Police v Losi [2015] WSSC 90 (28 August 2015)

SUPREME COURT OF SAMOA
Police v Losi [2015] WSSC 90

Case name:	Police v Losi
Citation:	[2015] WSSC 90
Decision date:	28 August 2015
Parties:	POLICE (prosecution) v MALU LOSI and SONOMA LUI both males of Malie (accused).
Hearing date(s):
File number(s):	S2027/15, S2028/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Malu is convicted and placed under supervision for 8 months. As special conditions of his supervision, he is to abstain from alcohol consumption during his term of supervision and to attend counselling and the alcohol rehabilitation programs conducted by the probation service. - Sonoma is convicted and placed under supervision for 7 months.
Representation:	F Lagaaia for prosecution Accused in person
Catchwords:	Intentional damage – maximum penalty – aggravating features – impact of the offending – premeditation – mitigating features relating to the offending – provocation – mitigating features relating to the accused as offender – apologies – reconciliation – reparation – guilty pleas – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s.184 (2) (a)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NOs: S2027/15, S2028/15

BETWEEN

P O L I C E
Prosecution

A N D

MALU LOSI and SONOMA LUI both males of Malie.
Accused

Counsel:
F Lagaaia for prosecution
Accused in person

Sentence: 28 August 2015

S E N T E N C E

Introduction

1. This case involves two accused. The first is Malu Losi (Malu) and the second is Sonoma Lui (Sonoma). It also involves two victims. The first is Atimalala Taufaatua Li’á (Atimalala) and the second is Vaalele Alefa Vaalele (Vaalele). The accused Malu and the victim Atimalala are cousins while the accused Sonoma and the victim Vaalele are brothers. All four men are from the village of Malie and live at Malie.

The charges

2. The accused Malu appears for sentence on one charge of intentional damage to property, contrary to s.184 (2) (a) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. He pleaded guilty to the charge at the earliest opportunity.
3. The accused Sonoma also appears for sentence on a separate charge of intentional damage to property, contrary to s.184 (2) (a) of the Act. He also pleaded guilty to the charge against him at the earliest opportunity.

The offending

4. On Friday night 19 June 2015, the accused Malu, the victim Atimalala, and friends were drinking alcohol at Malu’s house. They started drinking about 7:00pm. Around 11:00pm, Malu and Atimalala went in Atimalala’s car to drop off one of their drinking mates. They were all intoxicated at the time. As they drove past the house of the family of the accused Sonoma and the victim Vaalele, Sonoma threw a poumuli branch (lala poumoli) at Atimalala’s car which hit and shattered the rear windshield. Atimalala’s car stopped and the accused Malu got out and walked straight to the house of the family of the accused Sonoma and his brother Vaalele. When he saw Vaalele’s car parked in the garage, he walked over and hit the rear windshield of the car with a rock causing the windshield to shatter. He then walked to the front of the car and hit the front windshield with another rock also causing that windshield to shatter.
5. The cost of the damage caused by the accused Sonoma to the rear windshield of Atimalala’s car is $1,000. The cost of the damage caused by the accused Malu to both windshields of Vaalele’s car is $2,500.

The accused Malu

6. The pre-sentence report on the accused Malu shows that he is 30 years old, single, and lives with his parents and sisters in Malie. He is employed as a tile layer and the income from his job is used to support his family.
7. The testimonials from one of Malu’s cousins and the pastor of his church show that Malu is a reliable and supportive member of his family but his only weakness is alcohol. In 2013 he was convicted in the District Court of drunkenness and fined $40.
8. This matter has been settled between Malu and the victim Vaalele and Malu has paid full reparation of $2,500 to Vaalele for the costs to repair the damage to Vaalele’s car. Malu has also reconciled with the accused Sonoma, the brother of Vaalele.

The accused Sonoma

9. The pre-sentence report on the accused Sonoma shows that he is 42 years old and married with three children. He was until recently employed as a caretaker at a transport company.
10. The testimonial from Sonoma’s wife shows him as a modest and peaceful person and a supportive and loving husband. The written testimonials from the pastor of Sonoma’s church and the pulenu’u of his village also speak positively of him. He is also a first offender.
11. The accused Sonoma has also apologised to the victim Atimalala for the damage he caused to Atimalala’s car and the apology was accepted. Atimalala has forgiven Sonoma. Sonoma has also paid full reparation of $1,000 for all the expenses to repair the damage to Atimalala’s car.

The victims Atimalala and Vaalele

12. The victim impact reports on Atimalala and Vaalele show that they have suffered psychologically and financially from this incident.

The aggravating features relating to the offending

(a) Value of the damage

13. The respective values of the damage caused by each of the accused is an aggravating feature relating to the offending committed by each of them.

(b) Impact of offending

14. The impact on each of the victims of the offending committed by Malu on Vaalele car and by Sonoma on Atimalala’s car is also an aggravating feature relating to the offending by each of the accused.

(c) Premeditation

15. I do not consider that the offending by the accused Malu involved any significant degree of premeditation. His response when the rear windshield of Atimalala’s car was hit by an object and shattered was an immediate reaction on the spur of the moment. He had no time to premeditate. There is also nothing in the summary of facts to suggest that the action of the accused Sonoma was premeditated. Premeditation is therefore not an aggravating feature relating to the offending in this case.

The mitigating features relating to the offending

Provocation

16. Evidently, the accused Malu was provoked by the accused Sonoma throwing a poumuli branch at his cousin Atimalala’s car he was riding in causing the rear windshield to shatter. This is a mitigating feature relating to Malu’s offending.

The mitigating features relating to the accused as offenders

(a) Previous good character

17. The accused Sonoma is a first offender and his character testimonials show that he had been a person of good character prior to the commission of this offending. This is a mitigating feature relating to Sonoma as offender. The same cannot be said of the accused Malu whose weakness is alcohol and has a previous conviction for drunkenness in 2013.

(b) Apology and reconciliation

18. The accused Sonoma has apologised to the victim Atimalala for the damage to his car. Atimalala accepted the apology and has forgiven Sonoma who has paid $1,000 for all the expenses to repair the damage to Atimalala’s car.
19. The accused Malu has also reconciled with the victim Vaalele and his brother Sonoma and has paid $2,500 for the costs to repair the damage he caused to Vaalele’s car.
20. The said apology and reconciliation are mitigating features relating to the accused as offenders.

(c) Reparation

21. The reparations paid by the accused to the victims for the damage to their cars is a mitigating feature relating to each of the accused as offender.

(d) Guilty pleas

22. The guilty pleas by both accused at the earliest opportunity is a mitigating feature relating to each of them as offender.

Discussion

23. Having regard to the aggravating and mitigating features relating to the offending by the accused Malu and the mitigating features relating to him as offender, I have decided to give him another chance to redeem himself and not to impose a custodial sentence. Likewise, having regard to the aggravating features relating to the offending by the accused Sonoma and the mitigating features relating to him as offender, I have decided to give him a second chance and not to impose a custodial sentence.

The result

24. The accused Malu is convicted and placed under supervision for 8 months. As special conditions of his supervision, he is to abstain from alcohol consumption during his term of supervision and to attend counselling and the alcohol rehabilitation programs conducted by the probation service.
25. The accused Sonoma is convicted and placed under supervision for 7 months.
    

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CHIEF JUSTICE