Police v Gase [2015] WSSC 82 (20 July 2015)

SUPREME COURT OF SAMOA
Police v Gase [2015] WSSC 82

Case name:	Police v Gase
Citation:	[2015] WSSC 82
Decision date:	20 July 2015
Parties:	POLICE (prosecution) v LUATUA TAVAGA LAGAATA GASE aka VAAI GASE male of Vaitele and Lalomau (accused)
Hearing date(s):
File number(s):	S1694/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and fined $300.00
Representation:	L Sua-Mailo for prosecution Accused in person
Catchwords:	Causing actual bodily harm with intent – maximum penalty – early guilty plea – victim impact report – aggravating features – mitigating features – penalty imposed – previous good character – remorseful – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.119 (1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

S1694/15

BETWEEN

P O L I C E
Prosecution

A N D

LUATUA TAVAGA LAGAATA GASE aka VAAI GASE male of Vaitele and Lalomau
Accused

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 20 July 2015

S E N T E N C E

The charge

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

The offending

2. The accused and the victim are both from the village of Lalomanu. The accused is a matai of the village but the victim is an untitled man(taulealea). In the evening of 23 May 2015, the accused and other matais of his village of Lalomanu were playing pool at the billiard house of the village together with the victim who had bought six large bottles of Vailima beer for the accused and the other matais. There is a village rule that untitled men were not to play pool with the matais of the village. However, the matais who were playing pool at the billiard house on the night in question appeared willing to play pool with the victim because he had bought them six large bottles of beer.
3. In the course of the evening, the accused was sharing to the other matais how a fish is to be distributed in accordance with Samoan custom when the victim made a comment which resulted in the accused telling him not to speak us he is not a matai. The victim replied that even though the accused is a matai he is older than the accused. This made the accused angry and he reached out to an empty beer bottle and hit the victim with it on the back of the head. This resulted in two cuts to the victim’s head, one measuring 2cm long and 1cm deep and the other measuring 3cm long and 1cm deep. Both the accused and the victim were intoxicated.

The victim

4. The victim is 45 years. The victim impact report shows that the victim is still very hurt at what the accused had done to him. When he sees the victim he feels he wants to give the accused a hiding because of what he had done to him but then he does not want any more trouble. The victim is also sad because the accused was under the influence when he came to apologise to him.

The accused

5. The pre-sentence report shows that the accused is a 37 year old husband with five children. He has had a good academic background having reached the University Preparatory Year at the National University of Samoa and then later attended Malua Theological College. He had also been awarded a scholarship to study in Korea. Hs employment history shows that he has served at the main office of the Congregational Christian Church of Samoa at Tamaligi before taking up employment at the Samoa Qualifications Authority where he now holds the position of principal recognition officer.
6. The accused is also a first offender and the testimonials presented to the probation service by the accused’s wife, the pulenuu and lay preacher of his village, the Member of Parliament of his district, his current employer, and the paramount matai of his family show that the accused is a quiet, humble, dependable, and reliable person. In other words, he had been a person of good character prior to the commission of this offence.
7. The accused has also been penalised by the village council of Lalomanu and has paid a fine of $1200. The accused has also apologised to the victim but the victim told the probation service that he did not accept the apology because the accused was under the influence when he made his apology.
8. The accused has also pleaded guilty to the charge against him at the earliest opportunity.

The aggravating features relating to the offending

(a) Use of an empty beer bottle

9. The use by the accused of an empty beer bottle to hit the victim on the back of the head is an aggravating feature relating to the offending.

(b) Injuries

10. The injuries to the victim’s head is another aggravating feature relating to this offending.

The mitigating features relating to the accused as offender

(a) Previous good character

11. The previous good character of the accused is a mitigating feature relating to the accused as offender.

(b) Penalty imposed by village council

12. The penalty imposed by the village council of Lalomanu on the accused is punishment on the accused. The fine of $1200 the accused has paid to his village council is another mitigating feature relating to the accused as offender.

(c) Apology to the victim

13. The apology made by the accused whilst under the influence to the victim is not a clear sign of remorse. I therefore would not accept it as a mitigating feature relating to the accused as offender.

(d) Guilty plea

14. The accused’s guilty plea to the charge against him at the earliest opportunity is an important mitigating feature relating to the accused as offender.

Discussion

15. This offending happened while the accused, other matais of his village, and the victim were playing pool in the billiard house of their village and drinking beer. The victim who is not a matai made a comment which angered the accused who is a matai of the village. As a result, the accused reached out to an empty beer bottle and hit the victim with it causing two cuts to the victim’s heard. Both men were intoxicated. There was evidently no premeditation involved. In the circumstances, I consider the degree of criminality involved in this offending to be towards the low end of the scale. Also taking into account the mitigating features personal to the accused as offender, a custodial sentence would not be appropriate. But I must warn the accused to control his drinking because he appears to find it difficult to control his temper when under the influence of alcohol. A repeat of this type of offending in the future may land him in prison.

Result

1. The accused is convicted and fined $300.

CHIEF JUSTICE