant will pay the cost of prosecution of $1,000 tala.
Representation:	F Lagaaia for prosecution I Sapolu for defendant
Catchwords:	Actual bodily harm – armed with dangerous weapon – found guilty after defended hearing – exercised maturing and common sense – exercised power provided by section 104 of Criminal Procedure Act – discharged without conviction.
Words and phrases:	Gravity of the offence – consequences of conviction
Legislation cited:
Cases cited:	Criminal Procedure Act Fisheries Inspector v Turner Police v Papalii and Moalele Pale v Attorney General
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

AIGA FEPULEAI female of Falelauniu and Manono
Defendant

Counsel: F Lagaaia for prosecution

I Sapolu for defendant

Sentence: 21 September 2015

S E N T E N C E

1. The defendant appears for sentence on charges of actual bodily harm and being armed with a dangerous weapon of which she was found guilty after a defended hearing.
2. My written ruling has been issued and stated my findings of the facts on which I will base my sentence this afternoon.
3. Essentially on the evening of the day that the Manu Samoa played the All Blacks, the game was re-televised on TV One. After watching the game, the complainant and her daughter Vanessa went to bed together with other members of the household. Vanessa is the wife of Howard. The defendant is the mother of Howard. Howard and Vanessa were living together with Vanessa’s mother at Ululoloa on the day in question. The mother of Howard was living not far away at the village of Falelauniu. On the evening in question after the rugby match, Howard went out drinking and came home late drunk when everyone was asleep. Vanessa got up to prepare some food for him, Howard after eating retired to bed.
4. At about the same time Vanessa’s mother, the complainant, was walking out of her bedroom to go to the bathroom; she asked Vanessa why she was still awake. As the complainant entered the bathroom Howard got up and questioned Vanessa about her mother, but Vanessa did not bother to reply. Howard then grabbed the plastic chair close by and pushed it across the floor, he also started to swear loudly. He also grabbed the portable speaker from a desk and smashed it to pieces by throwing to the floor. He was still swearing when the complainant returned from the bathroom and when questioned by the complainant as to whom he was directing his swearing at, Howard said it was her.
5. In response, the complainant swore back at Howard and they continued swearing to each other. Howard then punched the complainant on the face causing her to fall on the floor. She was assisted to her feet by Vanessa. The complainant then picked up the chair and struck Howard.
6. Howard managed to get the car keys and he told the complainant and others he will go and get his mother. He did go and he did return with his mother, the defendant. Also in the car were two adult females and two males and when the car stopped and doors opened the accused walked direct to the complainant demanding why her son was beaten.
7. She reached for the complainant but the neighbours and others including Vanessa attempted to stop her advances. Others who came in the car also attempted to get to the complainant. One of the eye-witness told the Court the accused got out of the car with a piece of pipe. Another eye-witness observed the accused striking at the complainant with a piece of pipe. Another neighbour who was trying to stop the attack also saw the accused striking the complainant on the head with the pipe. It is out of that incident for which the defendant was found guilty of the offences and now appears for sentence.
8. Before me is the application by the defendant to discharge without conviction. The prosecution in anticipation of the application has filed submission opposing the application. The application for discharge is based on section 104 of the Criminal Procedure Act which section empowers the Court to discharge the defendant without conviction. Section 104 Criminal Procedure Act empowers the Court to discharge a defendant without conviction if:
   • (i) the offence was in the particular circumstances of so trifling a nature that it is inexpedient to inflict any punishment or any other than a nominal punishment; or
   • (ii) having regard to the age and some other special circumstance of the offender, the entering of a conviction would itself be a hardship out of a proportion to the particular circumstances of the offence committed.
9. The Court, in considering the exercise of its discretion to discharge as was pointed out by Richardson in the NZ Court of Appeal decision in Fisheries Inspector v Turner (1978) 2 NZLR 233 at 241, must have regard to the nature of the offence and the gravity with which it is viewed by Parliament, the seriousness of the offending, the circumstances of the particular defendant in terms of the effects on his or her career, his or her pocket, his or her reputation and any civil disabilities consequential on conviction and to any other relevant circumstances.
10. A three step process approach derived from the judgment of Richardson in Fisheries Inspector v Turner was adopted by Sapolu CJ in Police v Papalii and Moalele (2011) WSSC 132. That process requires the Court to consider:
    • (a) The gravity of the offence
    • (b) the consequences of conviction; and
    • (c) whether the consequences are out of all proportion to the gravity of the offending.
11. Prosecution in opposing the application to discharge submitted that this case is similar to the case of Pale v Attorney General 2010 WSSC 122. In that case I determined an appeal against conviction and sentence for assault and dismissed both appeals. On the issue of sentence in which the appellants sought a discharge without conviction, I held that the assault by the appellant cannot be described as trifling, by the appellant was unprovoked, and he was assisted by others and had the element of a gang attack. In fact the appellant and his group chased the victim who was already injured and inflicted further injuries. With due respect to the prosecution the offending in this case was no where near as serious as the offending in Pale v Attorney-General.
12. The injuries suffered by the victim in this case although they cannot be described as trifling, they cannot be described as serious either.
13. The whole incident could have been averted if the defendant a 58 year old mother and grandmother had exercised maturity and common sense instead of succumbing to the accusation by her drunken, supposedly mature son who had just punched his mother in law in the face. She and four other adults from her family did not go to the complainant’s house to pack clothes and other personal belongings of her son. She could have waited until day time. But she was so overcome by anger. She was provoked. As a grandmother and mother she has children, grandchildren, and relatives living in Samoa, New Zealand and Australia which she would like to visit on occasions from the U-S-A where she is residing. A conviction to her name may hinder and make difficult her wishes to travel.
14. She like the complainant in this matter are undoubtedly very loving and dedicated mothers and grandmothers. The Court does not doubt that the accused is extremely remorseful. The Court is quite confident that both the defendant and the complainant can and will repair the damage and move forward, at least for the sake of their granddaughter Heleina, if not for their children Howard and Vanessa.
    
15. The embarrassment the defendant has undoubtedly suffered as a result of appearing before this Court on several occasions to answer and defend the charges is in the Court’s view a punishment in itself.
16. The correspondence that the Court has now just received has confirmed that the defendant has taken steps to repair the damage which has been inflicted.
17. The consequences of a conviction would be out of proportion to the gravity of the offending and as a consequence the Court will exercise the power provided by section 104 Criminal Procedure Act and discharge the defendant without conviction.
18. A condition of the discharge is that the defendant will pay the cost of prosecution of $1,000 tala.

JUSTICE VAAI