Police v Vaivai [2016] WSSC 179 (14 March 2016)

IN THE SUPREME COURT OF SAMOA
Police v Vaivai [2016] WSSC 179

Case name:	Police v Vaivai
Citation:	[2016] WSSC 179
Decision date:	14 March 2016
Parties:	POLICE (Prosecution) PITONE VAIVAI, male of Matautu Lefaga. . (Defendant)
Hearing date(s):	-
File number(s):
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Nelson
On appeal from:
Order:	On each charge convicted and sentenced to 2½ years in prison but terms to be served concurrently. Remand in custody time to be deducted.
Representation:	F Ioane for prosecution Defendant unrepresented
Catchwords:	-
Words and phrases:
Legislation cited:
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

PITONE VAIVAI, male of Matautu Lefaga.
Defendant

Counsel: F Ioane for prosecution
Defendant unrepresented

Sentence: 14 March 2016

SENTENCE

1. Defendant faces two separate charges of causing serious injuries to two different victims. The police summary of facts says the defendant is a 43 year old male of Lefaga, employed as a carpenter. The first victim is a 30 year old male of Matautu Lefaga and the second victim is a 32 year old also of Matautu Lefaga. They are in fact relatives of the defendant. When the facts were placed before the defendant he disputed through his counsel certain parts thereof so a disputed summary facts hearing was conducted. I heard testimony from the two victims in question plus a further witness as well as the defendant as to what supposedly happened.
2. The facts I find as follows: on the evening in question 12 September 2015 the defendant and the victim were all drinking at Return to Paradise bar at Lefaga but in different groups. By the time the bar closed at about midnight and the defendant and victims left the bar, they were all intoxicated. The defendant himself said he had been drinking Vailima from 4:00 pm that day and at 10:00 pm he switched to drinking spirits. After 12:00 o’clock when the bar had closed he was on his way home with a bottle of alcohol. It was on the way home the confrontation occurred between him and the two victims.
3. The victims testimony was the defendant engaged in an unprovoked attack on both of them. That the defendant hit the first victim without warning with a bottle in the head and then used the broken bottle to stab the second victim in the neck. Defendant on the other hand said these two men were about to attack him and in fact the second victim had thrown stone at him which hit him on the back. That is why he hit the first victim with the bottle and stabbed the second victim with the broken bottle.
4. It is difficult to accept that someone would do these things without provocation. I do not think the victims are as innocent as they tried to make themselves out to be at the hearing. The defendants version seems to me to make more sense and especially since there had been some dispute the week before between the defendant and these men.
5. Pitone the injuries you caused are very serious. The first victim Kolose had a scalp wound which needed three stitches at the hospital. The second victim Eseli had a wound to the side of his neck which fortunately missed the major arteries. He needed eight stitches for that wound as well as hospital treatment. I saw the scar, the wound has left a prominent permanent scar.
6. Your use of a weapon Pitone namely a bottle as well as a broken part of bottle on two different people means a jail term is unavoidable for your matter. The fact that you were all drunk that is not an excuse. The message the court must send by its sentence to you and others is that if you do this sort of thing with a bottle you will likely end up in jail.
7. The maximum penalty for each of these two offences is 10 years in prison. Considering all the circumstances of your matter however I will start sentence at half of the maximum viz 5 years in prison. From this you are entitled to certain deductions which your lawyer has also referred to in his written submission in mitigation.
8. Firstly for your guilty plea a one-quarter deduction of penalty that is a period of 15 months, leaves 45 months. I accept that this was an attack that was to some extent provoked but your retaliation was seriously out of proportion to the provocation. But to recognize that fact I will deduct 3 months from your sentence leaves 42 months.
9. You have a good pre-sentence report Pitone from the probation office. That report is supported by references and people who speak well of your character. You also have a clean criminal record this is your first appearance before the law. To recognize those factors 6 months deducted, leaves a balance of 36 months.
10. This matter has been reconciled, that was confirmed by the victims testimony to the court I deduct a further 6 months for that, leaves a balance of 30 months.
11. No other deductions can be made in respect of your sentence Pitone, on each charge convicted and sentenced to 2½ years in prison but terms to be served concurrently. Remand in custody time to be deducted
    

JUSTICE NELSON