Police v Gaugau [2018] WSSC 82 (16 May 2018)

IN THE SUPREME COURT OF SAMOA
Police v Gaugau [2018] WSSC 82

Case name:	Police v Masuaga Meafou Sula Gaugau
Citation:	[2018] WSSC 82
Decision date:	16 May 2018
Parties:	POLICE (Informant) and MASUAGA MEAFOU SULA GAUGAU, male of Fusi, Tanugamanono, Lalomalava and Satapuala (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 assault with intent to cause grievous bodily harm: (a) You are convicted and sentenced to 1 year and 9 months imprisonment less time remanded in custody; and (b) on your release from prison, you are to be under the supervision of the Probation Service for 6 months and to attend any programs as directed by the Probation Service.
Representation:	F Ioane and L Mamaia Defendant self represented
Catchwords:	assault with intent to cause grievous bodily harm, remorse, reconciliation
Words and phrases:	suffered multiple lacerations to his head, armed yourself with a rock and a pipe and struck the back of the victim’s head with the rock, include a rehabilitation component at the end of your imprisonment term to address your rehabilitation after your release.
Legislation cited:
Cases cited:	(Police v Lilo [2015] WSSC 122 (13 April 2015)), Police v Napa [2017] WSSC 22 (12 April 2017) a Sentence Decision of His Honour Sapolu CJ.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E
Prosecution

AND:

MASUAGA MEAFOU SULA GAUGAU, male of Fusi, Tanugamanono, Lalomalava and Satapuala
Accused

Counsel:
F Ioane and L Mamaia for Prosecution
Accused self represented

Sentence: 16 May 2018

SENTENCE

The Charges:

1. Masuaga, you appear for sentence that at Moto’otua on or about the 28^th day of December 2017 with intent to cause grievous bodily harm, wounded Patric Alaiva’a. 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 the 28^th December 2017 at around 4.00am, you heard the victim and his cousins making noise in front of the hospital after they had been drinking. You armed yourself with rocks and threw those at the victim and his cousins. When they approached you, you ran off. When the victim and his cousins reached the LDS Church at Motootua, you returned with a group of males. You approached the victim, armed yourself with a rock and a pipe and struck the back of the victim’s head with the rock. When the victim fell to the ground, you again struck the victim, this time with the steel pipe causing the victim to lose consciousness. Together with the other males, you then continued to assault the victim.
3. You explained that what led to the original altercation with the victim and his cousins was that when the victim and his cousins were told to quiet down by an old lady, they spoke to her rudely. That made you angry and you intervened at the front of the hospital. You explained that later when you approached the victim and his cousins at the LDS Church, they first threw stones at you and it was those stones that you threw back at them.
4. As a result of the assault on the victim, he suffered multiple lacerations to his head requiring 6, 8 and 10 stitches, a swollen neck which he could not move for a time, bruises on his legs and arms, a broken hand and lacerations inside his mouth.

The Accused:

5. You are a single 21 year old male of Tanugamanono. According to your PSR, you completed school reaching year 12. You are employed at a retail store in Apia earning $220 per week. You have positive character references in support of your character.

The Victim:

6. The victim is a 32 year old male of Apia. In his VIR, he explains that as a result of his injuries, he suffered pain from those injuries and as at the time of preparing his VIR in April 2018, he could feel pain on his head when he touched the areas of his wounds. Reconciliation has taken place with the victim.

Aggravating features:

7. The aggravating features of your offending are:
   • Premeditation;
   • The use of weapons, namely a rock and a pipe to strike your victim;
   • That you struck the victim aiming at his head;
   • The vulnerability of the victim when you carried out your assault striking the back of his head and assaulting him while on the ground and then when unconscious; and
   • Group attack on the victim.

The mitigating features:

8. I do not find provocation as a mitigating factor of your offending. This is because after you left the original scene of the dispute at the hospital, you went and found other males to come with you to go to the victim and his cousins. You had a good opportunity to carefully consider your actions but instead of going home and staying home, you went and found other males to come with you to engage the victim and his cousins and which you did at the front of the LDS Church, Moto’otua.
9. The mitigating factors personal to you is your prior good character, remorse, reconciliation with the victim and your early guilty plea.

Discussion:

10. Masuaga, blows to the head with the use of weapons is an aggravating factor to your offending which I consider to be a serious factor given the nature of that assault to the head (Police v Lilo [2015] WSSC 122 (13 April 2015)). You did so using both a rock and a steel pipe and the original blow at least was to the back of your victim’s head. You were also the leader of your group that went to the LDS Church and engaged in the altercation that occurred there.
11. Senseless violence of this nature come before the Courts far too often and too often, end in tragic consequences. Young men, such as yourself, feeling wronged, resorting to violence when the appropriate response would have been to go home and stay home or if the victim and his cousins were a disturbance, then to call Police. For young men who respond with violence in this way, it almost always end up the young man appearing either as a defendant facing criminal charges or as a victim who has ended up on the losing end of the altercation. Either way for the young men who resort to violence in the way that you have, the outcome is almost inevitably a bad one – either as a victim or as a Defendant facing possible imprisonment.
12. Prosecution seeks an imprisonment term with a start point of 3 years. I have reviewed the authorities that I have been referred as well as Police v Napa [2017] WSSC 22 (12 April 2017), a Sentence Decision of His Honour Sapolu CJ. I accept that a 3 year start point for sentence is appropriate.
13. Accordingly, from the start point of 3 years imprisonment, I reduce your sentence by 8 months for your genuine remorse, prior good character and reconciliation with the victim. From the balance, I deduct 7 months for your early guilty plea. I will include a rehabilitation component at the end of your imprisonment term to address your rehabilitation after your release.

The penalty:

14. In terms of the charge of assault with intent to cause grievous bodily harm:
    • (c) You are convicted and sentenced to 1 year and 9 months imprisonment less time remanded in custody; and
    • (d) on your release from prison, you are to be under the supervision of the Probation Service for 6 months and to attend any programs as directed by the Probation Service.

JUSTICE CLARKE