THE SUPREME COURT OF SAMOA 
Police v Pati [2016] WSSC 137

Case name: 	Police v Pati	
		
Citation: 	[2016] WSSC 137	
		
Decision date: 	26 July 2016	
	 	
Parties: 	POLICE v SIO PATI male of Toamua	
		
Hearing date(s): 	26 July 2016	
		
File number(s): 		
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Tafaoimalo Leilani Tuala-Warren 	
		
On appeal from:		
		
Order:	•	For the joint charge of causing grievous bodily harm, the accused is convicted and sentenced to 2 years imprisonment. 
•	For the charge of being armed, the accused is convicted and sentenced to 6 months imprisonment.
•	Both sentences to be served concurrently.
•	Any time spent in custody to be deducted.

Representation: 	F. Ioane for Prosecution
Accused in person

Catchwords: 	causing grievous bodily harm - armed with a dangerous weapon – exited from Alcohol and Drugs Court program due to non-compliance	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 section 118 (1) 
Police Offences Ordinance 1961 section 25	
		
Cases cited:	Police v Pati [2016] WSADC 2 
Police v Pati [2016] WSADC 6	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

SIO PATI male of Toamua
Accused

Counsel:
F. Ioane for Prosecution
Accused in person

Sentence: 26 July 2016

S E N T E N C E
The charge
1.	The accused appears for sentence on two charges, one joint charge of causing grievous bodily harm with intent, pursuant to s.118 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment and one charge of being armed with a dangerous weapon, namely a brick, pursuant to s 25 Police Offences Ordinance 1961 which carries a maximum penalty of 1 year imprisonment.
2.	The co-accused to the joint charge has been sentenced by the Court. 
3.	He pleaded guilty to the charges on 21 December 2015.  
The offending 
4.	The Prosecution summary of facts admitted by the accused says that on 21 November 2015, at around 4pm, the victim came across the accused drinking with the other co-accused and his friends next to Bluebird at Vaitele. The victim stayed to drink with the accused. The victim started arguing with the accused and victim punched the accused in the left eye. The co-accused then jumped in and punched the victim and the victim fell down. The co-accused then punched the victim again in side of his stomach while the victim was on the ground. The accused grabbed a brick which was lying on the side of the road and struck the back of the victim’s head with the brick. As a result, the victim fell unconscious and blood started pouring from the back of his head. The accused and co-accused left the scene and the victim was taken to the hospital.
5.	Upon medical examination, the following injuries were noted by the examining doctor;
a)	A 4” C shaped lacerated wound at the right occipital scalp;
b)	His left eye was swollen and bruised with a 1” laceration just below his left eye;
c)	CT scan of the victim’s head and face showed a depressed fracture of the left ethmoid sinus wall with entrapment of the adjacent medial rectus muscle of the left eye. 
The accused
6.	The accused is 25 years old.  He is employed at Ah Liki and is single.
7.	The accused was referred by His Honour Chief Justice Sapolu to a determination hearing in the newly established Alcohol and Drugs Court on 16 February 2016. This is because the accused pleaded guilty to his offending, came from the pilot region from Afega to Laulii, and committed the offence under the influence of alcohol. He was given a sentencing indication of 18 months imprisonment. 
8.	He was screened by the Alcohol and other Drugs Clinician to determine the extent of his alcohol problem. According to the assessment by the AOD clinician, the accused meets the DSM-5 criteria for alcohol dependence. Therefore he was referred to complete the Intensive Outpatient Programme through the Alcohol and Drugs Court. (see Police v Sio Pati and Setefano Pati Nepa, per CJ Sapolu dated 9 February 2016)
9.	The accused was to start his 6 weeks treatment program on 16 February 2016 and was due to report back on 1 March 2016 for monitoring. He did not appear and did not comply with his program and bail conditions. He was given a second chance to appear in Court on 15 March 2016 to tell the Court why he did not comply. He appeared in Court and said he had forgotten and was also sick. He was given a third opportunity to complete his program and appear in Court on 29 March 2016. On 29 March 2016 he did not appear and the Court was informed that he only completed 2 of the 6 weeks. A warrant of arrest was issued and he appeared pursuant to this warrant on 21 June 2016.
10.	On 21 June 2016, the accused was exited from the ADC and remanded to Supreme Court for sentencing. (see Police v Sio Pati, decision  of Tuatagaloa J exiting participant dated 21 June 2016).
11.	The accused has no previous convictions.
The victim
12.	The victim is 36 years old from Toamua and Avao. He is married with five children and works at Ah Liki Wholesale with the accused.
13.	The victim impact report provided to the Court says that the victim lost consciousness at the time of the attack and woke up in hospital.  He sustained an injury to the back of his head. 
14.	He remains fearful of the accused but has forgiven him.
Aggravating features of the offending
15.	It is aggravating that you were one of two people who attacked the victim.
16.	You attacked the victim when he was on the ground and used a brick to hit his head while he was on the ground. The head is an extremely delicate part of the body as it contains the brain, and brain injuries pose a risk to a person’s ability to think, feel and function. The victim lost consciousness and blood was oozing from his head. This was a violent offence. 
17.	The victim suffered injuries to the back of his head as a result of your actions and according to the victim impact report he remains fearful of you.
Aggravating features in respect of the offender
18.	The Court considers that it is an aggravating feature in respect of the accused that he failed to comply with conditions of his participation in the ADC, three times.
19.	According the Justice Tuatagaloa’s exit memorandum dated 21 June 2016, he was formally exited for the following reasons;
a)	Deliberate and persistent failure to comply with programs or bail conditions;
b)	Exited from treatment provider due to serious breaches of treatment setting rules;
c)	acting in a manner which causes the ADC to conclude that continued participation is untenable; and
d)	Participant did not present to ADC treatment services or court for a period of over 14 days.
20.	It shows on his part that he is not remorseful. He has not utilised a valuable opportunity given to him by the Court to address his offending behaviour. He has blatantly disregarded the ADC by his non-compliance.
Mitigating Factors
21.	The fact that you were drinking alcohol at the time of the offending is not a mitigating factor. It is important that this is made clear.
22.	There may have been a degree of provocation by the victim as he punched you first. However in retaliation what you did was disproportionate to the provocation. Your actions came after the victim had been punched twice by the co-accused and was on the ground. Therefore provocation from the victim has limited extenuating value.
23.	There has been an apology and reconciliation between the accused and the victim. This is important as they are co-workers.
24.	His early guilty plea to the charges is a  mitigating factor
Discussion
25.	The purposes of sentencing in this case are; to hold the defendant accountable for harm done to the victim and the community by the offending, to promote in him a sense of responsibility for, and an acknowledgment of that harm; to provide for the interests of the victim of the offence; to denounce the conduct in which the defendant was involved; to deter him and others from committing the same or a similar offence and to protect the community from the defendant. 
26.	It is not a purpose of his sentence today to assist in his rehabilitation and reintegration. This is because he has not embraced the rehabilitative alternative to imprisonment which was extended to him by the ADC. The Court gave him three chances to comply. The Court in undertaking a balancing exercise between the purposes of this sentence has relegated his rehabilitation to the back bench due to his own actions.
27.	I take into account the gravity of the offending which I believe is serious as it was the use of a brick to the head.
28.	The ADC has recommended an imprisonment sentence of 18 months to be imposed as per its sentencing indication given on 9 February 2016. Having regard to the aggravating features relating to this offending, I agree that an imprisonment term is appropriate in this case. 
29.	 I take 3 years imprisonment as a starting point for sentence. I will add on 6 months for the aggravating features relating to him, that is, his failure to comply on three occasions with ADC conditions. This increases the starting point to 3 ½ years. I deduct 6 months for the degree of provocation from the victim. I will also deduct 1/3 for his early guilty pleas
Sentence
30.	For the joint charge of causing grievous bodily harm, the accused is convicted and sentenced to 2 years imprisonment. 
31.	For the charge of being armed, the accused is convicted and sentenced to 6 months imprisonment.
32.	Both sentences to be served concurrently.
33.	Any time spent in custody to be deducted.

JUSTICE TUALA-WARREN