Police v Asotau [2016] WSSC 129 (20 May 2016)

SUPREME COURT OF SAMOA
Police v Asotau [2016] WSSC 129

Case name:	Police v Asotau
Citation:	[2016] WSSC 129
Decision date:	20 May 2016
Parties:	POLICE v TAVITA ASOTAU male of Magiagi
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:	Convicted sentenced to 10 months supervision pursuant to s.12 of the Community Justice Act 2008 for each offence, to be served concurrently. As a special condition of his sentence, he is to undergo alcohol counseling through Probation and he is to stay away from alcohol.
Representation:	F Ioane for prosecution Accused in person
Catchwords:	Intentional damage – armed with a stone –summary of facts – aggravating and mitigating features – alcohol counseling programme - sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s. 184(2)(a) Police Offences Ordinance 1961 s. 25 Community Justice Act 2008 s. 12
Cases cited:	Police v Lipa [2013] WSSC 63(29 July 2013)
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

TAVITA ASOTAU male of Magiagi
Accused

Counsel:
F. Ioane for Prosecution
Accused in person

Sentence: 20 May 2016

S E N T E N C E

The charge

1. The accused appears for sentence on two charges, one of intentional damage , contrary to s.)(a) ofa) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment, and one of being armed with a stone pursuant to s.25 of the Police Offences Ordinance 1961. The charge of being armed carries a maximum penalty of 1 year imprisonment He pleaded guilty to the charges on 11 April 2016. He has been in custody since 13 March 2016.

The offending

2. According to the summary of facts admitted by the accused, on 12 March 2016, the accused was hanging out with some boys at a bus shelter at Magiagi after 12 midnight. One of the boys who was with the accused had a phone which was taken from the RSA night club. When the owner of the phone arrived in a taxi to collect her phone, the accused picked up a rock and used it to punch the taxi. As a result the back window of the taxi was shattered into pieces.

Background of the accused

3. The accused is 22 years old, single and lives with his parents at Magiagi. He is the fourth of nine children. Prior to his arrest, he worked at Penehuro’s Art Studio at Lelata earning $100 per week. His mother says in the Pre-Sentence Report that the accused is a reliable and supportive member of their family and his weekly wages are used for family commitments and church donations. She does say that he has a weakness when it comes to alcohol and he always gets into trouble when he consumes alcohol.
4. There has been no reconciliation for this matter.
5. The accused is a first offender.

The Victim

6. No Victim Impact Report was provided by Prosecution as ordered by the Court.
7. Prosecution does confirm that the value of the damaged rear windscreen is SAT$1650.00.

The Aggravating Features of the Offending

8. It is aggravating that the actions of the accused were unprovoked. The taxi driver did nothing to provoke this attack.
9. The taxi driver was an innocent person who has suffered financial loss to the amount of $1650.00 as a result of having to replace his rear window. This is not an insignificant amount. This is aggravating.
10. It is aggravating also that a stone was used as the potential to injure someone is great.

Mitigating Factors

11. It is a personal mitigating factor that the accused has never been in trouble with the law and he entered an early guilty plea to his charges showing his remorse and acceptance of responsibility for his actions.
12. The accused has also shown remorse in Court by his apology and has told the Court that he has learnt a valuable lesson.

Discussion

13. Before I impose sentence it is important that the Court delivers a message about this type of offending. Too often in our society we see the ease with which people use stones as a way to frighten, harm, and even bring death to others, as well as damage property. This is such a case which has resulted in property damage. It is a cowardly act to use a stone in such a way. The Court will not stand by and allow this to continue. We must work towards changing mindsets about the harmfulness of using stones as weapons.
14. 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. I use Chief Justice Sapolu’s words in the case of Police v Lipa [2013] WSSC 63(29 July 2013), the facts of that case not too dissimilar to this one;
    • “What remains in my opinion is balancing the public interest in the protection of society from the kind of actions committed by the accused and the public interest in the rehabilitation of the accused. In weighing these public interests, I have come to the view that in this case the public interest in the rehabilitation of the accused should take precedence”.
15. Similarly in this case, given the age of the accused and the reliance placed on him by his family, rehabilitation will be part of his sentence so that he can be assisted with his drinking behaviour at this young age. He has also been in custody for over 2 months and no doubt his time in custody has shown him what awaits him if he reoffends.

Sentence

16. The accused is convicted sentenced to 10 months supervision pursuant to s.12 of the Community Justice Act 2008 for each offence, to be served concurrently. As a special condition of his sentence, he is to undergo alcohol counselling through Probation and he is to stay away from alcohol.
    

JUSTICE TUALA-WARREN