Police v Ioane [2018] WSSC 69 (6 June 2018)

SUPREME COURT OF SAMOA
Police v Ioane [2018] WSSC 69

Case name:	Police v Ioane
Citation:	[2018] WSSC 69
Decision date:	6 June 2018
Parties:	POLICE v ISITOLO IOANE male of Vaiusu.
Hearing date(s):
File number(s):	S1285/1
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- Convicted and sentenced to 2 years and 3 months imprisonment. - The time that the accused has already spent in custody pending the outcome of this matter is to be further deducted
Representation:	I Atoa for prosecution Accused in person
Catchwords:	Alcohol and Drugs Court (ADC) – ADC clinician – ADC rehabilitation and treatment programmes – aggravating features relating to the offending – aggravating features relating to the accused as offender – mitigating features relating to the accused as offender – starting point for sentence – reconciliation – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.118 (1) , s.119(1) Police Offences Ordinance 1961s.26, 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

ISITOLO IOANE male of Vaiusu.
Accused

Counsel:
L I Atoa for prosecution
Accused in person

Sentence: 6 June 2018

S E N T E N C E

The charges

1. The accused appears for sentence on the following six charges:
   • (a) causing grievous bodily injury with intent, contrary to s.118 (1) of the Crimes Act 2013, which carries a maximum penalty of 10 years imprisonment;
   • (b) throwing stones to the danger of a person, contrary to s.26 of the Police Offences Ordinance 1961, which carries a maximum penalty of one year imprisonment;
   • (c) two counts of being armed with a dangerous weapon, contrary to s.25 of the Police Offences Ordinance 1961, each of which carries a maximum penalty of one year imprisonment;
   • (d) causing actual bodily harm with intent, contrary to s.119 (1) of the Crimes Act 2013, which carries a maximum penalty of 7 years imprisonment; and
   • (e) assault, contrary to s.123 of the Act, which carries a maximum penalty of one year imprisonment.
2. To the above charges, the accused pleaded guilty at the earliest opportunity on 11 September 2017.

The Alcohol and Drugs Court (ADC)

3. After the accused had pleaded guilty to the charges against him, he was referred to the ADC clinician for screening as his offending was alcohol related. The ADC clinician recommended that the accused be referred back to her for further assessment. The recommendation by the clinician was accepted. After further assessment, the accused was referred to the ADC for a determination hearing where the accused was accepted into the ADC rehabilitation and treatment programmes. The accused completed twelve weeks of the intensive programme and five weeks of the eight week relapse programme. He did not complete the last phase of his treatment and behavioural plan and did not attend the last three weeks or his last scheduled Court monitoring. He also breached his bail conditions on 27 April 2018. As a consequence, he was exited from the ADC and referred back to this Court for sentencing.

The offending

4. There are some discrepancies between the prosecution summary of facts and the version given by the accused to the probation service of what happened in this incident and which appears in the pre-sentence report. The accused maintained before this Court that what he told the probation service is the correct version of what happened. Counsel for the prosecution then agreed to proceed on the basis of what the accused had told the probation service except that the accused did throw a stone at the victim but missed which was admitted by the accused before this Court.
5. The accused told the probation service that on the night of this incident, he was drinking beer at a bar. He left the bar at around 11pm to return home at Vaiusu. When he arrived home, he went to a shop at Vaiusu to buy cigarettes. It was there that the accused saw the victim and several village youths drinking alcohol in front of the shop. As the accused was walking back to his home, the victim and his friends followed him. He was then punched by the victim who ran off with his friends. The accused gave chase. He picked up a screwdriver which he found beside the footpath and continued to chase after the victim and his friends. Unfortunately for the victim, he tripped and fell down. The accused come over and started punching and stabbing the victim with the screwdriver while the victim was lying on the ground. The accused told the probation service that he stabbed the victim on his leg, on his back, and on his side. The victim pleaded with the accused that he wanted to live. Someone who passed by found the accused sitting on the victim and removed him. The police were called and the accused was arrested the same night.
6. As a consequence of this offending, the victim was admitted at the hospital for ten days. It is unfortunate that there is no medical report available to the Court to show the true nature of the injuries to the victim.

The victim

7. The victim report shows that the victim is 24 years old and is from the same village as the accused. It also shows that the victim had injuries to the right side of his body from below his right armpit to his abdomen as well as to his back and left hip. The victim still feels pain inside his abdomen at times.

The accused

8. As shown from the pre-sentence report, the accused is 23 years old, married, and has two young children, a baby and a one year old child. He comes from a low income family. He left school at Year 11. He found employment as a taxidriver for his uncle and then at a wholesale company. At the time of this offending, he was unemployed and was staying home rendering service to his family at Vaiusu.
9. The pre-sentence report also shows that the accused has not been totally honest with the probation service. He told the probation service that his family visited the victim whilst in the hospital and a monetary gift and a fine mat was presented by his family to the victim’s family for reconciliation. However, the victim’s mother told the probation service that whilst the accused’s father made regular visits to the victim at the hospital, she denies that her family has received any monetary gifts or fine mat from the accused’s family.
10. The accused also told the probation service that he was penalised by his village and fined $400 and his family has presented $400 to the village. The pulenuu of Vaiusu confirmed to the probation service that the village fined the accused $400 but his family has only paid $200.
11. The accused further told the probation service that the victim has been banished by the village because of his involvement in this matter. This is denied by the victim’s mother and the pulenuu of Vaiusu.
12. The accused has a previous conviction dated 12 December 2016 for misleading and resisting the police for which he was convicted and discharged. The records of the ADC show that whilst the accused was attending the programmes of that Court, he reoffended for public disorderly or drunkenness and was fined. This was admitted by the accused before this Court. In fact, it is one of the reasons for the accused being exited from the ADC.

The aggravating features relating to the offending

13. The following are the aggravating features relating to this offending:
    • (a) the use of a weapon, namely, a stone to throw at the victim and a screwdriver to stab the victim;
    • (b) several stabs were delivered to the victim;
    • (c) high degree of violence involved as the victim was not only stabbed several times but also punched several times;
    • (d) high degree of premeditation as the victim and his friends were running away but the accused chased after them;
    • (e) vulnerability of the victim as he had fallen down and was lying on the ground when the accused attacked him; he was also sitting on the victim who was pleading for his life when a passerby saw what was happening and removed the accused from the victim; and
    • (f) impact of the offending on the victim in terms of the injuries he suffered, his hospitalisation for then days, and the pain that he still feels at times inside his abdomen.

The mitigating features relating to the offending

14. The only mitigating feature relating to this offending is the provocation from the victim who first punched the accused on the right cheek as he was leaving the shop to return home.

The aggravating features relating to the accused as offender

15. I would not consider the accused’s previous conviction in 2016 as an aggravating feature relating to him as offender. Likewise, his subsequent reoffending whilst attending the ADC programmes. I would also not consider the accused’s lack of honesty with what he told the probation service. What all of this means is that the accused would not be entitled to any credit for previous good character.

The mitigating features relating to the accused as offender

16. The following are the mitigating features relating to the accused as offender:
    • (a) reconciliation between the family of the accused and the family of the victim even though the victim’s mother denied that the accused’s family had presented a monetary gift and fine mat to her family;
    • (b) penalty imposed on the accused by his village for which his family has made partial payment of $200; and
    • (c) early guilty plea.

Discussion

17. Having regard to the aggravating and mitigating features relating to the offending, the need for deterrence in this type of case, and the totality principle, I will take 3½ years as the starting point for sentence. I will then deduct 6 months for the reconciliation between the two families and the penalty imposed on the accused by the village. That leaves 3 years. I will then deduct 9 months or 25% for the early guilty plea. That leaves 2 years and 3 months.

Result

18. The following sentences are imposed on the accused:
    • (a) For the charge of causing grievous bodily injury, the accused is convicted and sentenced to 2 years and 3 months imprisonment.
    • (b) For the charge of causing actual bodily injury with intent, the accused is convicted and sentenced to 2 years imprisonment.
    • (c) For the charge of assault, the accused is convicted and sentenced to 9 months imprisonment.
    • (d) For the charge of throwing stones to the danger of a person, the accused is convicted and sentenced to 4 months imprisonment.
    • (e) For each of the two charges of being armed with a dangerous weapon, the accused is convicted and sentenced to 6 months imprisonment.
19. All the above sentences are to be concurrent so that the accused will serve only 2 years and 3 months imprisonment.
20. The time that the accused has already spent in custody pending the outcome of this matter is to be further deducted.

CHIEF JUSTICE