Police v Asa [2015] WSSC 166 (9 October 2015)

IN THE SUPREME COURT OF SAMOA
Police v Asa [2015] WSSC 166

Case name:	Police v Asa
Citation:	[2015] WSSC 166
Decision date:	9 October 2015
Parties:	Police (prosecution) and Tautai Letuu Asa, male of Mataafa (defendant)
Hearing date(s):	-
File number(s):	S1132/15, S1134/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court, Mulinuu
Judge(s):	Justice Vaai
On appeal from:	-
Order:	Served 12 months imprisonment less any time spent in custody.
Representation:	O Tagaloa for prosecution R Papalii for defendant
Catchwords:	Causing serious bodily harm – common assault – lack of provocation - mitigating features
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

TAUTAI LETUU ASA male of Mataafa
Defendant

Counsel: O Tagaloa for prosecution
R Papalii for defendant

Sentence: 9 October 2015

S E N T E N C E

1. Defendant Tautai Asa appear today for sentence on charges of causing serious bodily harm to Ta’avale and of common assault on Mareko. Both victims are from the village of Falese’ela, Lefaga. The defendant is from the neighbouring village of Matafa’a, Lefaga.
2. The undisputed facts are that on the day of the incidents the defendant, the two victims and others were fishing, using rods and nets. The defendant who was sitting in his canoe, using a rod to catch fish was not happy with the victims close by using the net. He called to the victims to take their net somewhere else, but the victims ignored his call, which caused the defendant to become angry. He swore at the victims and their group and told them to move their net closer to the shoreline. When the victim Mareko called back that there are no fish close to the shore, the defendant got angrier, paddled his canoe towards the victims and their groups, and struck Mareko with the wooden oar. The strike which landed on Mareko’s arm broke the oar, but the defendant held on to the handle of the oar.
3. Victim Ta’avale the oldest member of the group tried to reason with the defendant but at that time the defendant threw the handle of the oar at Mareko but instead struck Ta’avale on the side of the head rendering Ta’avale unconscious in the sea and was bleeding profusely. Ta’avale was pulled into a canoe and taken to the District hospital at Leulumoega and transferred to the National hospital the following day where he underwent skull surgery.
4. Ta’avale is 51 years. He suffered a depressed skull fracture of the left tample bone. The examining doctor noted that the covering of his brain (dura) was torn and parts of the brain were protruding through the wound. He has suffered memory loss.
5. The victim Mareko is 22 years. He suffered pain for a whole week as a result of the forceful strike on his arm.
6. The defendant is 41 years a planter and fisherman. He is married with 4 children and an orator of Matafa’a village. The traditional ifoga by the defendant and his family has been accepted by the families of the victims. Despite his low level of education he is depicted in the pre-sentence report as a dedicated, hardworking planter and fisherman, a promising village and church leader. A member of victim’s family addressed the court seeking forgiveness and mercy for the defendant. Both victims have also dialogued with the defendant and conveyed to the defendant their unconditional forgiveness.

Prosecution’s Submission

7. A term of imprisonment to commence at 5 years is ought by the prosecution based on the aggravation features of the offending which include the use of a weapon, the lack of provocation, the vulnerability of the two victims who were both in the sea and could have drowned, and the serious head injury suffered by the victim Ta’avale.
8. The prosecution has also provided a table of previous cases for similar offending to provide general guidance on the types of sentences imposed.

Defence Submissions

9. A non-custodial sentence is submitted by counsel for the defendant. It was contended that the defendant was provoked when the victim Mareko responded to the defendant’s call for the victims and their groups to go away with their nets as it was contrary to village taboo to use nets at that particular time of the year to catch the atule fish. It was also submitted that rehabilitation should in the circumstances be the prevalent consideration. Other personal circumstances such as his unblemished record; devoted member of the family, village and church; the acceptance of the ifoga; the imposition of village fine; restorative justice and the uncharacteristic nature of the offending have all been advanced to support the imposition of a non-custodial sentence.

Discussion

10. I do not accept that the response by the victim Mareko would have caused a reasonable Samoan to loose control of his anger and acted in the manner this defendant did. He struck Mareko with such force which caused the wooden oar to break. He wanted to strike Mareko again but could not reach him so he hurled the handle despite pleas by the victim Ta’avale.
11. Head injuries suffered by Ta’avale was very serious. He could have drowned if others were not there. Despite the profuse bleeding and the obvious serious head injury, the defendant showed no remorse and did not offer assistance. His anger got the best of him.
12. Resorting to violence when one is angry must be discouraged. Unnecessary violence has accounted for so many disastrous incidents causing serious permanent injuries and sometimes the loss of lives. The traditional ifogas, village fines, reconciliations and true remorse cannot bring back so many innocent lives, or undo the hurt and sufferings of so many victims.
13. The primary function of the sentence is to protect the community. Appropriate measure of mercy as justified in the circumstances will also be considered.
14. A custodial sentence cannot be avoided given the circumstances of the offending. I consider 4 years as the appropriate starting point. I deduct 2 years for his early guilty plea, obvious remorse and unblemished record. I deduct 6 months for the ifoga. I deduct 6 months for the village fine. He will serve 12 months imprisonment less any time spent in custody.

JUSTICE VAAI