Police v Afato [2016] WSSC 203 (29 November 2016)

SUPREME COURT OF SAMOA

Police v Afato [2016] WSSC 203

Case name:	Police v Afato
Citation:	[2016] WSSC 203
Decision date:	29 November 2016
Parties:	AFATO AFATO male of Siusega, Satuiatua and Samauga
Hearing date(s):	29 November 2016
File number(s):	S3264/15-S3266/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Convicted and sentenced to 12 months supervision with the special condition that he attends to the Alcohol and Anger Management Programme of the Probation Service.
Representation:	O Tagaloa for prosecution Accused in person
Catchwords:	Causing actual bodily harm with intent – aggravating features – mitigating features - good character prior to the commission of the present offences
Words and phrases:
Legislation cited:	Crimes Act 2013s.119(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

AFATO AFATO male of Siusega, Satuiatua and Samauga
Accused

Counsel: O Tagaloa for prosecution

Accused in person

Sentence: 29 November 2016

S E N T E N C E

The charges

1. The accused Afato Afato of Siusega appears for sentence on one charge of causing actual bodily harm with intent, contrary to s.119(1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment and two charges of assault, contrary to s.123 of the Act, each of which carries a maximum penalty of one year imprisonment. The accused pleaded guilty to the assault charges at the earliest opportunity. However, he initially pleaded not guilty to the charge of causing actual bodily harm with intent but subsequently changed his plea to one of guilty.

The offending

2. As shown from the prosecution’s summary of facts agreed to by the accused, there are two victims in this matter. The first victim is a 32 year old male and the second victim is a 34 year old male. On Friday night, 11 September 2015, at around 10:30pm, the first victim and a friend were playing billiards at one side of the Black Nose Bar at Tuanaimato. They were winning all their games against their opponents. It was then the turn of the accused and his partner to play against the first victim and his friend. At that time, the accused who had been drinking alcohol before he came to the Black Nose Bar where he consumed more alcohol was under the influence. He told the Court that while he was playing the billiard ball, the first victim was dancing. This made him angry. So he engaged in a brief verbal argument with the first victim before punching him on the mouth.
3. At that time, the second victim was drinking with his younger brother on the other side of the Black Nose Bar. He saw the accused punched the first victim. He then approached the accused and asked him about what was happening. However, the accused punched him on the nose. It must have been a powerful punch for the second victim was bleeding from his nose that whole night and his nostrils were clotted with blood for about two weeks affecting his breath.
4. People at the bar intervened and stopped the accused and the matter was reported to the police. The prosecution’s summary of facts also states that the accused has no previous convictions.

The accused

5. As shown from the pre-sentence report, the accused, who is 39 years, is the youngest of his seven (7) siblings. He finished school at Year 13. He then found employment as a fireman with the Fire and Emergency Services Authority (FESA) where he has now been working for twenty (20) years. He is currently holding the position of principal fire officer. He is married with four young children ranging in age from 10 years to 5 months. He is the sole breadwinner for his family as well as his parents. He also has a loan of $70,000 that he is still repaying.
6. The accused’s wife told the probation service that her husband is a hardworking person and that his present offending is out of character. The character testimonial from the pastor of the accused’s church shows the accused as a frequent church goer and a peaceful person. He participates in the activities of his church and is a member of its youth and choir. The character testimonial from the FESA shows the accused as a hardworking, responsible, and dedicated employee. His work performance has been of a high standard. He is also said to be mature, loyal, and trustworthy.
7. The accused, as earlier mentioned, is also a first offender. He has also apologised to both victims and his apologies were accepted.

The aggravating features relating to the offending

8. For clarity, the accused is charged with assault on the first victim who did not sustain any physical injuries. He is also charged with assault and causing actual bodily harm with intent to the second victim. The aggravating features of his offending are therefore that it involved two victims and the impact of the nose injury to the second victim. The assault on the second victim also appears to have been unprovoked.

The mitigating features relating to the offending

9. There are no mitigating features relating to the offending.

The aggravating features relating to the accused as offender

10. There are no aggravating features relating to the accused as offender.

The mitigating features relating to the accused as offender

11. The mitigating features relating to the accused as offender are the fact that he had been a person of good character prior to the commission of the present offences as shown from his character testimonials, his apologies to the victims which were accepted, and his guilty plea to all three charges against him even though his guilty plea to the charge of causing actual bodily harm with intent was rather belated.

Discussion

12. After giving careful consideration to the aggravating features relating to the offending and all mitigating features relating to the accused as offender, I have decided to impose a non- custodial sentence. But I must warn the accused that if he appears before the Court again on a criminal offence, particularly one which involves the use of violence, then he runs the real risk of going to prison. It is therefore in his own interests not to re-offend.

Result

13. The accused is convicted and sentenced to 12 months supervision with the special condition that he attends to the Alcohol and Anger Management Programme of the Probation Service.

CHIEF JUSTICE