Police v Vailele [2015] WSSC 18 (9 March 2015)

IN THE SUPREME COURT OF SAMOA
Police v Vailele and Suaava [2015] WSSC 18

Case name:	Police v Vailele and Suaava
Citation:	[2015] WSSC 18
Decision date:	9 March 2015
Parties:	POLICE (prosecution) v MATINI VAILELE and TAMATI SUAAVA (accused)
Hearing date(s):
File number(s):	S236/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Matini is sentenced to 12 months supervision and or ordered to perform 30 hours community service. - Tamati is discharged without conviction.
Representation:	L Su’a-Mailo for prosecution C Vaai for accused
Catchwords:	Causing reckless damage – maximum penalty - pleaded guilty – unexpectedly approached
Words and phrases:
Legislation cited:	Crimes Act 2013s.184 (2) (a)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S236/15

BETWEEN

P O L I C E
Prosecution

A N D

MATINI VAILELE male of Vailele.and TAMATI SUAAVA male of Vailele and Faala, Palauli, Savaii
Accused

Counsel: L Sua-Mailo for prosecution

C Vaai for the accused

Sentence: 9 March 2015

S E N T E N C E

The charge

1. The accused Matini Vaalele (Matini) and Tamati Suaava (Tamati) appear for sentence on a joint charge of causing reckless damage, contrary to s.184 (2) (a) of the Crimes Act 2013, which carries the maximum penalty of 7 years imprisonment. To the charge, both accused pleaded guilty at the earliest opportunity. They are both from Vailele.

The offending

2. As shown from the prosecution’s summary of facts and the pre-sentence report, at night time between 20 and 21 December 2014, the first named accused Matini was drinking beer with other boys of his village in front of the complainant’s shop at Vailele. He was unexpectedly approached by the second named accused Tamati and a friend. Tamati’s friend slapped Matini on the mouth and did the same to the other boys who were drinking with Matini. This provoked Matini into fighting with Tamati in front of the complainant’s shop. As Matini and Tamati were exchanging punches, Tamati backed up to the glass window of the complainant’s shop. Tamati then dodged one of Matini’s punches and as a result Matini’s punch struck the glass window of the complainant’s shop shattering it into pieces. The value of the window is estimated at $500.

The accused

3. The accused Matini is 21 years of age. He is single and unemployed. He has a previous conviction for causing actual bodily harm in 2010 and a previous conviction for assault in 2011. In relation to each of his previous convictions, he was given a suspended sentence.
4. The accused Tamati is 24 years of age and is also single. As it appears from the pre-sentence report, Tamati finished school at Year 13. He then attended the National University of Samoa for one year. He then returned to his home at Palauli, Savaii. He relocated and stayed with his aunt at Vailele. In 2009, he was employed as a volunteer counsellor by the Samoan Victim Support Group. Since 2010, he has stayed home and concentrated on playing rugby for the Vailele rugby club.
5. Tamati is a first offender. Testimonials from Tamati’s cousin Paletau, the pastor of his church, and the pulenuu of his village all show that Tamati had been a person of good character prior to this offending.
6. It also appears from the pre-sentence report that Tamati told the probation service that on the night in question, he was sleeping in his family’s house when his friend Veni came to him drunk and woke him up asking for some food. When Tamati told Veni there was no food as his family has already eaten, Veni asked Tamati to accompany him to the road because of the dogs. When they reached the road, the accused Matini was drinking beer with other boys of their village in front of the complainant’s shop. Tamati said his friend Veni then slapped Matini on the mouth and did the same to the other boys who were drinking with Matini which made Matini angry. However, Matini then stood up and started fighting him even though it was his friend Veni who slapped Matini. As the prosecution’s summary of facts shows, Tamati dodged one of Matini’s punches which struck and shattered the glass window of the complainant’s shop.

Discussion

7. It is clear that what damaged the glass window of the complainant’s window was the punch by the accused Matini as the accused Tamati took evading action by dodging it. I cannot use how in those circumstances Tamati can be said to have recklessly caused the damage to the window. After all Tamati did not provoke or start the fight with Matini. It was Tamati’s friend Veni who slapped Matini which provoked Matini. And Tamati was trying to avoid the punches from Matini. For some unexplained reason, Matini did not retaliate against Veni who slapped him but against Tamati who did nothing to him.
8. It is, however, to the benefit of Matini that he did not start this incident. It was Veni who provoked Matini by slapping his mouth. Perhaps because he was under the influence of alcohol, Matini over reacted to the provocation and then started punching at Tamati who did not slap him.

The result

9. In the circumstances of this case, the accused Matini is sentenced to 12 months supervision and ordered to perform 30 hours community service. The accused Tamati is discharged without conviction.
   

Honourable Chief Justice Sapolu