Police v Aleni [2015] WSSC 11 (27 February 2015)

IN THE SUPREME COURT OF SAMOA
Police v Aleni [2015] WSSC 11

Case name:	Police v Aleni
Citation:	[2015] WSSC 11
Decision date:	27 February 2015
Parties:	POLICE v SIONA ALENI
Hearing date(s):
File number(s):	S4367/14
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Honourable Chief Justice Sapolu
On appeal from:
Order:	- convicted and fined $200 payable within 10 days. - in default 3 months imprisonment.
Representation:	L Su’a-Mailo and B Faafiti-Lo Tam for prosecution Accused in person
Catchwords:	grievous bodily harm - causing actual bodily harm with intent – nature of assault – reconciliation – mitigating and aggravating features - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.118 (2) and s.119 (1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S4367/14

BETWEEN

P O L I C E
Prosecution

A N D

SIONE ALENI male of Leauvaa-uta.
Accused

Counsel: L Su’a-Mailo and B Faafiti-Lo Tam for prosecution

Accused in person

Sentence: 27 February 2015

S E N T E N C E

The charges

1. The accused Siona Aleni of Leauvaa-uta appears for sentence on one charge of with intent to cause grievous bodily harm did wound the victim, contrary to s.118 (2) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment, and one charge of causing actual bodily harm with intent, contrary to s.119 (1) of the Act, which also carries a maximum penalty of 7 years imprisonment. To both charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. The prosecution’s summary of facts shows that on Friday night 12 December 2014 at around 10pm, the victim was returning home after watching TV at his aunty’s place when he met his friends. They then went to hang out at the Samoan house of one of the victim’s friends. Not long after that, the accused approached the victim and his friends and asked the victim “E ke ulavale?”. The victim responded “E leai, malosi oe”. The accused then punched the victim twice on his mouth and kicked him several times. The victim screamed for help and tried to protect his facial area using his hands. One of the victims friends intervened and told the accused “Ua lava ga ua kigaiga le kama”. The accused then turned to that friend of the victim. At that time, the victim tried to run away but the accused grabbed hold of him.
3. Following that, the accused pushed the victim on the ground and punched him on the mouth causing the victim to become unconscious momentarily with blood coming from his lower jaw. At that moment, the parents of the accused arrived at the scene and stopped the accused.
4. As a result of this incident, the victim was taken to the Tupua Tamasese Meaole Hospital the same night. The report from the doctor who examined and treated the victim states that the victim sustained a small laceration on the left part of his chin. The laceration was about one centimeter long and was superficial. The wound was stitched and dressed and the victim was sent home with antibiotics.
5. As it appears from the pre-sentence report, the accused told the probation service that on the night of this incident, one of his cousins asked him, “O a lua mea ma Taumaia na fai mai ile auala?” Taumaia is a girl of the accused’s village.. The accused said when he asked his cousin who gave him that wrony information, his cousin replied it was the victim. The accused become really angry and went to where the victim was and assaulted him.

The accused

6. The accused is 22 years of age and is employed at lawn mower business. As shown from the pre-sentence report, he attended school up to Year 10. When he left school, he was employed in a refrigerator company for three years before he took up his present employment.
7. The accused has one previous conviction in 2013 for a different type of offence and was placed on supervision for 12 months which ended on 29 April 2014. Apart from this previous conviction, the testimonials from the accused’s mother, the bishop of his church, and the pulenuu of his village show that the accused is a person of good character.
8. The pre-sentence report also shows that the accused and his parents have apologised to the victim and his parents and the apology was accepted. There has also been a reconciliation.

The victim

9. The victim is 16 years old. He is still attending school. The victim impact report shows that for a whole week after this incident, the victim could not eat properly because of the pain to his jaw. Most of his food for that one week being mashed.
10. The victim also states in the victim impact report that the accused’s parents have apologised to his parents and presented $50 and the apology was accepted. His parents have forgiven the accused. He has also forgiven the accused and no longer thinks about the incident that happened to him..

The aggravating features of the offending

11. The following are the aggravating features relating to the offending.

(a) Age disparity

12. The age disparity between the accused and the victim is 6 years. As earlier mentioned, the accused is 22 years and the victim is 16 years. Presumably, the accused must be physically bigger and stronger than the victim.

(b) Nature of assault

13. This is a case of a sustained assault which did not stop until the parents of the accused arrived at the scene and stopped the accused. The victim was punched twice on his mouth and kicked several times. When the victim tried to run away, the accused grabbed hold of him, pushed him on the ground and punched him again on the mouth.
14. As a result of this last punch, the victim became unconscious for a short time with blood coming from his lower jaw. The injuries sustained by the victim were a momentary loss of consciousness and a small superficial laceration about one centimeter long on the left part of his chin.

Mitigating features of the offending

15. On the accused’s account given to the probation service, there was an element of provocation because the accused said that one of his cousins had asked him “Oa lua mea ma Taumaia na fai mai ile auala”? And the source of that information was attributed to the victim. But the accused said the information was wrong. However, his reaction was out of proportion to the provocation. I will therefore give little weight to the provocation.

(a) Apology and reconciliation

16. The accused and his parents have apologised and presented $50 to the victim and his parents and the apology was accepted. There has also been a reconciliation.

(b) Previous good character

17. The testimonials from the accused’s mother, the bishop of his church, and the pulenuu of his village all show that the accused is a person of previous good character. However, because of the accused’s recent previous conviction, though for a different type of offence, I will not give the accused credit for previous good character.

(c) Plea of guilty

18. The accused has pleaded guilty to the charges against him at the earliest opportunity.

The charges and nature of the injuries

19. Because the charges in this case are for intent to cause grievous bodily harm did wound the victim and for causing actual bodily harm with intent, I would refer to the type injuries that would support a charge of assault or a charge of causing actual bodily harm. This is important where charges of assault, wounding, actual bodily harm, and grievous bodily harm are preferred by the prosecution against an unrepresented accused.
20. In Police v Niko [2013] WSSC 65, this Court cited from R v Appleby [2009] EWCA Crim 2693, para 2, where Lord Chief Justice Judge, in delivering the judgment of the English Court of Criminal Appeal, said:
    • “The Crown Prosecution Charging Standard advises that minor injuries justify a charge of common assault rather than assault occasioning actual bodily harm. They include grazes, scratches, abrasions, minor bruising and swelling, superficial cuts and reddening of the skin... The same Charging Standard identifies the kind of injuries which should lead to a charge of assault occasioning actual bodily harm. They include loss or breaking of a tooth, or teeth, extensive multiple bruising, displaced broken nose, minor fractures, temporary loss of sensory function, which may include loss of consciousness, and minor, but not superficial, cuts of a sort which might require medical attention in the form of stitching. Grievous bodily harm is concerned with serious injuries”.

Discussion

21. After considering the aggravating and mitigating features relating to the offending and the mitigating features relating to the offender, the accused is convicted and fined $200 payable within 10 days in default 3 months imprisonment.

Honourable Chief Justice Sapolu