Police v Evalu [2016] WSSC 28 (18 January 2016)

IN THE SUPREME COURT OF SAMOA
Police v PJ EVALU & Anor [2016] WSSC 28

Case name:	Police v PJ EVALU & Anor
Citation:	[2016] WSSC 28
Decision date:	18 January 2016
Parties:	Police (informant) and PJ EVALU and Eteuati ALIITAVINI both males of Alafua (defendants)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Tuatagaloa
On appeal from:
Order:	Both accused are convicted and sentenced to 80 hours’ community service each and 12 months’ supervision.
Representation:	Ms Sio & Ms Tumua for the Prosecution Defendants in Person
Catchwords:	Causing grievous bodily harm – both first offenders – 5 year starting point – non-custodial sentence
Words and phrases:
Legislation cited:	Crimes Act 2013 s. 118(1),
Cases cited:	Police v Eliku Vaifale & Sakalia Elika (15 July 2013)
Summary of decision:

THE SUPREME COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

P O L I C E
Informant

AND:

PJ EVALU & ETEUATI ALIITAVINI, both males of Alafua
Defendants

Counsel:
Ms Sio & Ms Tumua for the Prosecution
Defendants in Person

Hearing Date: 18 January 2016

SENTENCE OF JUSTICE TUATAGALOA

The charge:

1. PJ and Eteuati you have both pleaded guilty to causing grievous bodily injuries to Sinei Tamapa’a of Lepea and Seesee. The penalty is maximum of 10 years’ imprisonment under s 118(1) Crimes Act 2013.

The offending:

2. The summary of facts and pre-sentence report are consistent. You have both confirmed the summary of facts which basically say that:
   • On 14 November 2015 at night, the victim approached the first defendant’s mother about her pigs coming on to his land and damaging his land.
   • The victim approached the first defendant’s mother on their land with stones swore at and threatened the first defendant’s mother.
   • The first defendant heard and saw what was happening, ran over and punched the victim who fell down and hit his head the cement.
   • The second defendant also heard and saw what happened went over with a piece of timber and hit the victim while on the ground. Meanwhile the first defendant continued punching the victim.
   • The matter was reported to police on the same night and the victim was taken to the hospital.
3. The defendants are cousins. The defendant PJ Evalu is 20 years’ old whose mother was insulted and threatened by the victim. PJ is a first offender.
4. PJ’s mother Fetu told probation services that PJ would never initiate trouble but his anger had got the best of him in this incident. PJ’s employer, Silva Transport confirmed that PJ had worked for them for 3 years and is honest and hard working.
5. The co-defendant Eteuati Aliitavini is 21 years’ old and lives at Tafagamanu, Lefaga. On the day of the incident, Eteuati had come from Lefaga to his aunt’s house at Alafua to help her with her traditional medicines.
6. Eteuati works on his own plantation at Lefaga. His village mayor and religious minister have provided character references which vouch for his good character and spoke highly of his service within the village and to his church at Lefaga. It is also Eteuati’s first time in Court.
7. The parents of both defendants have apologised to the victim’s family while the victim was admitted in hospital.

The victim:

8. The victim who is 46 years’ old and the defendant, PJ Evalu are neighbors at Alafua. The victim works for someone named Alfred Hunt.
9. The victim was treated by Dr Shaun Mauiliu in the early hours of
   15 November 2015 at the National Hospital and Dr Mauiliu noted the following injuries:
   • Injuries to the face, head and right shoulder;
   • CT Scan revealed extensive fracture in the skull and swelling with some bleeding within the brain;
   • The victim was admitted to the hospital for 4 days.
10. The Victim Impact Report basically says the same thing as in Dr Mauiliu’s report. The impact of injuries personally upon the victim, who is the breadwinner of his family and could not work for two (2) weeks, had greatly inconvenienced his family.

The Aggravating Factors:

11. The attack by both defendants upon the victim and especially when he was on the ground and the continuing to assault upon him; the use of a timber by the defendant Eteuati Aliitavini on the victim’s body; the injuries sustained by the victim especially to his head when he fell and hit the cement is quite serious and led to his admission in hospital for 4 days.

The Mitigating Factors:

12. The behaviour of the victim towards the defendant PJ’s mother and
    co-defendant Eteuati’s aunt was very provocative, threatening and culturally offensive and disrespectful. The defendants reacted because of the victim’s behaviour towards their mother and aunt. The Court understands no son or Samoan male would just sit back and let another male threaten and verbally abuse his mother, aunt, or female sibling.
13. The parents of both defendants went to the victim’s family and apologised while the victim was admitted to the hospital. The victim said both accused have never personally apologised to him. The victim impact report has the victim say that although this had not happened, he wished to rekindle his relationship with his neighbour.
14. The defendants’ first offender status and the references provided for each of them confirms or indicate that they are of previous good character. The defendants early plea earn them a 1/3 discount should the Court consider a custodial sentence.
15. The prosecution has referred to a couple of cases as relevant to sentencing of the present case. The prosecution submits that the case of Police v Eliku Vaifale & Sakalia Elika (15 July 2013) as relevant and that a 5 year starting point should be adopted.
16. The present case differs on a number of things from that case:
    • Weapon used was a timber, was only used once. In that case a shovel was used twice and then later on the father and son went back to the victim, ganged up on him and used a rock to punch the victim on the face repeatedly. The victim in that case suffered more and serious injuries and permanent deformed injuries. The assault by the father and son in that case was way out of proportion with any provocation by the victim in that other case.
17. While I am appreciative of the prosecution’s recommendations and the cases they have referred the Court to. The cases they have provided and referred to are not wide ranging to fairly refer the Court to the sentencing options exercised by each sentencing judge of non-custodial to custodial sentences imposed.
18. This Court will impose a sentence that it thinks appropriate to the circumstances of the particular case before it. As such, given the circumstances of this case, a custodial sentence is not an appropriate option.
19. Both accused are convicted and sentenced to 80 hours’ community service each and 12 months’ supervision.
    

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Laulusā Justice Mata Tuatagaloa