Police v Luataei [2016] WSSC 171 (31 August 2016)

THE SUPREME COURT OF SAMOA
Police v Luataei [2016] WSSC 171

Summary of decision:

Case name:	Police v Luataei
Citation:	[2016] WSSC 171
Decision date:	31 August 2016
Parties:	POLICE (Prosecution) v VAOMUA LUATAEI male of Saanapu Safata (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tafaoimalo Tuala Warren
On appeal from:
Order:	For the charge of causing serious bodily injury with intent, the accused is convicted and sentenced to 6 months imprisonment. This is followed by 6 months supervision during which time the accused will attend the 6 weeks program for alcohol and drugs through the Alcohol and Drugs Court. For the charge of being armed, the accused is convicted and sentenced to 4 months imprisonment. All sentences of imprisonment to be served concurrently so that he will serve 6 months imprisonment followed by 6 months supervision. Time spent in custody to be deducted.
Representation:	O. Tagaloa and V. Afoa for Prosecution Accused unrepresented
Catchwords:	serious bodily injury, being armed with a dangerous weapon
Words and phrases:
Legislation cited:	Crimes Act 2013, section 118(1), Police Offences Ordinance 1961 section 25,.
Cases cited:	Police v Fuiono [2011] WSSC 83 (26 July 2011), R v Ward [1976] 1 NZLR 588 R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594, 597 R v Howe [1982] 1 NZLR 618. See also R v Ottewell [1970] AC 642, 650, [1968] 3 ALL ER 153, 158 (HL) R v Power [1973] 2 NZLR 617 (CA); Baumer v R [1988] HCA 67; (1988) 166 CLR 51 (HCA).: Rapana v Police (High Courtkland AP281AP281/91, 28 November 1991, Tompkins J).

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

VAOMUA LUATAEI male of Saanapu Safata
Accused

Counsel:
O. Tagaloa and V. Afoa for Prosecution
Accused unrepresented

Sentence: 31 August 2016

S E N T E N C E

The charge

1. The accused appears for sentence on two charges; one of causing serious bodily injury with intent pursuant to section 118(1) Crimes Act 2013 which carries a maximum penalty of 10 years imprisonment and one charge of being armed with a dangerous weapon which carries a maximum penalty of 1 year imprisonment pursuant to section 25 of the Police Offences Ordinance 1961.
2. He pleaded guilty to both charges on 8 August 2016.

The offending

3. The Prosecution summary of facts admitted by the accused says that on 21 July 2015, at around 4pm at Saanapu, the accused was drinking alcohol at a friend’s place. At around 7pm, the victim went to the shop to buy alcohol. The accused and his friends were drinking infront of the shop. The shop owner told the men drinking infront of the shop to leave because they were not allowed to drink there. The victim also told the accused and his friends to leave because they were not allowed to drink there. Immediately after that, the accused hit the victim with a beer bottle which hit him on the face and caused him to fall to the ground. The accused then struggled with the victim while he was holding a broken bottle. The broken bottle injured the victim during the struggle by cutting his left ear. The cut to the victim’s ear was about 1.5 inches long.

The accused

4. The accused is 52 years old and single. He works as an electrician earning $500 per week and tends his plantation for export to get additional income for his family.
5. He lives with his elderly father and sister at Saanapu.
6. The sister of the accused says that their family relies on the accused for financial support and he is a reliable member of their family.
7. The faifeau and village mayor also provided references for the accused in which both say that the accused is a helpful and humble member of their village. The faifeau does say that the accused has a weakness with alcohol and he becomes a different person when under the influence of alcohol. This faifeau is the community justice supervisor who supervised the last sentence of supervision which was handed down to the accused in 2013.
8. The accused says about the offending that he cannot recall remarks made by the victim but remembers hitting the victim with a full bottle of vailima beer.
9. The accused has previous convictions for assault in 1997 and actual bodily harm in 2013.

The victim

10. According to the victim impact report provided to the Court, the victim is 30 years old from Saanapu. He is married with 2 children and currently unemployed.
11. He says that as a result of the actions of the accused, his face was injured, in particular his left eye and forehead were lacerated by the broken bottle. His left ear was also injured and required 9 stitches. The right side of his head was fractured. He spent almost $400.00 in transportation costs to go to the hospital and back to change his bandages.
12. The victim could not work after this and it has had an impact on his ability to support his family financially.
13. He says that he knows the accused and has forgiven him as the family of the accused have apologised and presented his family with $500.00 and a fine mat.

Aggravating features of the offending

14. It is aggravating that the accused attacked the victim with a bottle and caught him completely unawares. The victim then sustained a serious injury to his left ear from a broken bottle held by the accused during a struggle. The injuries were to the victim’s face, head and ear as a result of the actions of the accused. As a result of these injuries, the victim has suffered financial loss in going to the hospital and his inability to work has affected his family.

Aggravating features in respect of the offender

15. The Court considers that it is an aggravating feature in respect of the accused that he has two previous convictions also for violent offending, the latest being in 2013.
16. In determining the weight of aggravation to be found in previous convictions, it is helpful and important to canvass again the decision of His Honour Chief Justice Sapolu in Police v Fuiono [2011] WSSC 83 (26 July 2011) in which he says;

Whilst previous convictions are relevant to establish the character of an accused for sentencing purposes and whether he has a predilection to commit a particular type of crime, a sentencing Judge should be on guard against sentencing an accused twice for the same offences on which he had previously been convicted and sentenced. This has been explained in many cases but it would be sufficient for present purposes to refer to Sentencing Guide (1994) by G G Hall where the learned author said at 1.6.12, B/191:

"Regard may be had to an offender's record when imposing sentence. This matter is not without its difficulties as the Court has to reconcile two principles; on the one hand the acceptance of the preventive purpose of punishment, and, on the other, the rejection of punishing an offender again for earlier offences: R v Ward [1976] 1 NZLR 588. In that case the Court of Appeal said that an authoritative statement of the policy which the court should adopt where it thinks it necessary to protect the public from the depredations of persistent offenders is to be found in an earlier judgment of the Court pronounced by Sir Michael Meyers CJ in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594, 597 where he said:

"The Court should always be careful to see that a sentence of a prisoner who has been previously convicted is not increased merely because of those previous convictions. If a sentence were increased merely on that ground it would result in the prisoner being, in effect, sentenced again for an offence which he has already expiated. We agree that the sentence passed ought to bear some relation to the intrinsic nature of the offence and gravity of the crime. But it by no means follows that the previous convictions must be ignored. It is necessary to take them into consideration, because the character of the offender frequently affects the question of the nature and gravity of the crime, and a prisoner's previous convictions are involved in the question of his character. Further, the previous convictions of a prisoner may indicate a predilection to commit the particular type of offence of which he is convicted, in which case it is the duty of the Court, for the protection of the public, to take them into consideration and lengthen the period of confinement accordingly".

"The compromise adopted by the Court of Appeal is that previous convictions may be examined to establish the character of an offender and to assist in the determination of the punishment that is appropriate for a person of that character for the particular offence committed: see eg R v Howe [1982] 1 NZLR 618. See also R v Ottewell [1970] AC 642, 650, [1968] 3 ALL ER 153, 158 (HL). Previous convictions are regarded as being relevant to a prediction of the offender's future behaviour, and to the determination of the likelihood of an offender responding positively to a particular form of sentence.

"While the number and nature of previous convictions is a significant factor in sentencing (as it is illustrative of contempt for authority, and is thus relevant to an assessment of culpability), primarily regard must be had, when determining the appropriate sentencing level, to the intrinsic nature and gravity of the offence charged. A sentence must not be increased merely because an offender has previous convictions, with the result that he is thereby punished twice for the same offence: Casey (above); R v Power [1973] 2 NZLR 617 (CA); Baumer v R [1988] HCA 67; (1988) 166 CLR 51 (HCA).

"A person is not to be sentenced on his or her record. Criminal record is relevant to the extent that if the offender has no previous convictions he or she is generally entitled to substantial mitigation as a first offender (see para 1.6.6). In relation to the length of the offender's criminal record, mitigation progressively becomes less significant until it becomes ultimately non-existent.

The learned author of Sentencing Guide (supra) then went on to say:

"The second feature identified in the extract from the judgment in R v Casey [1931] NZGazLawRp 20; [1931] NZLR 594 and re-affirmed in R v Ward [1976] 1 NZLR 588 is that the commission of several offences of the same or similar type will normally result in an offender receiving a more severe sentence on the basis that the previous convictions indicate a predilection to commit a particular type of crime. Previous offences may be so numerous and so persistent that a lengthy sentence of imprisonment needs to be imposed because of the need to remove the offender from the community in order to protect its safety, and, where appropriate, its property: Rapana v Police

17. I am mindful that any uplift to sentence does not punish the accused twice for offences he has been convicted and sentenced, but will achieve the purpose of protecting the public.

Mitigating Factors

18. The fact that the accused was drinking alcohol at the time of the offending is not a mitigating factor. It is important that this is made clear.
19. The family of the accused apologised to the victim and his family and gave $500.00 and a fine mat. The Court will take this into account.
20. His early guilty plea to the charges is a mitigating factor.

Discussion

21. The purposes of sentencing in this case are; to hold the accused 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 accused was involved; to deter him and others from committing the same or a similar offence and to protect the community from the accused.
22. Prosecution has recommended an imprisonment term. Probation has recommended a community based sentence. I find that the accused needs both, a deterrent sentence in the form of imprisonment and then some rehabilitation by way of programs to address his alcohol consumption. If this root of his offending is not addressed, this accused will end up reoffending and many more lives will be affected in the same way as this victim’s life. At his age of 52 years, it is high time that the accused gives some serious thought to abstaining from alcohol.
23. Having regard to the aggravating features relating to this offending, I take 10 months imprisonment as a starting point for sentence. I will add on 2 months for the aggravating features relating to him, that is, his previous convictions. This increases the starting point to 12 months. I will then deduct 3 months for the apology, and 1/3 or 3 months for his early guilty pleas.

Sentence

24. For the charge of causing serious bodily injury with intent, the accused is convicted and sentenced to 6 months imprisonment. This is followed by 6 months supervision during which time the accused will attend the 6 weeks program for alcohol and drugs through the Alcohol and Drugs Court.
25. For the charge of being armed, the accused is convicted and sentenced to 4 months imprisonment.
26. All sentences of imprisonment to be served concurrently so that he will serve 6 months imprisonment followed by 6 months supervision.
27. Time spent in custody to be deducted.

JUSTICE TAFAOIMALO TUALA-WARREN