Police v Napa [2017] WSSC 22 (12 April 2017)

SUPREME COURT OF SAMOA
Police v Napa [2017] WSSC 22

Case name:	Police v Napa
Citation:	[2017] WSSC 22
Decision date:	12 April 2017
Parties:	POLICE v PERIVE NAPA male of Samusu, Aleipata and Vavau.
Hearing date(s):	12 April 2017
File number(s):	S28/17
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 imprisonment. Any time he has already spent in custody is to be further deducted from that sentence.
Representation:
Catchwords:	Sentence – grievous bodily harm with intent – maximum penalty – aggravating features relating to the offending – first offender – mitigating features relating to the accused as offender – guilty at the earliest opportunity
Words and phrases:	the assault on the victim was vicious and persistent – the assault by the accused on the victim was clearly unprovoked – psycho-education Alcohol and Drugs Programme followed by supervision – starting point for sentence
Legislation cited:	Crimes Act 2013 s.118 (1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

File Number: S28/17

BETWEEN

P O L I C E

Prosecution

A N D

PERIVE NAPA male of Samusu, Aleipata and Vavau.

Accused

Counsel:
O Tagaloa for prosecution
Accused in person

Sentence: 12 April 2017

S EN T E N C E

The charge

1. The accused Perive Napa of Samusu, Aleipata, appears for sentence on one 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. To the charge, he pleaded guilty at the earliest opportunity.

The offending

2. As it appears from the prosecution’s summary of facts accepted by the accused, on Thursday evening 22 December 2016 around 7:00pm, the victim a 51 year old male of Samusu, Aleipata, was drinking alcohol with some of the matais of the village when the accused and his brother arrived and asked for alcohol. One of the matais said not to give any alcohol to the accused and the accused and his brother left.
3. In the course of the evening, the victim went to a nearby shop around 10:00pm and bought a bottle of Vailima beer which he then drank on the side of the main road near the shop. The accused saw the victim and approached him. The accused then punched the victim causing the victim to fall and hit his head on the road. He continued to kick the victim on his hips and on his face numerous times while the victim was lying on the road unconscious. He did not stop until people rushed to the scene and stopped him.
4. The victim was rushed to the Lalomanu district hospital the same night and was later rushed to the Apia National Hospital the same night because of the seriousness of his injuries. He only regained consciousness the next day. The injuries sustained by the victim apart from his unconsciousness were a laceration on the upper left eye, a laceration on the left cheek, and wounds to the head.

The victim

5. The only information about the victim before the Court is that he is a 51 year old male.

The accused

6. Because the accused, after he pleaded guilty to the charge, had informed the Court that he was under the influence of alcohol at the time of the offending, he was referred to the Alcohol and Drugs Court (ADC) clinician for an assessment and recommendation. The recommendation from the ADC clinician is for the accused to attend the six week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme followed by supervision.
7. The accused has attended and successfully completed that programme and he has been issued with a certificate of due completion. The report from the programme facilitator shows that the accused has reported that he has abstained from consuming alcohol.
8. As to the accused’s personal circumstances, he is married with three young children between the age of eight and two years old. He finished school at Year 10. Except for one year that he was employed oat a carpentry shop, he has assisted his family by cultivating a plantation and by fishing. He is the sole provider for his young family.
9. Given the accused’s date of birth shown in the pre-sentence report, he would now be two weeks before he turns 30 years old. He told the probation service that this matter had been settled before Christmas 2016.
10. The accused is a first offender and his wife told the probation service that the accused is a hardworking person and a loving husband.

The aggravating features relating to the offending

11. The assault by the accused on the victim was clearly unprovoked. When the accused and his brother went to where the victim was drinking with some of the matais of the village and asked for alcohol, it was not the victim but one of the matais of the village who said not to give any alcohol to the accused. Apparently, the accused was already under the influence of alcohol at that time.
12. Furthermore, the assault on the victim was vicious and persistent. The degree of violence involved was relatively high. Even though the victim had fallen down and hit his head on the road, the accused continued to kick the victim on the hips and on the face many times whilst the victim was unconscious. So not only was the victim in a vulnerable position when he fell down and hit his head on the road and became unconscious, but some of the kicks were delivered to his head on the facial area.
13. The fact that the victim was rushed to the Lalomanu district hospital the same night and then rushed the same night to the Apia National Hospital for treatment is some testimonial to the nature of the injuries sustained by the victim. The victim only regained consciousnesses the next day.
14. There is no aggravating feature relating to the accused.

The mitigating features relating to the accused as offender

15. The accused is a first offender and it appears from what his wife told the probation service that he is a hardworking person and a loving husband. This matter has also been settled as the accused told the probation service. The accused has also attended and completed the six week Toe Afua Se Taeao Fou Programme and the programme facilitator says in his report that the accused informed him that he has refrained from alcohol. The accused has also pleaded guilty to the charge against him.

Discussion

16. After giving careful consideration to the aggravating features relating to the offending, I will take 3 years as the starting point for sentence. I will deduct 8 months for the mitigating features relating to the accused as offender. That leaves 2 years and 4 months. I will deduct 1/3 or 9 months for the early guilty plea. That leaves 19 months. I will deduct a further 7 months for the accused having successfully completed the six week Toe Afua Se Taeao Fou Programme and that he reports to have refrained from alcohol. That leaves 12 months.

Result

17. The accused is convicted and sentenced to 12 months imprisonment. Any time he has already spent in custody is to be further deducted from that sentence.

CHIEF JUSTICE