Police v Perosi [2016] WSSC 110 (11 July 2016)

SUPREME COURT OF SAMOA
Police v Perosi [2016] WSSC 110

Case name:	Police v Perosi
Citation:	[2016] WSSC 110
Decision date:	11 July 2016
Parties:	POLICE and PESAMINO TITAE PEROSI male of Afega (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:	The accused is convicted of the offence of intentional damage and ordered to come up for sentence in 12 months pursuant to s 113 Criminal Procedure Act 1972. He is not to reoffend or consume alcohol in 12 months commencing today. If he breaches these conditions he will be resentenced. The accused is convicted of the offence of assault and ordered to come up for sentence in 12 months time pursuant also to s 113 Criminal Procedure Act 2016. He is not to reoffend. If he does, he will be resentenced. Both sentences to be concurrent, so that he will be called up for sentence in 12 months time.
Representation:	F. Ioane for Prosecution Accused in person
Catchwords:	Intentional damage – assault – intoxicated – completed Alcohol and Drug programme – first offender – reconciliation taken place – non-custodial
Words and phrases:
Legislation cited:	Crimes Act 2013 ss. 184(2); 123 Family Safety Act 2013 s. 17 Criminal Procedure Act 1972 s. 113
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

PESAMINO TITAE PEROSI male of Afega
Accused

Counsel:
F. Ioane for Prosecution
Accused in person

Sentence: 11 July 2016

S E N T E N C E

The charge

1. The accused appears for sentence on two charges, one charge of intentional damage, contrary to s.184(2) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment and one charge of assault contrary to s.123 Crimes Act 2013, which carries a maximum penalty of 1 year imprisonment.
2. The accused pleaded guilty to the charge of intentional damage on 18 April 2016 and to the charge of assault on 11 July 2016.

The offending

3. According to the summary of facts admitted by the accused, on 10 September 2016 at around 8pm, the accused asked his 12 year old nephew Pauni (first victim) to find a lighter to light his cigarette. However another nephew of the accused gave him a lighter and told him that Pauni was sleeping on a grave. The accused called Pauni to come and slapped his face.
4. Pauni’s mother who is the sister of the accused found out and confronted the accused. She told the accused not to use their refrigerator anymore. This angered the accused and he went inside the house and pushed over the glass safe which stored the second victim’s plates.
5. As a result the following properties were damaged;
   • Glass of the safe valued at SAT$350.00;
   • One dozen glass cups valued at SAT$18.00;
   • Two dozen cups valued at SAT$28.00;
   • Six plates valued at SAT$15.00;
   • Eight saucers valued at $4.50 each;
   • Seven small cups valued at SAT$2.00 each; and
   • Two bowls valued at SAT$18.00 each.
6. The value of the damaged property is SAT$525.00.
7. The accused confirmed to the Court that he was intoxicated at the time of his offending.

Background of the accused

8. The accused is 35 years old, married with two children and unemployed.
9. The accused has completed the 6 weeks programme for drugs and alcohol with Probation. He has a certificate to confirm this.
10. The accused is a first offender.

The Victims

11. No Victim Impact Reports were provided to the Court for either victim.
12. The victim of the assault is the 12 year old nephew of the accused.
13. The victim of the intentional damage is the sister of the accused. She is 51 years old, widowed and has four children. She is a school teacher.
14. Prosecution says that there has been reconciliation of this matter as the accused has apologised to both victims.

The Aggravating Features of the Offending

15. It is aggravating that the offending against both victims took place within the context of a domestic relationship. Section 17 of the Family Safety Act 2013 requires the Court to consider this as an aggravating factor. The first victim is the nephew of the accused who is 12 years old and defenceless against the accused. The second victim is his sister with whom the accused has a covenant in the faaSamoa.
16. It is aggravating that there are two victims of the offending by the accused.
17. It is aggravating that the actions of the accused were unwarranted against both victims, resulting in physical violence against the first victim and causing financial loss of $525.00 to the second victim.

Mitigating Factors

18. It is a personal mitigating factor that the accused attended the programme as ordered by the Court and completed that programme successfully. This shows his willingness to take responsibility for his own rehabilitation and reintegration.
19. The second mitigating factor is his early guilty plea to the charge of intentional damage and a belated guilty plea to the charge of assault.

Discussion

20. Having considered the aggravating factors relating to the offending and the mitigating factors personal to the accused as well as taking into account the sentencing objectives of retribution, deterrence, the need for protection of society, and rehabilitation, I have decided that it is appropriate to impose a non-custodial sentence in this case.
21. The Court has addressed the cause of his offending by sending him to a psycho-education Alcohol and Drugs programme. The accused told the Court that the programme was valuable to him as he now knows the health effects of alcohol as well as its part in family violence. The Court has given the accused an opportunity to be rehabilitated, but if he chooses to reoffend again, a sentence of imprisonment will be a very real possibility. He has also apologised to both victims and in the context of family, reconciliation is to be promoted, albeit within safe boundaries.
22. The victims in this case should not be forgotten, in particular the second victim. She has suffered financial loss due to the actions of the accused. However, Prosecution has told the Court that the second victim does not wish for restitution as the matter has been resolved between her and her brother the accused.

Sentence

23. The accused is convicted of the offence of intentional damage and ordered to come up for sentence in 12 months pursuant to s 113 Criminal Procedure Act 1972. He is not to reoffend or consume alcohol in 12 months commencing today. If he breaches these conditions he will be resentenced.
24. The accused is convicted of the offence of assault and ordered to come up for sentence in 12 months time pursuant also to s 113 Criminal Procedure Act 2016. He is not to reoffend. If he does, he will be resentenced.
25. Both sentences to be concurrent, so that he will be called up for sentence in 12 months time.
    

JUSTICE TUALA-WARREN