Police v Nuufaigata [2015] WSSC 19 (11 March 2015)

SUPREME COURT OF SAMOA
Police v Nuufaigata [2015] WSSC 19

Case name:	Police v Nuufaigata
Citation:	[2015] WSSC 19
Decision date:	11 March 2015
Parties:	POLICE (prosecution) v IOSIA NUUFAIGATA male of Malifa and Papauta (accused)
Hearing date(s):
File number(s):	S380/15, S381/15
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 12 months imprisonment - Time already spent in custody is further deducted from that sentence.
Representation:	L Sua-Mailo and B Faafiti-Lo Tam for prosecution Accused in person
Catchwords:	grievous bodily harm with intent – maximum penalty – aggravating and mitigating features – degree of violence – injuries – impact of offending – apology – guilty plea – custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.118 (1) s.119
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S380/15, S381/15

BETWEEN

P O L I C E
Prosecution

A N D

IOSIA NUUFAIGATA male of Malifa and Papauta.
Accused

Counsel:
L Sua-Mailo and B Faafiti-Lo Tam for prosecution
Accused in person

Sentence: 11 March 2015

S E N T E N C E

The charges

1. The accused Iosia Nuufaigata appears for sentence on one charge of causing grievous bodily harm with intent, contrary to s.118 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and on the alternative charge of causing actual bodily harm with intent, contrary to s.119 (1) of the Act, which carries a maximum penalty of 7 years imprisonment. To both charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. As shown from the prosecution’s summary of facts, on New Year’s Eve, 31 December 2014, the accused was at his home at Malifa having New Year’s celebrations and consuming alcohol. On the same night, the victim was working the late night shift with his taxi at his taxi stand at Motootua when the accused called for a taxi to take him from his home at Malifa to Papauta. The victim attended the call.
3. As the victim was driving from Malifa to Papauta, the accused insisted that the victim drive faster so that the accused could get to his family before midnight. Upon arriving at Papauta, the victim waited in his taxi while the accused went inside a house. About half an hour later, the accused came out of the house and asked the victim to take him back to his home at Malifa.
4. On their way back from Papauta to Malifa, the accused again insisted that the victim drive faster. The victim did not comply and told the accused that it was up to him to determine the speed in which to drive his car. The victim then drove straight to his taxi stand at Motootua. When they arrived at the taxi stand, the victim got out of the car and asked the accused for payment of the taxi fare. However, the accused insisted to take him first to his home at Malifa and then he would pay his fare. The victim refused and opened the door on the side where the accused was sitting. The accused and the victim then got into a fight but the other taxi drivers at the stand intervened and stopped the fight.
5. The victim then again insisted that the accused pay his taxi fare and the accused started feeling his pockets. All of a sudden, the accused lashed out and punched the victim in the right eye causing the victim to stumble backwards holding his eye which was bleeding. Other taxi drivers who were present pushed the accused away.
6. The victim was taken to the Tupua Tamasese Meaole Hospital where the doctor who examined and treated him found the following injuries: (a) bleeding from the right eye, (b) a scar on the right eye, and (c) a large laceration of the cornea of the right eye. After being given IV antibiotics, the victim underwent surgery but this was not successful due to complications in the injury.
7. The medical staff explained to the victim and his family that there was a possibility that the victim may lose his vision in his good left eye because of the injury to his right eye. The victim was hopitalised for three days. Furthermore, the eye doctor who treated the victim reports that the victim has sustained irreversible loss of vision in his right eye and his eye will shrink as it heals.

The victim

8. The victim is 51 years and a taxi driver. He has a wife and six children. His eldest child is 18 years old and has just finished school while his other five children are still attending school. He is the sole provider for his family.
9. The victim impact report shows that the interior of the victim’s eye has been damaged and the victim says he has lost all vision in his right eye. So this is not a case of partial loss of vision but total loss of vision in the injured eye. At times, the victim suffers headaches from the pain in his eye. He is using eye drops and taking pain killers and antibiotics to soothe the pain.
10. On 17 February 2015, the victim had an operation to remove the stitches in his eye but that operation was not successful. Another operation was then set for 4 March 2015 to remove the stitches.
11. The injury has caused much worry to the victim as he is the sole provider for his family. His wife has told him not to return to work but he has gone back to work in order to support his family.
12. The victim also says in the victim impact report that he knows the accused and has forgiven him. About two weeks after this incident, the accused’s family performed a ifoga and presented a fine mat and $500 to the victim which was accepted. The accused was not present at the ifoga as he has been in custody for this matter.

The accused

13. The accused is 24 years of age, single, and at the time of this offending was employed as a driver by the Outrigger Hotel. Even though he has a previous conviction for drunkenness in 2012, the testimonials provided to the probation service by his sister, the pastor of his church, and the pulenuu of Papauta all show that he had been a person of good character prior to this offending.
14. The pre-sentence report shows that when the accused finished work in the afternoon of 31 December 2014, he had five small bottles of Vailima beer at a bar in Apia. On his way home, he bought six more large bottles of Vailima beer. He drank three of those bottles when he got home. He then called the victim’s taxi stand for a taxi to take him to his sister’s family at Papauta.
15. The accused told the probation service that he was a regular customer of the victim’s taxi stand and would pay for this taxi fares when he gets paid from his work every Friday. He also told the probation service that the victim who was new to the taxi stand was not aware of this arrangement he had with the taxi stand. If this is true, it appears that the accused did not properly explain this arrangement with the taxi stand to the victim because on the night in question he did not have any money to pay for his taxi fare as he told the probation service.

Aggravating features relating to the offending

16. The following are the aggravating features relating to this offending.

(a) Degree of violence

17. Even though the accused punched the victim only once, the punch must have been quite forceful because it made the victim stumble backwards bleeding from his right eye. The other taxi drivers at the taxi stand had to intervene and pushed the accused away.

(b) Injuries to the victim

18. The accused’s punch caused the victim to bleed from his right eye. The victim’s right eye ball was injured and he has lost all vision in that eye. This loss of vision, according to the doctor who is the head of the eye unit in the hospital, is irreversible which means it is permanent and will remain with the victim for the rest of his life.

(c) Impact of offending

19. As a result of the offending, the victim was admitted to the hospital for three days for treatment including a surgical operation to his injured right eye. He has had three operations on his right eye and the last operation was to take place on 4 March 2015. As already mentioned, he has also lost all vision in his injured eye.
20. The victim still gets headaches from the pain to his eye and takes pain killers, antibiotics, and eye drops to soothe the pain.
21. The victim also can no longer do night shifts as a taxi driver and can only work during the day. The victim’s wife does not wish for him to return to work but he has to keep working to support his family.

Mitigating features relating to the accused as offender

22. The following are the mitigating features relating to the accused as offender.

(a) Previous good character

23. Even though the accused has a previous conviction for drunkenness in 2012, the testimonials provided to the probation service by the accused’s sister, the pastor of his church, and the pulenuu of Papauta all show that the accused had been a person of good character prior to this offending.

(b) Apology by accused’s family

1. The accused’s family have performed a ifoga to the victim and his family and presented a fine mat and $500. It was accepted and the victim says he has forgiven the accused.

(c) Guilty plea

24. The accused pleaded guilty to the charges against him at the earliest opportunity thus saving the Court and the prosecution time and resources.

Discussion

25. Having regard to the aggravating features relating to the offending and the need for deterrence in this type of case, I will take 2 years as the starting point for sentence as recommended by the prosecution. I will deduct 2 months for previous good character. That leaves 22 months. I will then deduct 4 months for the apology by the family of the accused. That leaves 18 months. I will deduct a further 6 months for the early guilty plea. That leaves 12 months.

The result

26. (a) On the charge of causing grievous bodily harm with intent, the accused is sentenced

(b) to 12 months imprisonment....

(d) On the charge of causing actual bodily harm with intent which is an alternative charge, no sentence is necessary.

27. The end sentence is therefore 12 months imprisonment. The time that the accused has already spent in custody is to be deducted from that sentence.
    

Honourable Chief Justice Sapolu