Police v Pulou [2017] WSSC 29 (21 April 2017)

SUPREME COURT OF SAMOA
Police v Pulou [2017] WSSC 29

Case name:	Police v Pulou
Citation:	[2017] WSSC 29
Decision date:	21 April 2017
Parties:	POLICE v LAGAVALE PULOU male of Faleula.
Hearing date(s):	20 April 2017
File number(s):	S3003/16
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
	- Convicted and sentenced to 10 months supervision and ordered to perform 40 hours of community service as directed by the probation service.
Order:	-
Representation:	L Sua-Mailo for prosecution Accused in person
Catchwords:
Words and phrases:	Causing actual bodily harm with intent – common assault - expressed remorse to the Court - penalised by the village council - programme facilitator - reconciliation between the accused and each of the victims -Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme -
Legislation cited:	Crimes Act 2013 ss.118 (1), 119 (1), s123
	Police Offences Ordinance 1961 s.25
Cases cited:	Police v Wilson [2006] WSSC 83 R v Tauaki [2005] NZCA 174
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E

Prosecution

A N D

LAGAVALE PULOU male of Faleula.

Accused

Counsel: L Sua-Mailo for prosecution
Accused in person

Sentence: 21 April 2017

S EN T E N C E

The charges

1. The accused, a male of Faleula, 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; one charge of causing actual bodily harm with intent, contrary to s.119 (1) of the Act, which carries a maximum penalty of 7 years imprisonment; one charge of common assault, contrary to s.123 of the Act, which carries a maximum penalty of one year imprisonment; and one charge of being armed with a dangerous weapon, namely, a stone, contrary to s.25 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. To all these charges, the accused pleaded guilty at the earliest opportunity.

The offending

2. As shown from the prosecution’s summary of facts confirmed by the accepted, on Friday night 7 October 2016, the accused was drinking three large bottles of Taula beer under a breadfruit tree at his village of Faleula. He had bought these bottles of beer from a nearby shop in his village. Whilst drinking, the accused saw the first victim, a 33 year old male of his village. The accused called out to the first victim to come and when the first victim came to him, the accused punched the first victim causing the first victim to fall down unconscious. Someone who was at the shop intervened and stopped the accused who then left the scene of the first assault.
3. At that time, the second victim is a 53 year old male of the accused’s village, had just arrived intoxicated from an office party and was walking home without noticing the accused who attacked him from behind by punching his left eye and nose. The second victim also fell down unconscious. The accused then dragged the second victim to the other side of the road and removed the his clothes leaving only his boxers. The second victim only regained consciousness around 3:00am in the morning .
4. After the assault on the second victim, the accused continued to a nearby shop where he found the third victim, a 46 year old male of his village, who was intoxicated and sleeping in a faleoo by the main road. The accused then assaulted the third victim by kicking him and punching his face with a stone whilst the third victim was sleeping. Someone who was around told the accused to stop but the accused continued on with the assault. The third victim was taken to the Apia National Hospital the same night and was admitted for four days. The injuries sustained by the third victim were a laceration on his left eye and a fracture on his left jaw.
5. The accused was only arrested by the police on 9 December 2016. When the charges against het accused were called for mention on 16 January 2017, he entered a plea of guilty.

The Alcohol and Drugs Court

6. After the accused pleaded guilty to the charges against him, he replied to a question from the Court that he had been under the influence of alcohol at the time of the offending. He was therefore referred to the Alcohol and Drugs Court (ADC) clinician for an assessment and a report. The report from the ADC clinician recommended that the accused be referred to the probation service with the condition that he attends the 6 week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme to be followed by supervision.
7. The accused has attended and completed the said 6 week programme and has been issued with a certificate of due completion. The report by the program facilitator of the ADC shows that the accused has demonstrated insight into his own substance use and the effects it has had not only on himself but also on others. The accused also reported to the programme facilitator that he has been abstaining from alcohol for more than four months and he appears to the programme facilitator to be committed to maintaining the goals he has set during the programme. The programme facilitator also appears confident that the accused will continue to utilise the strategies and skills he has learnt from the programme to support the current change he has made to his lifestyle.

The accused

8. As shown from the pre-sentence report, the accused is 20 years, single, and presently unemployed. He finished school at Year 12. He then found a job at a caké shop where he was employed for one year when this offending occurred. Since then, he has been staying at the house of a senior police officer for supervision at the request of his mother but he visits his home sometimes.
9. The accused’s mother told the probation service that her son is an obedient child who is caring for his parents. She attributes her son’s offending to peer association. She has asked for mercy.
10. The pulenu’u of Faleula also appeared in Court at sentencing and informed the Court that the accused has been penalised by the village council and his family presented $1,000 and a large fine mat for the accused’s penalty. This money was distributed amongst the three victims and there has been a reconciliation between the accused and each of the victims. The second victim confirmed to the probation service that he was given $200 from the accused’s penalty. The other two victims could not be located by the probation service.
11. The accused is a first offender and has expressed remorse to the Court. He also told the Court that since this offending, he has abstained from drinking alcohol. He also pleaded guilty to the charges against him at the earliest opportunity.

Some relevant comments

12. The aggravating and mitigating features in relation to a grievous bodily offending as well as the sentencing bands for such offending as set by the New Zealand Court of Appeal in R v Taueki [2005] NZCA 174 have been adopted by this Court in Police v Wilson [2006] WSSC 83. However, causing grievous bodily harm with intent is not the only charge in this case. There are also three other charges, namely, common assault, causing causing actual bodily harm with intent, and being armed with a dangerous weapon (a stone).
13. Because this case involves injuries, I refer to Police v Niko [2013] WSSC 65, para 12, where this Court pointed out and that minor injuries which include grazes, scratches, abrasion, minor bruising and swellings, superficial cuts and reddening of the skin would justify a charge of common assault. The kind of injuries which would justify a charge of assault occasioning actual bodily harm include loss or breaking of a tooth or teeth, extensive multiple bruising, displaced broken nose, minor fractures, temporary loss of sensory function which may include loss of consciousness, and minor, but not superficial, cuts of a sort which might require medical attention in the form of stitching. Grievous bodily harm is concerned with serious injuries.
14. The third victim, according to the prosecution’s summary of facts, sustained a laceration on his left eye and a fracture to his left jaw. On the basis of Police v Niko [2013] WSSC 65, para 12, the laceration to the left eye of the third victim if, it is only a superficial cut, would only justify a charge of common assault. But if the laceration is more than a superficial cut, then a charge of causing actual bodily harm would be justified. So it is important to be clear about the nature of the laceration. The medical report could have been produced. It is also not clear whether the fracture to the left jaw of the third victim was minor or serious. In terms of Police v Niko, if the fracture was minor, that would justify only a charge of causing actual bodily harm; but if the fracture was serious, then the charge of causing grievous bodily harm with intent is justified. The importance of determining the nature of the injuries is that the maximum penalties for common assault, actual bodily harm, and grievous bodily harm are quite different.

The aggravating features relating to the offending

15. The following are the aggravating features relating to the offending in this case:

(a) Number of victims

16. There are three victims in this case each of whom was the object of a separate attack by the accused.

(b) Attacking the head

17. It is clear from the summary of facts that in all the assaults carried out by the accused, he attacked the head of each victim. He must have punched the first victim in the head area because the punch caused the first victim to fall down unconscious. He also punched the second victim on the left eye and nose. With the third victim, the accused kicked and punched his face.

(c) Use of a weapon

18. The accused used a stone to punch the third victim on the face.

(d) Vulnerability of victims

19. The second victim who was unaware of the accused was attacked from behind. After the second victim fell down unconscious, the accused dragged him to the other side of the road and removed his clothes leaving only his boxers. The third victim who was intoxicated was attacked whilst asleep.

(e) Impact of the offending

20. There were no victim impact reports but it appears from the summary of facts that the third victim was hopitalised for four days.

The mitigating features relating to the accused as offender

21. The following are the mitigating features relating to the accused as offender.

(a) Young age

22. The accused is a first offender and he is now 20 years old but it appears from the pre-sentence report that he was 19½ years at the time of the offending. He had just come out of school for about a year when this offending occurred.

(b) Remorse

23. The accused expressed remorse to the Court for his offending. He has also stayed with a senior police officer in his village for supervision.

(c) Punishment by the village

24. The accused has been punished by the council of his village and his family presented $1,000 and a large fine mat to the village. The money was distributed amongst the victims.

(d) Reconciliation

25. The pulenu’u of the accused’s village informed the Court that there has been a reconciliation between the accused and each of the victims.

(e) Early guilty plea

26. The accused had pleaded guilty to the charges against him at the earliest reasonable opportunity.

(f) Completion of the Toe Afua Se Taeao Fou rehabilitation programme

27. The accused has attended and completed the 6 week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme. The programme facilitator has provided a good report on the accused which shows, inter alia, that the accused had abstained from alcohol for 4 months. The accused also told the Court that since the offending, he has abstained from alcohol consumption up to now which shows that the programme of the ADC has been useful to the accused.

Discussion

28. I have given careful consideration to the aggravating and mitigating features of this case. Usually a sentence of imprisonment is imposed for this type of offending. However, this offending was committed whilst the accused was under the influence of alcohol. He was also 19½ years old at the time of the offending. The Toe Afua Se Taeao Fou programme he has completed shows that there has been a charge in his lifestyle as shown by his abstinence from alcohol. He has also informed the Court that he has abstained from alcohol consumption since of this offending up to now. In weighing all the relevant factors, I have decided to give the accused the chance to continue to turn a new leaf in his life while he is still at a young age.

Result

29. The accused is convicted and sentenced to 10 months supervision and ordered to perform 40 hours of community service as directed by the probation service.

CHIEF JUSTICE