SUPREME COURT OF SAMOA
Police v Papalii [2016] WSSC 114

Case name: 	Police v Papalii	
		
Citation: 	[2016] WSSC 114	
		
Decision date: 	15 July 2016	
		
Parties: 	POLICE v ENESI PAPALII male of Faatoia and Sapapalii Savaii (defendant)	
		
Hearing date(s): 	-	
		
File number(s): 	S755/2016	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	JUSTICE VAAI	
		
On appeal from:		
		
Order:	For this offence you are convicted and placed on Probation for 18 months.   The conditions of your probation are that:
(i) 	attend any management programme and any other similar courses as directed by the Probation Service.  
(i)	to pay costs of prosecution of $600 tala through the Probation Service by monthly installment of $200 tala, first payment 17th August 2016.	
		
Representation: 	F Ioane for prosecution
P Mulitalo for defendant 	
		
Catchwords: 	causing grievous bodily harm – no serious injuries – previous convictions – counseling 	
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

S755/2016

BETWEEN:
		
POLICE
Prosecution

AND:

	ENESI PAPALII male of Faatoia and Sapapalii Savaii
Defendant

Counsel:	F Ioane for prosecution
P Mulitalo for defendant

Sentence:	15 July 2016

S  E  N  T  E  N  C  E
	1.	Defendant, this offending of causing grievous bodily harm occurred on the night of the 10th March at the Samoa Lager Taxi stand.  You were inside the shed answering the calls when the victim came along, and in a way challenged you, and started walking towards you.  
	2.	It was between 11 – 12 midnight and the victim was heavily intoxicated according to the summary of facts.  From the facts and from the submissions by your counsel, this shed only had one door and that was the door that the victim approached.  
	3.	When the victim arrived at the door you punched the victim on the face causing the victim to fall down.  The victim tried to stand up but you hit him again in the face, and that caused the victim to fall down again.  When the victim tried to get up you again hit the victim.  When the victim fell down the third time you started to kick the victim in the face and head causing the victim to become unconscious.
	4.	From that summary of facts by the prosecution one would expect some very serious injuries to the victim’s face.  But that does not seem to show in the summary of facts.
	5.	According to the summary of facts, the injuries suffered were lacerations to the right parietal area of the scalp about 6cm long, 2cm deep and the second laceration was below the mouth 3cm long.  The point I make is that despite the way the assault was described in the summary of facts, the injuries were not as serious as they should have been.  
	6.	The defendant stands for sentence on the charge of grievous bodily harm and the prosecution is seeking a term of imprisonment.  It is considered that 3 years imprisonment is the appropriate starting point.  The defense on the other hand is asking for leniency and to consider an alternative sentence such as a community based sentence.
	7.	The defendant is 43 years of age according to the probation report he is married with 3 children aged 4 years to the youngest, a 4 month baby.  
	8.	The list of previous convictions is attached to the summary of fact and it is not a very impressive list.  You first appeared in August 1994 on minor charges of throwing stones and willful damage and you were sent to prison.  Four years after that you were convicted in 1998 for burglary and theft and you were again sentenced to prison.  Two years after that you were convicted and sent to prison for burglary and theft.  Your fourth conviction was the most serious of all of your convictions.  In 2002 you were sentenced to 5 years imprisonment for robbery.  You were also convicted twice for possession of narcotics as well as of burglary.  However after 2002 you stayed out of trouble until 2006 when you appear for a very minor offence of being drunk in a public place.  It was not until some 10 years after 2002 that you reappeared in court in 2012 for possession of narcotics and for assault.  You now appear for sentence on this unfortunately very serious offence.
	9.	Having looked at that previous conviction list, one has to be very careful about jumping into conclusion without going deep into that list.  The point I am trying to make is that defendant from looking at that list I am not convinced that you are a hardened criminal.  The only offence involving serious violence was one of robbery in 2002.  The other offences involving violence were common assault and throwing stones.
	10.	It is unfortunate that from looking at your previous conviction list, that for your first appearance you were immediately thrown to prison for that relatively minor offence.  So at a very young age you were denied any chance of rehabilitation.  From looking at your pattern of your offending, there has been a space of an average of 2 years space between your offending.  And that is why I said you are not a habitual criminal.
	11.	From the probation report that it was around 2012 you started a family.  You also took steps to support that family and this offending is some 4 years after your last offending although unfortunately it is a very serious offence.  The prosecution is quite entitled to suggest as they did a custodial sentence given the nature of your offending and the way it viewed your previous conviction.
	12.	In considering the appropriate sentence I must take into account that this incident took place between 11 – 12 midnight while you were working at the taxi base.  You were minding your business inside the taxi shed answering the calls when you were challenged by the victim who was drunk and who was known to be a convicted killer.  
	13.	I accept and you also accept through your counsel that you overreacted after your first punch felled the victim; you could not control your anger.  In any event your involvement in this offending came about as a result of the victim’s challenge and the way he approached where you were working. 
	14.	 It has been 4 years since you last came up before the court and I will now do what I deemed in your interest and the interest of the society should be the appropriate sentence.  I can sense your effort to be a good father and husband and provider for your family but you need help which should have been afforded to you when you first appeared in 1994.    Your wife and family undoubtedly are assisting you and there are testimonials attached to the probation report from your religious leader, your pulenuu as well as your wife.  You need counseling from others as suggested in the probation report and I am prepared to give you the chance to obtain that counsel.
	15.	For this offence you are convicted and placed on Probation for 18 months.   The conditions of your probation are that:
(i) 	attend any management programme and any other similar courses as directed by the Probation Service.  
(ii) 	to pay costs of prosecution of $600 tala through the Probation Service by monthly installment of $200 tala, first payment 17th August 2016. 
JUSTICE VAAI