Police v David [2018] WSSC 95 (7 September 2018)

SUPREME COURT OF SAMOA
Police v David [2018] WSSC 95

Case name:	Police v David
Citation:	[2018] WSSC 95
Decision date:	7 September 2018
Parties:	POLICE v DOUGLAS DAVID and SE’U STANLEY DAVID both males of Leulumoega-tuai.
Hearing date(s):
File number(s):	S991/18
Jurisdiction:	Criminal
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	CHIEF JUSTICE SAPOLU
On appeal from:
Order:	- The first accused is convicted and discharged of the reduced charge of assault - Applying the totality principle of sentencing, the second accused is convicted and sentenced to 12 months imprisonment. - Any time spent in custody before sentence is to be further deducted.
Representation:	L Sua-Mailo 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– sentence
Words and phrases:
Legislation cited:	Crimes Act 2013, S118 (1), s.119 (1)
	Police Offences Ordinance 1961s.25, s4 (g)
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

DOUGLAS DAVID and SE’U STANLEY DAVID both males of Leulumoega-tuai.
Prosecution

Counsel:
L Sua-Mailo for prosecution
Accused in person

Sentence: 7 September 2018

S E N T E N C E

The charges

1. The first-named defendant Douglas David appears for sentence on one charge of 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. To the charge, he pleaded guilty at the earliest opportunity.
2. The second-named accused Se’u Stanley David appears for sentence on one charge of grievous bodily harm, 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; 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; and one charge of using threatening words, contrary to s.4 (g) of the Ordinance, which carries a maximum penalty of 3 months imprisonment or a fine of 2 penalty units. To all these charges he pleaded guilty at the earliest opportunity.

The offending

3. According to the prosecution summary of facts accepted by both accused, the first victim (Luki) is the eldest brother of the accused and the second victim (Tapuono) is the youngest of the accused. At Leulumoega-tuai on 24 May 2018, between 5:00pm and 6:00pm, the second-named accused Seu and his two nephews used the first-named accused’s flashlight when they went to a nearby shop. When they returned from the shop, the second-named accused returned the flashlight to the first-named accused Douglas. Later in the evening, the second-accused and the first victim had a drink up near their house. Not long after, the first accused approached his two nephews who were sitting next to the second accused and the first victim and questioned them as to who had damaged his flashlight. The first victim intervened and told the first accused “E sili ai loa lou alu eke moe ke’i ua ou fasia oe”. The first accused then walked away to the house without any response. A short time after that, the second accused and the first victim had an altercation which resulted in the second accused saying “Ua lelei la o le a ou alu e aumai le sapelu e sogi ese ai lou ulu”. The two men then had a fist fight.
4. The first accused and his sister the second victim then ran over to stop the fight. At that time, the second accused was lying on the ground unconscious. The first accused then intervened and assaulted the first victim. When the second accused regained consciousness, he grabbed a kitchen knife from inside a car. Whilst the first accused and the second accused were still fighting, the second accused stabbed the first victim firstly in the eye, secondly around the neck, and thirdly in the stomach. This caused the first victim to fall down. The second victim then tried to protect the first victim by wrapping her hands around him. However, the second accused tried to stab the first victim again. The knife stabbed the second victim instead.
5. The two victims were then rushed to the Leulumoega District Hospital. They were later transferred to the Apia National Hospital. The medical report on the first victim shows that he sustained a lacerated wound with the oedema of the right eye, a lacerated wound on the right side of the neck, and a stabled wound 6-7cm and 1cm deep on the right side of the abdomen. The medical report on the second victim shows that she sustained a shallow cut on the forehead and a small cut on her little finger.
6. It is not clear from the prosecution summary of facts whether the first accused caused any injuries to the first victim. What happened, according to the summary of facts, was that when the first accused and the second victim ran over to the scene of this incident, they found the second accused lying on the ground unconscious. The first accused then assaulted the first victim. There is nothing in the summary of facts to show that the first accused sustained any injuries from that assault. The injuries on the first victim and second victim shown in the summary of facts suggest that they were caused with a sharp object such as a knife and hot with bare fists. I will therefore reduce the charge of causing actual bodily harm with intent against the first accused to one of assault even though the first accused has pleaded guilty to the charge of causing actual bodily harm with intent.

The accused

7. The first accused is 45 years old, single, and currently unemployed. The second accused is 46 years old, widower with three children, and currently unemployed. The first victim who is 49 years old is the eldest brother of the accused and the second victim who is 43 years old is their youngest sister.
8. As shown from his pre-sentence report, the first accused had a low level of education having finished school in Year 8. He then worked as a gardener and groundsman for several families. He started drinking alcohol at a fairly young age. He later became involved in a car accident which affected his skull. Since that time, members of his family have noticed a change in his behaviour in that he has become anxious and short tempered all the time.
9. Character references from the pastor of his church and the pulenuu of his village of Leulumoega relay positive aspects of the first accused’s character. The first accused has also attended and successfully completed the 7 week Toe Afua Se Taeao Fou programme and the Tofa Fetalai anger management and violence prevention programme of the Alcohol and Drugs Court (ADC). He no longer consumes alcohol. He is also a first offender.
10. This matter has been reconciled and settled within the family of the accused and the victims. It appears from the summary of facts that the reason for the first accused assaulting the first victim was when he and his sister the second victim found the second accused lying unconscious on the ground with the first victim standing close by. The first victim also told the probation service that he wants this matter to be withdrawn as he is the person who was at fault. The first accused has also apologised to the victims.
11. The first accused was fined $1,000 by the village council of Leulumoega and has been banished from the village.
12. In relation to the second accused, his pre-sentence report shows that he finished school at Year 12. He later migrated to American Samoa where he held maritime jobs as a harbor maritime employee and later as a captain of a long line fishing vessel. In 2010, he returned to Samoa at the request of his mother and because his wife passed away.
13. Character references from the pastor of his church and the pulenuu of his village of Leulumoega relay positive aspects of the second accused’s character. He has also attended and successfully completed the Toe Afua Se Taeao Fou programme and the Tofā Fetalai anger management and violence prevention programme of the ADC. He is also a first offender.
14. As already mentioned, this matter has been reconciled and settled within the family. The first victim has also told the probation service that he wants to withdraw this matter as it was him who started it. The second accused has also apologised to the victims.
15. Like the first accused, the second accused was also fined $1,000 by the village council of Leulumoega and has been banished from the village.

Victim impact report

16. The victim impact report on the first victim shows that the first victim has lost his sense of sight in his right eye which can no longer be opened. He will be undergoing surgery on his right eye sometime soon. He still feels pain inside his right eye sometimes. As a result of his injuries, he was hospitalised for three weeks.
17. The victim impact report on the second victim shows only the injuries sustained by the second victim and the sum of $60 spent on medical expenses.

Aggravating features relating to the offending

18. In respect of the first accused, there is no aggravating feature relating to this offending. He was provoked to react and assaulted the first victim when he and his sister the second victim found the second accused lying unconscious on the ground. There is also nothing to show that any of the injuries sustained by the first victim was caused by the first accused.
19. In respect of the second accused, the following aggravating features relate to this offending:
    • (a) use of a weapon , namely, a kitchen knife;
    • (b) number of stabs delivered, namely, four stabs;
    • (c) vulnerability of the first victim who was unarmed and focusing on the first accused he was fighting with;
    • (d) at least two of the stabs were aimed at the head area of the first victim;
    • (e) injuries sustained by the first victim, and
    • (f) impact of the offending on the victims especially the first victim who has lost his vision in his right eye.

The mitigating features relating to the offending

20. Provocation is a mitigating feature relating to the offending.

The mitigating features relating to both accused as offenders

21. The following are the mitigating features relating to both accused as offenders:
    • (a) previous good character,
    • (b) reconciliation,
    • (c) remorse,
    • (d) penalties imposed by the village council, namely, heavy fines and banishment,
    • (e) successful completion of the rehabilitation programmes of the ADC, and
    • (f) early guilty pleas.

Discussion

22. Having regard to the aggravating and mitigating features relating to the offending by the first accused, I have decided not to impose a custodial sentence on the reduced charge of assault against him.
23. Having regard to the aggravating features relating to the offending by the second accused, I will take 3½ years as the starting point for sentence. I will then deduct 6 months for the mitigating feature, namely, provocation relating to the offending. That leaves 3 years. I will then deduct 18 months for the mitigating features relating to the second accused as offender but not including his early guilty plea. That leaves 18 months. I will then deduct 1/3 or 6 months for the early guilty plea. That leaves 12 months.

Result

24. The first accused is convicted and discharged of the reduced charge of assault.
25. Applying the totality principle of sentencing, the second accused is convicted and sentenced to 12 months imprisonment. Any time spent in custody before sentence is to be further deducted.

CHIEF JUSTICE