Police v Aukuso [2018] WSSC 49 (20 February 2018)

SUPREME COURT OF SAMOA
Police v Aukuso [2018] WSSC 49

Case name:	Police v Aukuso
Citation:	[2018] WSSC 49
Decision date:	20 February 2018
Parties:	POLICE (Informant) and SATUI AUKUSO, male of Tafatafa Falealili & Samata (Accused)
Hearing date(s):
File number(s):
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Justice Leiataualesa Daryl Michael Clarke
On appeal from:
Order:	- In terms of the charge of grievous bodily harm, you are convicted and sentenced: (i) to 1 year imprisonment; and (ii) on your release from prison, you are to be under the supervision of the Probation Service for 9 months and to attend any programs as directed by the Probation Service.
Representation:	L Sio for Prosecution Accused self represented
Catchwords:	Drinking alcohol, verbal argument, use stone to struck the victim.
Words and phrases:
Legislation cited:
Cases cited:	Police v Napa [2017] WSSC 22 (12 April 2017), Police v Amituanai [2017] WSSC 49 (22 February 2017), Police v Vaisola [2017] WSSC 131 (23 October 2017), Tele'a v National Prosecution Office [2017] WSCA 4 (31 March 2017).
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

SATUI AUKUSO, male of Tafatafa Falealili & Samata
Accused

Counsel:
L Sio for Prosecution
Accused self represented

Sentence: 20 February 2018

SENTENCING OF CLARKE J

The Charges:

1. Satui, you appear for sentencing on one charge that at Tafatafa Falealili on the 12^th September 2017, with intention to cause grievous bodily harm, you did cause grievous bodily harm to Siona Malama. The maximum penalty for this offence is up to 10 years imprisonment.

The Offending:

2. According to the Summary of Facts accepted by you, on Tuesday 12 September 2017 at Tafatafa, the victim, a friend and you were drinking alcohol. At about 9.00pm, the three of you began walking to another friend’s home. You got into a verbal argument with the victim. You then punched the victim on the jaw causing him to fall to the ground. You then picked up a stone and struck the victim with it on his left eye. Bystanders then intervened and stopped you.
3. You told the Probation Service that the accused had challenged you to a fight. You then punched him causing him to fall to the ground. You did not mention to the Probation Service that you had struck the victim with a stone. I accept the Summary of Facts that you have confirmed.
4. The injuries suffered by your victim were a laceration above his left eye requiring 9 stitches, swelling on the facial area and a cut on his upper lip.

The Accused:

5. You are a 31 year old male of Samata and Tafatafa Falealili. You completed school to year 12. You are in a de-facto relationship with one child. You are unemployed though you told the Probation Service that your family and daughter rely on your work as a carpenter. As a result of this offending, you have now moved to Lauli’i.
6. You have prior convictions in 2003 and 2011 for theft.

The Victim:

7. The victim is a 41 year old male of Sagone Savaii and Tafatafa Falealili. He is married with 5 children and is unemployed. In his VIR, he says that he was admitted to hospital for 2 weeks as a result of your assault on him.
8. According to your victim, he was surprised when you assaulted him because you were good friends.

Aggravating features:

9. The aggravating features of your matter are:
   • The use of a stone to strike your victim
   • You struck at your victim’s head twice, first punching his jaw and then subsequently, striking his left eye with the stone; and
   • Vulnerability of the victim.
     
10. As your prior offences were for offences of theft and the most recent was in 2011, these are not a factor aggravating to you as an offender. It however means that you are not entitled to a credit for prior good character.

The mitigating features:

11. I do not find provocation as a mitigating factor of your offending. That the victim may have challenged you to a fight is not in my view sufficient provocation to warrant mitigation.
12. The mitigating factors personal to you is your successful completion of the Toe Afua Se Taeao Fou program, the apology rendered on your behalf and your guilty plea. I do not accept you are genuinely remorseful for your offending, despite that being referred to in your Pre-Sentence Report. The reason is that when questioned about your prior convictions in Court, you denied having any prior convictions. Only after an adjournment and being read your Prior Conviction record did you accept that you had two prior convictions. You were not honest with the Court. Having heard from you in mitigation, I also did not consider you genuinely remorseful for your offending. I do not in the circumstances accept that you are genuinely remorseful.

Discussion:

13. Satui, you appear for sentence on what is a very serious charge because it is assault with intent to cause grievous bodily harm causing grievous bodily harm. As a result of your offending, your victim who describes you as having been a very good friend was hospitalized. It is stated in the Summary of Facts and in the victim’s VIR that he was hospitalized for 2 weeks. The victim himself says in the VIR that he was in a critical condition in hospital. It is not clear on the material before the Court how a 9 stitch laceration would result in 2 weeks in hospital but that is not in dispute.
14. Prosecution seeks an imprisonment term with a start point of 5 years imprisonment. Probation recommends that if a non-custodial sentence is to be considered, than it recommends a lengthy community based sentence.
15. I do not view a solely community based sentence as appropriate. I also however consider a start point of 5 years as too high. The nature of your assault together with the injuries suffered by your victim are apparently not as serious as in Police v Napa [2017] WSSC 22 (12 April 2017) where a start point of 3 years was applied involving a sustained attack rendering the victim unconscious with injuries including a laceration on the upper left eye, a laceration on the left cheek, and wounds to the head. In Police v Amituanai [2017] WSSC 49 (22 February 2017), a start point of 12 months was applied where the injuries suffered included permanent loss of 3 teeth, a lacerated oral mucosa, and a swollen upper lip. In Police v Vaisola [2017] WSSC 131 (23 October 2017) where the victim was struck with a piece of timber and his arm fractured , a sentence of 12 months supervision was imposed.
16. Bearing in mind the authorities including Tele'a v National Prosecution Office [2017] WSCA 4 (31 March 2017), the aggravating features of your offending and the lower end nature of the injuries of your victim in these cases, the sentence that will be imposed will be both deterrent based and rehabilitative.
17. I adopt 18 months start point for sentence. I reduce that by 1 month for your successful completion of the Toe Afua Se Taeao Fou Program and 1 month for the apology rendered on your behalf. From the balance, I deduct 4 months for your early guilty plea.

The penalty:

18. In terms of the charge of grievous bodily harm, you are convicted and sentenced:
    • (iii) to 1 year imprisonment; and
    • (iv) on your release from prison, you are to be under the supervision of the Probation Service for 9 months and to attend any programs as directed by the Probation Service.
      

JUSTICE CLARKE