Police v Fagota [2017] WSSC 55 (29 May 2017)

THE SUPREME COURT OF SAMOA
Police v Fagota [2017] WSSC 55

Case name:	Police v Fagota
Citation:	[2017] WSSC 55
Sentence date:	29 May 2017
Parties:	POLICE (Prosecution) v Fagota male of Falefa Accused
Hearing date(s):	29 May 2017
File number(s):
Jurisdiction:	Criminal
Place of delivery:	The Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Clarke
On appeal from:
Order:	The accused is accordingly convicted and sentenced to 11 months imprisonment. On his release from prison, he is to commence a 12 week alcohol program as soon as practicable as directed by the Probation Service and he is to successfully complete that program. This sentence is concurrent to the accused’s current imprisonment term.
Representation:	O. Tagaloa for Prosecution Defendant self-represented
Catchwords:
Words and phrases:	Assault with intent to cause grievous bodily harm – aggravating features personal to the offender – mitigating features – starting point for sentencing
Legislation cited:	section 118(1) of the Crimes Act 2013.
Cases cited:	Police v Puleo [2012] WSSC 76, Nelson J
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

FAGOTA male of Falefa
Accused

Counsel:
O. Tagaloa for Prosecution
Defendant self-represented

Sentence: 29 May 2017

S E N T E N C E

2. The accused appears for sentencing on one charge of assault that on the 1^st December 2016, with intent to cause grievous bodily harm wounds Tini Faumuina Masua, a male of Neiafu and Faleapuna that at Matafele on the 1^st December 2016 in breach of section 118(1) of the Crimes Act 2013. The offence carries a maximum penalty of 10 years imprisonment.
3. The accused entered a guilty plea to the charge on the hearing date.

The Offending

4. According to the Prosecution Summary of Facts accepted by the accused, on the 1^st December 2016, the accused, the victim and other males of their village had “a drink up at one of their mate’s house.” The accused and the victim then engaged in a “lauga fa’a Samoa”. The accused became annoyed, he then “approached the victim holding rocks and assaulted the victim on his forehead several times.” As a result, the victim suffered two vertical lacerations on his forehead about 1cm in depth which required debridgment and suturing. The victim was then sent home with oral antibiotics and pain relief.
5. The medical report filed by the prosecution prepared by Dr Kamara Pouono, TTMH House Surgeon says that the victim on examination smelt of alcohol but was otherwise alert, not in any obvious distress and was conversing and responding appropriately to questions asked. I have also perused the photographs of the victim submitted by prosecution.
6. According to the Pre Sentence Report (PSR), the Pulenu’u of the accused’s village gave 3 large bottles of vodka to the accused and about 4 others who had completed work for the pulenu’u as payment for their labour.

The Accused

7. The accused is a 38 year old male from Falefa. He told the Court he is unmarried and has no children.
8. In his PSR, the accused says he was raised by his father’s family at Falefa. He is the third of his parent’s 11 children. He was educated at Falefa primary school and completed school to year 12 at Anoamaa College. In 2004, he was convicted of murder. He was granted parole on the 25^th September 2014 after serving 10 years and 1 month imprisonment. In prison, he has developed skills in hair dressing and laboring.
9. When he was released from prison, the accused worked in construction but subsequently took up work as a barber at the flea market earning $150.00 per week. According to the PSR, until this incident, the accused had been complying well with his parole conditions.
10. While the accused accepts the Summary of Facts, he said he cannot recall the assault due to his intoxication. While the Accused said he cannot recall the incident, I do not accept based on the Summary of Facts that he did not possess the mental element or intent in relation to the offending. He had engaged the victim in a “lauga fa’a Samoa”, he became annoyed with the victim as a result of that apparent competition and then took a rock and used it to strike the victim on the head with it. His actions at the time of the offending were purposeful and intentional.
11. In his statement to the Court, the accused accepts that alcohol has been the primary cause of his imprisonment and was disappointed and remorseful for his actions.

The Victim

12. The victim is a 47 year old male of Falefa and a matai who participated in the drinking session with the accused. The victim has reconciled with him, apologized and paid $200.00 to cover expenses as a result of the incident. He did so together with his parents. The accused attended with the victim at the PSR interview. In the interview, the victim ‘wholeheartedly forgave” the accused and the victim pleaded for the indulgence of the Court upon Solomua.

Aggravating features:

13. The aggravating features of this matter are as follows:

• The accused was on parole and a term of his parole was that he was prohibited from consuming alcohol;
• the use of a rock;
• more than one blow inflicted on the victim;
• the wounds suffered by the victim requiring stitching;
• the attack focused on the victim’s head;
• alcohol was a contributing factor to the offending; and
• the accused has prior convictions for violent offending including convictions for murder (2004), assault actual bodily harm (08.09.2003) and assault (03.04.2003).

The mitigating features

14. There are no mitigating features in respect of the offending. Personal to the accused is his guilty plea late as it was, his reconciliation and apology to the victim and the compensation paid to the victim by the accused. I also take into account the genuine remorse expressed by the accused at sentencing.

Discussion

15. When the accused committed this offending, he was on parole. A term of his parole was that he was prohibited from consuming alcohol, which he told the Court he believed only related to prohibition on consuming alcohol at Vaitele. I do not accept this. Furthermore, the accused said that his imprisonment, presumably for murder as that is the only offence for which he has been imprisoned, also related to offending associated with alcohol. This is also reflected at p. 2 of the PSR.
16. The accused said that he had been drinking the vodka, the type commonly known as fagu “Maso”. This is one of the inexpensive locally produced spirits available in Samoa. Many of the matters that come before our Courts stem from groups of men drinking large quantities of this type of alcohol, generally in their village or community setting, becoming intoxicated and then their drinking session turns to violence. It is unfortunately a well worn track for many men who end up in Prison for violent offending.
17. For the accused, it is also a track he has also walked before. Unfortunately for him, he has failed to learn lessons from his past to guide his future. If you cannot consume alcohol responsibly, then you should not consume alcohol at all. For the accused, he drank to excess despite his parole conditions. A deterrent sentence is required both to denounce the accused’s conduct and as a deterrent to others including prisoner’s on parole to comply with their parole terms not to consume alcohol. It will also however include a rehabilitation component with the aim that when the accused is re-released from prison, he is better able to address his issues with alcohol.
18. In sentencing the accused, I note from the Summary of Facts, the medical report and the photographs submitted by the prosecution that the two wounds suffered by the accused were not debilitating nor were the wounds the most serious that come before the Courts. The victim on examination was alert, not distressed and the wounds required stitching to the two lacerations on his forehead. He was released from hospital without any necessity to be kept in hospital.
19. In Police v Puleo [2012] WSSC 76, Nelson J stated, under the earlier provisions of the Crimes ordinance 1960:

“...The defendant was charged with grievous bodily harm and he has pleaded guilty to that charge. ... Penalties for this sort of attack in previous cases range from 12 months to 3 plus years in prison. These sentences are aimed at deterring offenders both actual and potential from engaging in this sort of drunken behaviour. Behaviour which we see far too often in our country.”

20. Bearing in mind what Nelson J stated above and the cases to which I have been referred to by prosecution in their submissions, I adopt 12 months start point for sentencing. I uplift this by 3 months for the aggravating features personal to the offender. For his apology accepted by the victim, compensation paid and genuine remorse, I deduct 2 months. For his guilty plea, I deduct 2 months, late as it was.

The penalty

21. The accused is accordingly convicted and sentenced to 11 months imprisonment. On his release from prison, he is to commence a 12 week alcohol program as soon as practicable as directed by the Probation Service and he is to successfully complete that program. This sentence is concurrent to the accused’s current imprisonment term.
    

JUSTICE LEIATAUALESA DARYL CLARKE