SUPREME COURT OF SAMOA
Police v Tauanuu [2016] WSSC 56

Case name: 	Police v Tauanuu	
		
Citation: 	[2016] WSSC 56	
		
Decision date: 	21 April 2016	
		
Parties: 		
		
Hearing date(s): 	21 April 2016	
		
File number(s): 	S 2715/158,S2716/15

Jurisdiction: 	Criminal	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	CHIEF JUSTICE SAPOLU	
		
On appeal from:		
		
Order:	-	Discharged without conviction and ordered to pay costs of $100 to the prosecution.

Representation: 	L Sua-Mailo for prosecution
D Roma for accused

Catchwords: 	Sentence – aggravating and mitigating features - 	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s119 (1)
Criminal Procedure Act 1972 s.104 (1) 	
		
Cases cited:		
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

S 2715/158,S2716/15

BETWEEN

P  O  L  I  C  E
Prosecution

A  N  D

SIO TAUANUU male of Tuanai.
Accused
Counsel:	
L Sua-Mailo for prosecution
D Roma for accused

Sentence:	21 April 2016

S E N T E N C E 
The charge
1. 	The accused Sio Tauanuu is a 17 year old male of Tuanai.  He appears for sentence on a joint charge of causing actual bodily harm, contrary to s.119 (1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment.  To the charge, the accused pleaded guilty at the earliest opportunity.
2. 	It appears from the charge that the first named accused is the accused’s older brother who is 22 years old and the third named co-accused is 21 years old.  So the present accused is the youngest of the accused.  The victim is a 35 year old male.
The offending 
3. 	The facts of this case as shown from the prosecution’s summary of facts and what the accused told the probation service as shown from the pre-sentence report are that on the night of 13 June 2015, the victim and friends were drinking alcohol on the road in front of the house of the accused’s family.  The accused’s father approached the victim and told him and his friends to go and drink elsewhere as it is prohibited to drink on the road.  The accused’s father approached another group of young men who were drinking nearby and also told them to leave as they should not be drinking there.  One of these young men was a cousin of the victim and after voicing disgruntled remarks, they got up and went and joined the victim and his friends.  After a short while, the accused’s father returned and told the victim and the other men with him that they should leave and go and drink elsewhere.  One of the men responded to the accused’s father which made the other men laugh.  According to the accused, the victim made some rude remarks and swore at his father.  The accused’s older brother who is the first named accused heard the victim and walked over and exchanged heated words with the victim resulting in a fist fight.  As the victim’s brother was fighting with the victim, a cousin of the victim walked over and became involved in the fight siding with the victim.  At that time, the accused walked over to the victim’s cousin and punched him on the back causing him to fall to the ground.  This was the only punch thrown by the accused.  As the victim’s cousin was trying to get up, the third named accused struck his head with a crowbar causing him to fall back on the ground bleeding.  At that time, the victim who had escaped came back with an automatic rifle but someone intervened and snatched the gun from him.  As a result of the assault, the victim sustained lacerations on his face and his body and a cut on his chin.
The accused
4. 	At age 17 years, the accused is still attending school.  After school, he assists his family by selling crops from their plantation around the village.  The accused is also a first offender.  His mother told the probation service that her son is honest, obedient and hardworking.  She pleads for mercy on her son.  The testimonial from the bishop of the accused’s church describes the accused as a regular churchgoer who is well liked and supportive of the activities of his church.  The accused, however, has been banished from his village.
The victim 
5. 	The victim impact report refers to the injuries sustained by the victim and the impact of those injuries on the victim.  However, the prosecution’s summary of facts shows that the accused did not assault the victim.  The accused only punched the back of the victim’s cousin.  There is no victim impact report on the victim’s cousin.  The victim, however, has also been banished from Tuanai.
The aggravating and mitigating features
6. 	This is a straight forward case of assault against the accused.  There is no evidence that his one punch to the back of the victim’s cousin resulted in any injuries.  Perhaps, the only aggravating feature of this assault by the accused is that it was inflicted from behind the victim’s cousin causing him to fall down.  The effect of alcohol on the victim’s cousin who has been drinking is not clear.  The mitigating features of the offending are the provocations from the victim and his cousin.  The victim uttered some rude remarks and swore at the accused’s father after the accused and his friends were told not to drink on the road but to go and drink elsewhere.  This led to the fist fight between the accused’s brother and the victim.  The victim’s cousin then joined in and sided with the victim.  This led to the accused punching the victim’s cousin on the back.  It was only one punch.  There was little room for any premeditation.  The involvement of the accused was more a spur of the moment reaction.
7. 	In relation to the accused as offender, there is no aggravating feature but there are mitigating features.  The accused is a youth of 17 years who is still attending school.  He is a first offender and a person of previous good character.  He has also suffered punishment by being banished from his village.  He has also pleaded guilty at the earliest opportunity.
Discussion
8. 	Counsel for the accused seeks a discharge without conviction under s.104 (1) of the Criminal Procedure Act 1972.  She submits that having regard to the young age of the accused who is still a student with his future still very much before him, a conviction would be a hardship out of proportion to the particular circumstances of the accused’s offending.  Given the fact that the accused only punched the victim’s cousin once on the back, I have decided to accept the submission by the accused’s counsel.
Result 
9. 	The accused is discharged without conviction and ordered to pay costs of $100 to the prosecution.
CHIEF JUSTICE