Police v Alofaifo [2017] WSSC 58 (9 June 2017)

SURPEME COURT OF SAMOA
Police v Alofaifo [2017] WSSC 58

Case name:	Police v Alofaifo
Citation:	[2017] WSSC 58
Decision date:	9 June 2017
Parties:	POLICE v ROGER TAULEALEAUSUMAI ALOFAIFO male of Vaitele-uta.
Hearing date(s):
File number(s):	S1586/16-S1588/16
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 supervision on the conditions that he is to attend the probation service anger and alcohol management programme and to perform 40 hours community service
Representation:	L Sua-Mailo for prosecution T V Lei Sam for accused
Catchwords:	Alcohol and Drugs Court – ADC clinician– actual bodily harm with intent – being armed with a dangerous weapon – psycho-education Alcohol and Drugs Programme – grievous bodily harm with intent –Toe Afua Se Taeao Fou
Words and phrases:
Legislation cited:	Crimes Act 2013 s.118 (1), s.119 (1)
	Police Offences Ordinance 1961s.25 (1)
Cases cited:
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:
P O L I C E

Prosecution

A N D:
ROGER TAULEALEAUSUMAI ALOFAIFO male of Vaitele-uta.

Accused

Counsel:
L Sua-Mailo for prosecution
T V Lei Sam for accused

Sentence: 9 June 2017

S EN T E N C E

The charges

1. The accused 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; and one charge of being armed with a dangerous weapon, namely, a 2x4 piece of timber, contrary to s.25 (1) of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. To all charges, the accused pleaded guilty at the earliest reasonable opportunity.

The offending

2. On Friday evening, 10 June 2016, the staff of Silva Transport Ltd, which included both the accused and the victim, had a meeting at their workplace. During the meeting, the owner of Silva Transport Ltd announced a pay rise for the staff and acknowledged their efforts throughout the year. Alcohol was consumed at the meeting to celebrate the staff’s pay rise.
3. The accused told the probation service that after the announcement of the pay rise, the staff agreed that he will respond to their boss and thank him for the staff’s pay rise. However, as the accused was about to speak, the victim, who was working under his supervision, intervened and responded on behalf of the staff to their boss. This irritated the boss and other members of the staff who told the victim to keep quite as he was too intoxicated. However, the victim carried on. The accused who must also have been consuming alcohol told the victim to shut up or he would hit his mouth. This did not stop the victim. The accused then picked up a 2x4 piece of timber which was beside him and started hitting the victim with it. Other members of the staff intervened and stopped the accused.
4. The victim was taken to the hospital the same evening where he was treated for his injuries by a doctor. The report from the doctor shows that the victim sustained the following injuries: a swollen right eye, bleeding in the right eye, bleeding in the nose, a small cut on the right eyebrow, and fractures of eye bones. The doctor also says in his report that a CT scan carried out on the victim showed small bleeding and bruising on the right side of the brain.
5. The victim was treated with antibiotics and was referred to the eye clinic for management. He was discharged from the hospital the same evening.
6. The accused was initially charged with causing actual bodily harm and being armed with a dangerous weapon in the District Court but when the prosecution filed the more serious charge of causing grievous bodily harm with intent, this case was transferred to this Court.

The victim

7. The victim is 32 years old. At the time of this incident, he was employed by Silva Transport Ltd. According to the accused, the victim was working under his supervision.
8. There is no victim impact report so that I do not know whether the injuries inflicted on the victim have had any lasting impact on him.

The accused

9. The accused is 42 years old and married with six children. He finished school at Year 12. He then stayed home for some time rendering services to his family. He later found employment with Silva Transport Ltd and has been working for Silva Transport for nearly twenty years. He is one of the supervisors for Silva Transport Ltd and the victim was at the material time working under his supervision. He and the victim are still being employed by Silva Transport Ltd up to now.
10. As it appears from the pre-sentence report, the victim told the probation service that the accused approached him at his home and apologised for what had happened and presented foodstuffs. The victim said he has forgiven the accused. This was confirmed by counsel for the accused who told the Court that the accused had also paid for the victim’s hospital bills.
11. The accused’s wife told the probation service that her husband is a loving person and is the sole provider for their family. She supports her husband in this matter and seeks mercy for her husband.
12. The accused has a recent previous conviction for uttering insulting words. He was convicted and given a suspended sentenced of 6 months.

The Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme

13. After the accused pleaded guilty to the charges against him, he was referred to the Alcohol and Drugs (ADC) clinician for an assessment and report. The report from the clinician recommended that the accused attends the 7 week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme to be followed by supervision. The accused has attended and successfully completed that programme and has graduated with a certificate of due completion.
14. The report from the programme facilitator shows that the accused had attended and actively participated in all the sessions of the programme and has abstained from alcohol consumption since his offending. Counsel for the accused also told the Court in his plea in mitigation that the accused has refrained from alcohol consumption since this offending.

Aggravating features relating to the offending

15. The aggravating features of this offending are the use by the accused of a 2 x 4 piece of timber to hit the victim, the fact that the blows seemed to have aimed at the victim’s head, and the injuries sustained by the victim which necessitated his being taken to the hospital for treatment. The number of blows delivered by the accused is not clear but I would presume that it must have been very few because the members of the staff of Silva Transport Ltd who were present when this incident occurred were quick to intervene and stopped the assault.

Mitigating features relating to the offending

16. The first mitigating feature relating to the offending was the provocative conduct of the victim who was very intoxicated. The staff of Silva Transport Ltd had agreed that the accused being a supervisor was to respond to their boss for his announcement of a pay rise for the staff but the victim, who was working under the supervision of the accused, intervened and spoke in reply to their boss. Even though the victim was told to calm down, he kept on speaking. The second mitigating feature of this offending was that the accused was himself under the influence of alcohol which must have reduced his level of self-control when confronted with the provocation. There is nothing to show that the accused had pre-meditated this offending. Even though intoxication is not a defence, I see no sound reason why it should not be a mitigating factor in relation to the offending in appropriate circumstances. This was supposed to be a happy occasion for the staff and they were celebrating their new pay rise. But the victim intervened and spoke on behalf of the staff even though the staff had agreed for the accused to speak on their behalf.

Aggravating features relating to the accused as offender

17. I do not consider the accused’s previous conviction for uttering insulting words as an aggravating feature relating to him as offender. But it would mean that the accused would not be given credit for previous good character.

Mitigating features relating to the accused as offender

18. The following are considered to be mitigating features relating to the accused as offender: (a) the apology by the accused to the victim and the consequential reconciliation, (b) payment by the accused of the victim’s hospital bills, (c) remorse, (d) the accused has successfully attended and completed the 7 week Toe Afua Se Taeao Fou programme, (e) the accused has stopped consuming alcohol since this offending was committed, and (f) the accused’s early guilty plea.

Discussion

19. I am not satisfied from the prosecution’s summary of facts that the injuries sustained by the victim constituted grievous bodily harm. I am therefore sentencing the accused on the basis of the charge of causing actual bodily harm with intent. Anyhow, even if I were to sentence the accused on the basis of the charge of grievous bodily harm with intent, I would still end up with the same sentence.
20. Having regard to the aggravating and mitigating features relating to the offending as well as the mitigating features relating to the accused as offender, I have decided to impose a non-custodial sentence. But I must warn the accused not to re-offend because if he does he will probably end up in prison. And that would not only affect him personally but also his wife and children who depend on him as their sole provider. It is therefore in the interests of the accused and his family that the accused does not re-offend.

Result

21. The accused is convicted and sentenced to 12 months supervision on the conditions that he is to attend the probation service anger and alcohol management programme and to perform 40 hours community service.

CHIEF JUSTICE