Police v Polataivao [2018] WSSC 46 (12 April 2018)

SUPREME COURT OF SAM OA
Police v Polataivao [2018] WSSC 46

Case name:	Police v Polataivao
Citation:	[2018] WSSC 46
Decision date:	12 April 2018
Parties:	POLICE v SOONAFAI FAATAU POLATAIVAO male of Vaitele-uta and Sasina.
Hearing date(s):	26, 28 March 2018, 9 April 2018
File number(s):	S1929/17
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Convicted of the charges against him and sentenced to 15 months supervision. He is also to perform 160 hours of community service as directed by the probation service and to attend the anger management programme provided by the probation service
Representation:	L Mamaia for prosecution P Chang for accused
Catchwords:	Alcohol and Drugs Court (ADC) clinician – armed with a dangerous weapon – aggravating features relating to the accused as offender – anger management programme – causing grievous injury with intent –mitigating features relating to the accused as offender –Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme
Words and phrases:
Legislation cited:	Crimes Act 2013,s.118 (1) Police Offence Ordinances 1961, s.25
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

SOONAFAI FAATAU POLATAIVAO male of Vaitele-uta and Sasina
Prosecution

Counsel:
L Mamaia for prosecution
P Chang for accused

Sentence: 12 April 2018

S E N T E N C E

The charges

1. The accused appears for sentence on one charge of causing grievous injury with intent, contrary to s.118 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment, and one charge of being armed with a dangerous weapon, contrary to s.25 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment. To both charges, the accused pleaded guilty at the first reasonable opportunity.

The offending

2. The prosecution amended summary of facts, accepted by the accused, shows that on Saturday evening 28 October 2017, the accused and the victim were drinking with their colleagues at their employer’s premises at Vaitele-uta. Whilst drinking, a dispute arose amongst their colleagues and the victim’s cousins. Subsequently, the victim became involved. At the same time, the accused arrived from dropping off their other colleagues at Leauvaa and he, too, became involved. He armed himself with a brick and threw it at the victim which hit the victim on the right side of his head. The victim sustained a deep laceration on the side of his head which required ten stitches and minor bruising. The defence did not dispute whether the laceration is truly a serious bodily injury or whether it should have been regarded as an actual bodily harm. This is relevant because of the different maximum penalties for the offence of causing grievous bodily harm with intent under s.118 (1) and the offence of causing actual bodily harm with intent under s.119 (1).

The accused

3. The pre-sentence report shows that the accused is 53 years old, single, and currently employed. He grew up in a family of low income at Fagae’e, Savaii, where he started his formal education at the Sasina primary school. He left school after form 5 and later worked on a plantation at Vaisala, Savaii. He started working for his present employer at Vaitele about ten years ago.
4. After the accused pleaded guilty to the charges against him, he was referred to the Alcohol and Drugs Court (ADC) clinician for screening. The ADC clinician recommended that the accused attends the 8 week Toe Afua Se Taeao Fou psycho-education Alcohol and Drugs Programme which the accused has successfully completed and from which he graduated with a certificate of due completion.
5. The oral testimonial provided by the accused’s sister to the probation service shows that the accused is a person of good character. She also told the probation service that her brother has benefitted from the ADC’s rehabilitation programme and that he is now more committed to his church than ever before. She pleads for mercy on her brother.
6. The written testimonial from the accused’s employer shows that the accused is a reliable and responsible employee who is keen to learn any new trade. The accused has also apologised to his employer and promised that what has happened will not happen again. His employer accepted the accused’s apology and has continued to employ him.
7. The accused’s employer also says in his testimonial that the accused’s working relationship with the victim has been restored and that the accused has already apologised to the victim and the victim’s family. Since the accused attended the ADC programme he has stopped consuming alcohol.
8. The written testimonial from the pastor of the accused’s church shows that the accused attends church regularly and is an active, cooperative, and supportive member of his church. The accused has also expressed remorse to the pastor of his church for what had happened.
9. In his statutory declaration, the victim says that the accused is his brother in law. He also says that since the accused attended the ADC programme he has stopped drinking and he has noticed positive changes in the accused.
10. The accused admits to his previous conviction in 2013 for obstruction of a police officer for which he was fined $80.

The victim

11. The victim as shown from the victim impact report is 31 years old. He is the accused’s brother in law. They both work for the same employer. The victim says that the accused has apologised to him and his father and this matter has been reconciled. He has also forgiven the accused. The victim also says that he is normal again except when he works in the sun then he would feel pain in his head. As a result of this offending, the victim was hospitalised for three weeks.

Aggravating features relating to the offending

12. The aggravating features relating to this offending are as follows:
    • (a) the use of a brick by the accused to throw at the victim,
    • (b) the brick was clearly aimed at the victim’s head,
    • (c) the impact of the offending on the victim.

The aggravating features relating to the accused as offender

13. The only aggravating feature relating to the accused as offender is his previous conviction in 2013 but I would not place much weight on this.

The mitigating features relating to the accused as offender

14. The mitigating features relating to the accused as offender are as follows:
    • (a) remorse,
    • (b) reconciliation with the victim and their good working relationship has been restored,
    • (c) good character testimonials which suggest that the accused is generally a person of good character except that he appears to be short-tempered at times,
    • (d) successful completion of the ADC programme as a result of which he has stopped drinking,
    • (e) early guilty plea.

Discussion

15. Having regard to the aggravating and mitigating features of this matter, I have decided to give the accused one more chance to redeem himself and to continue with the positive changes he has gained from the ADC programme. The accused must continue to control his drinking and to manage his anger for this maybe his last chance. A repeat of this type of offending in the future will be likely to land him in prison.

Result

16. The accused is convicted of the charges against him and sentenced to 15 months supervision. He is also to perform 160 hours of community service as directed by the probation service and to attend the anger management programme provided by the probation service.
17. Stand down.

CHIEF JUSTICE