Police v Paulo [2016] WSSC 69 (25 April 2016)

SUPREME COURT OF SAMOA
Police v Paulo [2016] WSSC 69

Case name:	Police v Paulo
Citation:	[2016] WSSC 69
Decision date:	25 April 2016
Parties:	POLICE v FITI PULE PAULO and PASEKA VAIFALE ALEKI both males of Samalaeulu, Savaii
Hearing date(s):	25 April 2016
File number(s):	S.252/16
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPLU
On appeal from:
Order:	- Accused Fiti is convicted and sentenced to 8 months imprisonment. Any time he has already spent in custody is to be further deducted. - Accused Paseka is convicted and sentenced to 5 months imprisonment to be followed by 6 months community supervision. Any time Paseka has already spent in custody is to be further deducted. It is recommended to the prison authorities that Paseka is to serve his custodial sentence at Vaiaata prison in Savaii so that he can still attend school at Tuasivi under appropriate arrangements made by the prison authorities.
Representation:	L Sua-Mailo for prosecution Accused in person
Catchwords:	Sentence – causing grievous bodily harm – armed with a dangerous weapon – maximum penalty – guilty pleas – aggravating and mitigating features – mitigating features relating to the accused as offenders – starting point for sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.118 (1)
	Police offences Ordinance 1961s.25
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO S.252/16

BETWEEN

P O L I C E
Prosecution

A N D

FITI PULE PAULO and PASEKA VAIFALE ALEKI both males of Samalaeulu, Savaii.
Accused

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 25 April 2016

S E N T E N C E

The charges

1. The accused Fiti Pule Paulo (Fiti) is 26 years old and the accused Paseka Vaifale Aleki (Paseka) is 18 years old. Both of them are from the village of Samaleulu in Savaii. The victim Ioapo Tulaga is 37 years old and he is also from the same village.
2. The two accused appear for sentence on a joint charge of causing grievous bodily harm with intent, contrary to s.118 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment. The accused Paseka also appears for sentence on an individual charge of being armed with a dangerous weapon without a lawful purpose, contrary to s.25 of the Police offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. To these charges, the accused pleaded guilty at the earliest opportunity.

The offending

3. According to the prosecution’s summary of facts as amended, on 29 December 2015 the accused Fiti was drinking alcohol with the victim around 11:30pm at night. The victim in his drunken state said to Fiti that he is not afraid of anyone in the village. At that time, the accused Paseka approached the victim and the victim said to Paseka as to why he was approaching him and whether he wanted to be beaten up. This angered Paseka who then went to the back of his family’s house and returned with an iron pipe. He hit the victim’s head from behind with the pipe and the victim fell to the ground. Fiti then punched the victim on the face while the victim was lying on the ground. Paseka then again hit the victim’s head twice with the pipe while Fiti was punching and kicking the victim on the face. As a result, the victim sustained a broken jaw. It appears from the testimonial by the victim’s mother to the probation service that the victim was hospitalised due to his injury.
4. As it appears from the pre-sentence report on the accused Paseka, he told the probation service that he heard someone swearing on the road in front of his family’s house. He came out to see who it was and he saw it was the victim. He then told the victim not to swear again as his grandmother is at home. However, the victim rudely replied he has no business.

The victim

5. There is no victim impact report but it appears from the testimonial from the victim’s mother to the probation service that the victim was hopitalised for his broken jaw. The victim’s mother also told the probation service that her son is a difficult person. He is also a troublemaker and he has been beaten up many times by other people. She is still trying to tell her son to change his behaviour and to turn a new leaf.

The accused

6. As the pre-sentence report on the accused Fiti shows, when he left school at the end of Year 11 he assisted his father with their family plantation and cultivating Samoan tobacco. He has been doing this up to now. Fiti is also single. His mother told the probation service that Fiti is a humble person and a most reliable member of their family and she still does not believe her son’s involvement in this offending. Perhaps the influence of alcohol was the main contributing factor. Fiti is also a first offender.
7. The victim’s mother in her written testimonial to the probation service confirms that the Sa’o and the matais of Fiti’s family have apologised to her and presented $400 and she was deeply touched by the apology. She accepted the apology. She also says that she is related to the family of Fiti. The pulenuu of Samalaeulu in his written testimonial to the probation service confirms that Fiti was penalised by the village and his fine of $1,500 has been paid.
8. The accused Paseka is a student. He completed college at Year 13 and is presently studying technology at the don Bosco School in Tuasivi. His mother told the probation service that her son is an obedient and reliable person who is willing to help anyone who needs his assistance. Paseka is also a first offender.
9. The pulenuu of Samalaeulu in his written testimonial to the probation service confirms that Paseka was penalised by the village and his fine of $1,500 has been paid.

The aggravating and mitigating features relating to the offending

10. The aggravating features relating to the present offending are the extent of the violence involved, the nature of the injury suffered by the victim, the use by the accused Paseka of a metal pipe to hit the victim, the fact that all the blows delivered by Fiti and Paseka were aimed at the victim’s head, the fact that this was a joint attack by two men on a single victim, and the vulnerability of the victim as the accused continued to attack him when he was already on the ground.
11. On the other hand, there is also a mitigating feature relating to the offending. There was an element of provocation from the victim not only because of his challenging remarks to Fiti but his swearing in front of the house of Paseka’s family at a very late hour of the night while Paseka’s grandmother was at home. The victim’s rude response when asked by Paseka to stop swearing added to the provocation.

The mitigating features relating to the accused as offenders

12. The mitigating features relating to both Fiti and Paseka as offenders are their previous good characters, the heavy penalties their families have paid to the village, and their early guilty pleas.
13. In respect of Fiti, the Sao and matais of his family have also apologised to the victim’s mother and presented her with $400 cash which was accepted. In respect of Paseka, his young age and the fact that he is still a student are also mitigating features relating to him as offender.

Discussion

14. Having regard to the aggravating and mitigating features relating to the offending, I will adopt the starting point for sentence of 2½ years recommended by the prosecution. I will then deduct 6 months for previous good character. That leaves 2 years.
15. In respect of Fiti, I will deduct a further 3 months for the apology by the matais of his family to the victim’s mother. That leaves 21 months. I will deduct a further 9 months for the heavy fine his family has paid to the village. That leaves 12 months. I will then deduct 1/3 or 4 months for the early guilty plea. That leaves 8 months.
16. In respect of Paseka, I will deduct 3 months from 2 years for his young age. That leaves 21 months. I will deduct a further 9 months for the heavy fine his family has paid to the village. That leaves 12 months. I will then deduct 1/3 or 4 months for his guilty plea. That leaves 8 months. Because of the young age of this accused and the need for rehabilitation for him, I will impose a shorter custodial sentence to be followed by a term of community supervision.

Result

17. The accused Fiti is convicted and sentenced to 8 months imprisonment. Any time he has already spent in custody is to be further deducted.
18. The accused Paseka is convicted and sentenced to 5 months imprisonment to be followed by 6 months community supervision. Any time Paseka has already spent in custody is to be further deducted. It is recommended to the prison authorities that Paseka is to serve his custodial sentence at Vaiaata prison in Savaii so that he can still attend school at Tuasivi under appropriate arrangements made by the prison authorities.

CHIEF JUSTICE