Police v Uelese [2015] WSSC 113 (2 March 2015)

THE SUPREME COURT OF SAMOA
Police v Uelese & Anor [2015] WSSC 113

Case name:	Police v Laifai Iupeli Uelese & Anor
Citation:	[2015] WSSC 113
Decision date:	2 March 2015
Parties:	Police (informant) and Laifai Iupeli Uelese & Iupeli Iupeli, males of Solosolo (defendants)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Aitken
On appeal from:
Order:	Four months’ imprisonment and 12 months supervision for Defendant Uelese, 150 hours’ community work for Defendant Iupeli
Representation:	B Faafiti-Lo Tam, L Tavita and O Tagaloa for the Prosecution Defendants appear in Person
Catchwords:	intentional damage – assault – throwing stones – pre-meditated offending – damaging banana trees – banishment
Words and phrases:	being armed with a dangerous weapon – damaged personal property – one prior conviction – attend anger management programme – no previous convictions
Legislation cited:
Cases cited:	Police v Samuelu Kelemete (unreported, 17 February 2014, Chief Justice Sapolu).
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

LAIFAI IUPELI UELESE and IUPELI IUPELI,
males of Solosolo
Defendants

Counsel:
B Faafiti-Lo Tam, L Tavita and O Tagaloa for the Prosecution
Defendants appear in Person

Sentence: 2 March 2015

ORAL SENTENCE OF JUSTICE E M AITKEN

1. Laifai Iupeli and Iupeli Iupeli, you both appear for sentence before me this morning. Laifai, you appear for sentence in respect of 7 charges and Iupeli, you appear for sentence in respect of 2 charges. Laifai, the charges are one charge of intentional damage, and that was in respect of 50 banana trees; two counts of assault; another count of intentional damage that related to the television and the wooden safe; one count of throwing stones; and one count of being armed with a dangerous weapon, namely a knife. For you, Iupeli, it is one charge of intentionally damaging the banana palms with your father and one charge of throwing stones.
2. The Summary of Facts relates to you both and I will briefly now summarise your offending. In July of last year the first victim, Tauvela was walking to church. He came across a young family member, asked the child where he was going and then told the child in effect that he should go home to get ready for church. The child threw a rock at Tauvela and was cheeky to him, and Tauvela chased him but could not catch him and the child ran off. Tauvela went on to church and when he was walking home he met you, Iupeli, on the road. You effectively accused him of taking money from the child which he denied, and you told him then that you would get your father, Laifai to sort him out. That, it seems, is exactly what you did, because shortly after Tauvela got home you both arrived at his house.
3. Laifai, you arrived carrying a stick and questioned Tauvela about the money. He continued to maintain that he knew nothing about any money. You threatened him and said he needed to look for the money or you would come back and whip him with a stick. You left the house but you returned. He again told you did not have the money and at that point you swung the stick at him, hitting him on the side of the base of his neck; that caused a large gash in his neck of about 5 to 6 cm. He fell to the ground and lost consciousness for a short period of time. It was while he was on the ground that his brother, Mathew arrived (the second victim). He called out to you, Laifai, to stop and you turned around and hit him with the stick and punched him and he responded by fighting back. It was a female relative of both of you who managed to break up the fight. As the fight was breaking up Tauvela regained consciousness and he left the house quickly with his brother.
4. As they ran away from the house, the two of you held stones and you started throwing those stones at the house. The stones caused damage to the wooden safe and as part of this violent behaviour, Laifai, you then pushed over the television set which fell out and smashed on the rocks on the ground. Laifai, you then armed yourself with a bush knife, which I assume you did not take with you to the property but which you found at the property. You then went to the plantation belonging to Mathew, the banana plantation, and damaged approximately 50 banana plants, deliberately cutting them down or in half. Iupeli, you were with him during that incident and the two of you accept joint responsibility for what happened in the plantation.
5. Both of you we spoken to by the Police the next day and made certain admissions at an early opportunity.
6. When I look at that course of conduct – in other words, all of the offending as a single event – there are a number of aggravating factors. While much of your offending, Laifai, I suspect was carried out in a fit of anger the offending generally can be said to be pre-meditated or planned. You went to the victim, Tauvela; you threatened him to find the money or you would whip him; you went home; you came back with the stick and indeed you did what you said you were going to do.
7. Secondly, actual harm was caused, particularly to Tauvela. As I said he sustained a large gash and was rendered unconscious. He did not need medical attention but he still bears the scar of the injury. I note obviously that other damage was caused to the banana palms, the television and the safe but that is inherent in the offending and it is not an aggravating or additional factor.
8. Thirdly, I regard the prolonged or ongoing nature of the offending as an aggravating factor. You assault the two men; they leave the house but you do not stop then. I can only assume acting in a rage you then damaged the safe and the television, and of course the banana palms. So this was not a single assault. This was an ongoing course of violent behaviour.
9. Fourthly, I have regard to the consequences of the offending and obviously the impact on the livelihood of the victims given the damage that you caused to their banana palms.
10. Those are the aggravating factors that relate to the offending and I should make it clear, I am particularly now addressing Laifai Iupeli. In terms of aggravating personal factors, I am aware of one prior conviction. It was for manslaughter entered in the year 2000. Manslaughter is a very serious offence and it is also an offence involving fatal injury or harm to an individual. Having said that, it was a long time ago; you were a lot younger then. In my view, given the nature of that offence (about which I know very little) I do not regard it as a specific aggravating factor but it obviously means that you cannot claim any credit for no prior convictions.
11. The starting point, Laifai Iupeli for this offending must be a term of imprisonment. This was prolonged violent offending resulting in both physical injury and significant property damage. Intentional damage carries a maximum penalty of 7 years. It is clearly the lead offence in terms of sentencing but I regard this as one prolonged course of conduct. You are unrepresented but I have carefully, and I hope objectively and dispassionately, had regard to the authorities (the cases) to which the Prosecution have referred me, and I have particular regard to the decision of Police v Samuelu Kelemete (unreported, 17 February 2014, Chief Justice Sapolu). This was a single charge of intentional damage with a cost in excessive of $3,500. His Honour noted the Court’s concern over the continuous increase in offending of this type (intentional damage) and the need for deterrent sentencing.
12. In this particular case, having regard to the whole course of conduct, I have reached the view that the starting point must be a sentence of 12 months imprisonment. From that starting point, however, you are entitled to some considerable credit that permits me to reduce the sentence. You are 45 years old and as noted you have one single prior conviction but no offences since your release in September 2002. You have attended a family meeting; you have been forgiven, I am told, by the family; and certainly you have been quite significantly punished as a result of that meeting. As a result of the order of the village, you have paid a sum of around about $2,000. You have also made a gift of fine mats and livestock. I understand from you and your sister, who addressed the Court, that in essence you have now repaid the village in full. In other words, since this offending you have done everything that was expected of you. You have also been banished from your village which I regard as a significant penalty in itself. That was been for a period of 7 months and I understand from you that you are able to return to the village now when you wish. You are described as a hardworking man, a good father and a good husband, and as I said, I heard from your sister, I also heard from your wife. Your oldest son stands in the dock with you but your two younger children are still at school and you support your family from your subsistence farming and fishing. The victims of your offending now will include your children as time in prison away from them will clearly have an adverse impact on the family’s wellbeing.
13. I am prepared to reduce your sentence by 6 months and that would reduce it to a term of 6 months imprisonment having regard to all of those factors. However, you are also entitled to credit for your plea of guilty which was entered at the start of the trial. You are unrepresented and in my view, real credit can still be given for the plea of guilty as it spared your other family members from having to come to Court to give evidence and it reflects an acceptance of responsibility. That would therefore in my view appropriately attract a further reduction of 2 months, bringing me to an end point sentence, and the sentence of imprisonment I must now impose, of 4 months.
14. That sentence of 4 months will be followed by a sentence of 12 months supervision with the single special condition that you attend an anger management programme.
15. Laifai Iupeli, you are a matai of your village and you are also a father. It is essential if you wish to avoid prison in the future that you learn to control your anger. You need to behave in a way that role models the best of behaviours to your children and your village, not the worst. You had the opportunity to walk away but you chose to return and then you chose to lose your temper and take it out on both persons and properties. That is not only unacceptable, inappropriate behaviour but it is obviously criminal.
16. The 4 months term of imprisonment is designed to hold you accountable for your offending and I hope to bring home to you the seriousness of it and to deter others from acting in a similar way. The 12 months sentence of supervision is not designed to punish you; it is designed to assist you in addressing those offending behaviours. We all get angry, Mr Iupeli. It is what we do when we get angry that makes the difference between coming to Court and not coming to Court, and I would strongly urge you to make the most of the Stopping Violence programme on your release to put yourself in the best possible position so that you never come back before the Court.
17. I turn now to address Iupeli Iupeli. You appear for sentence now in respect of two charges, jointly with your father of intentionally damaging the 50 banana trees and one charge of throwing stones, and I have already referred to the Summary of Facts. It is obvious to the Court that your role in this offending was very much less serious than your father’s. You did not hit anyone with the stones but you were present while your father was assaulting others and you did not intervene, and of course you have pleaded guilty to the intentional damage of the banana palms, so accept responsibility for that offending.
18. As to your personal circumstances, you are 22 years old and a single man. You have no previous convictions, so this is the first time you appear before the Court for any offending and certainly any violent offending. I do accept that it is highly likely that you went along as part of your duty or obligation to your father – although it was you who first said to the victim that you were going to go and get your father to sort him out, so you did play a significant role in the commencement of this offending generally.
19. You left school at the end of Year 8 and you work on the family plantation and support the family with your father. You too have attended the family meeting; you have also been forgiven, and as part of the penalty imposed by the Village Council you have played your part in repaying the fine and you too of course have been banished for the past 7 months. Those are significant consequences for a young man who has not appeared before the Court before. Your aunt (or birth mother) appears and asks the Court for leniency. Your family mother also appears and tells the Court that she is very dependent on you and your father to help support her and your other siblings.
20. Imprisonment is not necessary in my view for a first offender in these circumstances. In my view the appropriate penalty is a sentence of community work, and on both of these charges you are convicted now and sentenced to 150 hours of community work.
21. Iupeli, you need to understand that you now have a criminal record for intentional damage and stone throwing. If you offend again in any criminal way the Court will have regard to this earlier offending and will likely take a sterner view of your behaviour. You need to make sure therefore you not only complete the hours of community work but that you never behave in a way that runs the risk of bringing you back before the Court. Do you understand? [Yes]. Thank you, you may stand down.
22. In respect of Laifai Iupeli, any time served for this offending on remand is obviously to be deducted from sentence.
    

_____________________
JUSTICE E M AITKEN