Police v Toeava [2016] WSSC 144 (8 August 2016)

THE SUPREME COURT OF SAMOA
Police v Toeava [2016] WSSC 144

Case name:	Police v Toeava
Citation:	[2016] WSSC 144
Decision date:	8 August 2016
Parties:	POLICEv FOUINA TOEAVA male of Levi Saleimoa & FA’ATASIGA SOFENI male of Levi Saleimoa
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	I convict and sentence the accused Fouina to 6 months imprisonment. This is to be followed by 6 months supervision during which time he will undertake the 6 weeks alcohol and drugs program with Probation. I convict and sentence the accused Fa’atasiga to 12 months supervision with the special conditions that he is to remain in school until he completes Year 12, he is to apologise to the victim, he is not to consume alcohol and at the end of this school year, he is also to participate in the 6 weeks program for alcohol and drugs. If he breaches any of these conditions, he will most likely face an imprisonment term.
Representation:	P. Chang for Prosecution Accused in person
Catchwords:	causing grievous bodily harm with intent – aggravating and mitigating feature
Words and phrases:
Legislation cited:	Crimes Act 2013 pursuant to section 118(1)
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

FOUINA TOEAVA male of Levi Saleimoa & FA’ATASIGA SOFENI male of Levi Saleimoa
Accused

Counsel:
P. Chang for Prosecution
Accused in person

Sentence: 8 August 2016

S E N T E N C E

The charge

1. The accused appear for sentence on one charge of causing grievous bodily harm with intent pursuant to s 118(1) Crimes Act 2013. The maximum penalty for this offence is 10 years imprisonment.
2. They pleaded guilty to the charge on 18 July 2016.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 18 June 2016, at 9 pm, the victim and his cousin were walking home. They met the accused on the road. The victim swore at the accused and threatened to shoot them. The accused Fouina told the accused Fa’atasiga to start a conversation with the victim so that he could punch him. At that time the victim was looking at his phone. The accused Fouina then punched the victim on the right jaw and as a result the victim fell down. The victim got up from the ground and ran away with his cousins to avoid the accused. The accused Fa’atasiga chased after the victim and punched the victim on his back.
4. As a result of the punch, the victim sustained a fractured jaw.

The accused

5. As shown in the pre-sentence report, the both accused are 17 years old from Levi, Saleimoa. Both are single. Fouina is unemployed and Fa’atasiga attends Wesley College.
6. Fouina is the third of his parents’ four children. He had been at Levaula College in Year 11 but discontinued his education as a result of this matter. He now stays at home doing family chores.
7. His father described him to Probation as reliable and obedient.
8. Fouina explains his offending as provoked by the victim who swore at them and threatened to shoot them all. Fouina had been drinking a bottle of Taula.
9. He is a first offender.
10. Fa’atasiga is the youngest of his parents’ eight children. He attends Year 12 at Wesley College. He tells Probation that he wants to complete his education and get a scholarship overseas.
11. His mother told Probation that he is a good person who assists with family chores, and this offending is out of character. He had also been drinking a bottle of Taula.
12. Fa’atasiga also tells Probation that the victim swore at them and threatened to shoot them all.
13. He is a first offender.
14. There has been no reconciliation of this matter.
15. Of concern to the Court is what both accused told Probation that their coach had encouraged them to drink alcohol. The parents of the accused need to address this.

The victim

16. The victim impact report given to the Court says that the victim is 24 years old from Levi Saleimoa.
17. He says that when he was punched, he fainted and felt dizzy.
18. He sustained a fractured jaw as a result of the punch and to date he is still recovering from his injuries. His jaw was wired for six weeks in which time he could only drink milk. He still feels pain when he eats and can only eat rice and soup. He is also still on medication. He lost his job due to the time needed to recover which has had an impact on his siblings as he was the breadwinner for the family.
19. The accused have not apologised to him or his family for this matter.

Aggravating features of the offending

20. It is aggravating that the victim suffered a serious injury which is still painful, that is a fractured jaw. The impact on him physically has been significant as he still has not recovered and his jaw was wired for 6 weeks. He also lost his job and his ability to support his family. The impact on the victim has been significant.
    • It is also aggravating that the accused ganged up on the victim and both of them assaulted the victim.
    • It was also a premeditated attack as evident from the summary of facts. The accused Fouina told the accused Fa’atasiga to start a conversation with the victim so that he could punch him.

Mitigating Factors

21. I do not consider the consumption of alcohol to be a mitigating factor or an excuse for this offending. Neither do I consider their first offender statuses mitigating factors. At 17 years old, they have not proven themselves to be of good character. They should not be consuming alcohol at the age of 17 years old.
22. I do however consider Fa’atasiga’s involvement in this offending as a mitigating factor. He did not throw the punch which fractured the victim’s jaw. His attendance at school is also a factor I take into account in mitigation.
23. For both accused I take into account their young ages of 17 years old.
24. Their early guilty pleas to the charge is a mitigating factor.

Discussion

25. Prosecution has recommended a starting point of imprisonment of 18 months to 3 years for this offending.
26. This type of offending is too prevalent and the message needs to be sent to the public that such behaviour is not condoned. The impacts on this victim are very drastic, not only in terms of the physical impact to him but also the impacts upon his family as he is no longer able to work. The actions of the accused are not without consequences.
27. I will deal with the accused separately.

Fouina Toeava

28. The accused Fouina carries the brunt of this offending. He instigated the idea to assault the victim and threw the punch which fractured the victim’s jaw. He has not apologised which shows a lack of remorse on his part. Even if the Court accepts that the victim swore and threatened to shoot them, he should have walked away and gone home. He is 17 years old and should not have taken it upon himself to counter the victim’s comments with violence.
29. Having considered the aggravating features of the offending, in particular the extent of the victim’s injury and the accused Fouina’s involvement, I take 12 months imprisonment as the starting point for sentence. I deduct 3 months for his age and 3 months for his early guilty plea.

Sentence

30. I convict and sentence the accused Fouina to 6 months imprisonment. This is to be followed by 6 months supervision during which time he will undertake the 6 weeks alcohol and drugs program with Probation.

Fa’atasiga Sofeni

31. Having considered the accused Fa’atasiga’s involvement in this offending, I find that a non-custodial sentence is appropriate in this case. Section 13 of the Community Justice Act 2008 states that a Court may impose a sentence of supervision only if the Court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender. Section 16 of the same Act states that the Court may impose such special condition or conditions related to the rehabilitation or reintegration of an offender as the Court thinks necessary.
32. I convict and sentence the accused Fa’atasiga to 12 months supervision with the special conditions that he is to remain in school until he completes Year 12, he is to apologise to the victim, he is not to consume alcohol and at the end of this school year, he is also to participate in the 6 weeks program for alcohol and drugs.
33. If he breaches any of these conditions, he will most likely face an imprisonment term.

JUSTICE TUALA-WARREN