Police v Fiumalosi [2016] WSSC 1 (20 January 2016)

SUPREME COURT OF SAMOA
Police v Fiumalosi [2016] WSSC 1

Case name:	Police v Fiumalosi
Citation:	[2016] WSSC 1
Decision date:	20 January 2016
Parties:	POLICE v ALIITAEAO FIUMALOSI male of Faletagaloa Safune and Vaitele-uta.
Hearing date(s):
File number(s):	S3635/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE
On appeal from:
Order:	- Discharged without conviction and ordered to pay $150 costs to the prosecution.
Representation:	P Chang for prosecution Accused in person
Catchwords:	causing actual bodily harm with intent – maximum penalty – guilty plea – aggravating and mitigating features - 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

FILE NO: S3635/15

BETWEEN

P O L I C E--
Prosecution

A N D

ALIITAEAO FIUMALOSI male of Faletagaloa Safune and Vaitele-uta.
Accused

Counsel:
P Chang for prosecution
Accused in person

Sentence: 20 January 2016

S E N T E N C E

The charge

1. The accused appears for sentence on the charge of causing actual bodily harm with intent, contrary to s.119 (1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment. When this matter was called for mention on 30 November 2015, the accused pleaded not guilty to the charge against him. On 7 December 2015, he applied for his case to be re-called because he wanted to change his plea from not guilty to guilty. This case was then re-called on 14 December 2015 and the accused vacated his not guilty plea and substituted it with a guilty plea.

The offending

2. The accused and the victim are cousins and live together in the same house at Vaitele-uta which belongs to the accused’s parents. They refer to each other as brothers. Both of them are from Savaii. The accused is single and is 21 years old and the victim is married with one child and is 26 years old.
3. According to the prosecution’s summary of facts admitted by the accused, on Friday night 6 November 2015, the accused and the victim were consuming alcohol at Vaitele-uta inside their kitchen when the victim realised that his cell phone was missing. He started looking for it but could not find it. He became angry because he could not find his cell phone. So he pulled the table cloth off the dining table causing the glass plates and cups to scatter on the floor. When the accused confronted the victim about what he had done, the victim said he was looking for his cell phone. The accused then punched the victim on the right eye causing the victim to fall down. As a result, the victim sustained a swollen eye and injuries on the back of his head. The accused then left and went to their other house. After a while, the accused returned with the victim’s phone and told him that his phone was inside their other house. It is clear that alcohol played a part in this offending.

The accused

4. The accused told the Court that he is a student at the National University of Samoa studying for a diploma in tourism. He also told the Court that he and the victim are like brothers and they stay together in the same house at Vaitele-uta. The accused and the victim have reconciled and their relationship is back to normal again.
5. The accused is also a first offender and he appears to have been a person of good character prior to the commission of this offence. As it appears from the pre-sentence report, his mother told the probation service that her son is obedient and hard working and she depends on him in every way. The testimonial from the pastor of the accused’s village in Savaii shows the accused as an obedient, kind and honest person. He is also supportive of youth activities in the village and is a talented sportsman.

The victim

6. The victim is married with one child. He is employed as a carpenter. The victim impact report shows that the accused has apologised to the victim and this matter has been settled between them.
7. As it appears from the pre-sentence report, the victim told the probation service that he did not want this matter to reach the Court. Because he wanted to go to the hospital to treat his injury, he called police. That was how the police found out about this matter. But he wants this matter to be withdrawn as it has been settled. He also told the probation service that the accused is his cousin and they regard one another as brothers.

The aggravating and mitigating features

8. The aggravating features relating to this offending are the punch delivered by the accused and the resulting injuries to the right eye of the victim and to the back of his head when he fell down. These must have been relatively minor injuries to the back of the victim’s head.
9. The mitigating features relating to the accused as offender are his apology to the victim and the reconciliation between the two of them, the fact that the accused is a first offender and had been a person of good character prior to the commission of this offence, and his early guilty plea.
10. I am also mindful of the fact the accused is still a student at the NUS and a relatively young man. The offence was not premeditated but occurred on the spur of the moment when the victim pulled the table cloth off the dining table causing the glass plates and cups that were on the table to scatter on the floor.

Discussion

11. In considering the aggravating and mitigating features, I have come to the view that a non-custodial sentence would be appropriate in this case. I am also of the view that in all the circumstances, a conviction against the accused could have disproportionate consequences for the accused whose future is still very much before him.

Result

12. The accused is discharged without conviction and ordered to pay $150 costs to the prosecution.

CHIEF JUSTICE